I’m very excited to be on Erika Nesvold’s Making New Worlds today. The podcast explores the ethics of space settlement, and she addresses matters of property rights with a sociologist, a colonial historian, and a space lawyer (that’s me). So, go check out Episode 3: Who Owns Mars. If you want to keep up with new episodes you can follow the podcast on Twitter or Facebook.
Let’s suppose that you want to sell components or services to an FAA launch or reentry licensee for use during its launch or reentry. You know that a launch that goes badly wrong could create what a risk analyst calls a “high consequence event.” You are therefore wondering whether to buy insurance for third party liability coverage or whether the licensee’s insurance could cover you if a court found you liable for contributing to any damages. You are not alone in wondering about this. Someone else did, too, and asked the FAA for a legal interpretation.
Orbital ATK, Inc. asked the FAA whether Orbital, in its capacity as a supplier of composite structures, payload fairings, and other launch vehicle components would need more insurance than what the law required an FAA licensed launch operator to purchase. The Commercial Space Launch Act requires that licensed launch and reentry operators (aka “the licensee”) obtain insurance coverage for any damage a launch or reentry may cause to third parties or government property. Although the FAA declined to advise on whether Orbital ATK should purchase additional insurance, it provided the following primer: Continue reading
Today’s post is not about law but policy. Alberto G. Fairén, a visiting scientist in astronomy at Cornell and a research scientist at Centro de Astrobiología in Spain, argues that planetary protection protocols should be revisited. Because reasonable scientists can disagree about their value and efficacy, Congress might want to think twice before requiring the private sector to follow current planetary protection protocols.
Planetary protection protocols. Article IX of the Outer Space Treaty provides that States Parties must pursue their studies and explorations so as to avoid “harmful contamination” of the moon and other celestial bodies and “adverse changes in the environment of the Earth resulting from the introduction of extraterrestrial matter and, where necessary, shall adopt appropriate measures for this purpose.” As a science agency that is part of the U.S. Government, NASA has applied this to its missions so that it not only avoids what the ordinary person might consider harmful contamination, but microbial contamination as well, limiting the presence of bacterial spores on any surface to no more than 300,000. Accordingly, NASA requires the sterilization of its spacecraft to avoid bringing microorganisms to Mars. ESA, the European Space Agency, follows similar measures.
Counterproductive? Fairén explains the argument for protecting scientific interests through planetary protection: Continue reading
By notice dated November 15, 2017, the Federal Communications Commission proposes to remove its domestic coverage requirement for non-geostationary-satellite orbit (NGSO), fixed-satellite service (FSS) satellite systems. Because the FCC tends to only publish summaries of its notices in the Federal Register, don’t forget to look here for the full text of its Further Notice of Proposed Rulemaking.
In brief, the FCC requires NGSO FSS systems to provide continuous coverage of the fifty states, Puerto Rico and the U.S. Virgin Islands, and prohibits systems with more localized coverages. This approach has resulted in waiver requests:
Let’s say you have designed a spacecraft that will travel from Earth orbit to Mars. Do you, a U.S. entity incorporated in one of the states of the Union, need a license from a federal agency for the activity of traveling between planets? The proper answer is no. Sure, other licenses will apply to related activities, but not to that one.
Being a savvy purchaser of launch services, you plan to place your spacecraft on board an expendable launch vehicle (ELV) operated by Launches ‘R Us. LRU will first get your spacecraft off Earth. Therefore, LRU needs a launch license from the Federal Aviation Administration. Both of you may need communications licenses from the Federal Communications Commission to transmit back to the United States. All space travelers want to be able to phone home. If you or LRU have cameras capable of sensing Earth you will need remote sensing licenses from the National Oceanic and Atmospheric Administration. You might, after all, take pictures of your home planet.
But you won’t need an interplanetary transport license because there isn’t such a thing. Nor is there a certificate, permit, approval, authorization, or other term meaning the same thing as “authorize.”
FAA Licensing. What about the FAA launch license, you ask. Won’t that cover the trip to Mars? (Being as savvy as you are, you are thinking it might be good to remain eligible for the FAA’s so-called “indemnification.”) The definitions in Chapter 509 of Title 51 of the U.S. Code (aka the Commercial Space Launch Act) show that at some point a launch ends. The regulations by which the FAA implements the law are a little more clear. Section 50902(7) of the statute says that “launch means to place or try to place a launch vehicle or reentry vehicle and any payload or human being from Earth–(A) in a suborbital trajectory; (B) in Earth orbit in outer space; or (C) otherwise in outer space ,….” In other words, as far as the law is concerned, it is the placing of something somewhere that constitutes a launch. The launch operator has placed your spacecraft “otherwise in outer space.” Arguably, that could be Mars. However, the FAA’s regulations recognize the subtle point and how launch only covers the placing of something somewhere, and clarify that launch ends for an expandable launch vehicle “after the licensee’s last exercise of control over its launch vehicle.” 14 CFR 401.5. After releasing your spacecraft, the launch operator will shut down its upper stage to comply with the FAA’s debris mitigation requirements, and launch will be over.
The hypothetical posited above is easy. Because LRU operates ELVs and not your spacecraft, LRU needs the launch license. Not you. Your spacecraft is a payload. What if LRU operated a reusable launch vehicle? Section 401.5 of the FAA’s regulations says that in that case, “launch ends after deployment of the payload.” Again, as the payload operator you don’t need a launch license–it wasn’t your launch vehicle that got you where you are, after all–and the launch licensee, having deployed its payload, that is, your spacecraft, is now done with its launch.
I can see that you are getting kind of excited. You think you are going to avoid all sorts of paperwork. Still, you pause: this is all very logical, but is it right? (We all know that the two don’t necessarily go hand in hand.) Now I’m getting excited, because yes, yes it is right, and I can show you where someone very authoritative said the same thing. Let us turn to the Committee Report that accompanied Congress’s grant of reentry authority to the FAA.
Legislative History. First, some historical context. The FAA’s space office, back when it was still located in the Department of Transportation, started out with just the authority to license launches and the operation of launch sites. When it tried to license a reentry of a reentry vehicle on the grounds that the vehicle was launching from space to Earth, the office received a stern letter from its Congressional overseers that the office was exceeding its authority. Eventually, however, Congress did in the late 1990’s grant the office, now in the FAA, the responsibility for and the authority to license the reentry of reentry vehicles, namely, vehicles designed to return to Earth substantially intact. It granted this authority with clear reminders that the FAA should not exceed it:
The original Act intended that a launch ends, as far as the launch vehicle’s payload is concerned, once the launch vehicle places the payload in Earth orbit or in the planned trajectory in outer space. The Committee wishes to make clear that the Secretary has no authority to license or regulate activities that take place between the end of the launch phase and the beginning of the reentry phase, such as maneuvers between two Earth orbits or other non-reentry operations in Earth orbit; or after the end of a launch phase in the case of missions where the payload is not a reentry vehicle.
You will note that the Committee said that once the launch operator puts the payload on its planned trajectory in outer space launch is over. Even if your spacecraft qualified as a reentry vehicle, the transit between Earth and Mars requires no launch license from the FAA because it “has not authority to license or regulate activities that take place between” launch and reentry. Your spacecraft is not a reentry vehicle even if it lands on Mars, because the law defines a reentry vehicle as one designed to return to Earth, and Earth is not Mars.
Outer Space Treaty. Finally, because you really are that savvy, you ask about Article VI of the Outer Space Treaty. It requires that the countries who signed the treaty, and that includes the United States, must authorize and continuously supervise the acts of their nationals in outer space. You are a U.S. national. Does this mean you can’t send your private spacecraft to Mars without an interplanetary transport license even though none exists? No, it doesn’t. Article VI is not self-executing, which means that Congress would have to pass a law to cover interplanetary transport. For a longer explanation, see my Senate testimony. Going by last year’s press release on Moon Express, the FAA may have a different view, but that’s why it would be good for the President to issue an Executive Order on this topic.
This week’s Federal Register offered two interesting space items.
The FAA amended multiple restricted areas around Vandenberg Air Force Base, California. Vandenberg is a launch site for orbital launches, and the FAA’s technical amendment changes the coordinates for special use airspace under 14 C.F.R. part 73. Part 73 governs limits the operation of aircraft within restricted areas. Restrictions are in place during a launch. Although this constitutes a regulatory change, because it is only a technical amendment, the FAA is not offering a comment period.
maritime limits change over time. The FAA has received updated digital data for maritime limits from NOAA. Digital data is more precise than measurements used in the past. The FAA, through the implementation of its data-driven charting process, was able to utilize this new data to accurately update the U.S. maritime limit boundaries used for aeronautical charting. Prior to the update, the maritime limit boundary data used for charting were over 25 years old. In applying the updated data, FAA found that some restricted area boundary descriptions, that were based on the maritime limits, did not correspond to the updated shoreline data. Consequently, there are minor mismatches between some restricted area latitude/longitude coordinates and the actual shoreline position. This rulemaking action updates the affected boundary coordinates of restricted areas R–2516, R–2517, R–2534A and R–2534B, in California to maintain the intended shape of the airspace in relation to the U.S. shoreline and to improve their representations on aeronautical charts.
Effective date: 0901 UTC, February 1, 2018.
Meanwhile, NASA announced a new Centennial Challenge competition for printing a habitat:
The 3D-Printed Habitat (3DPH) Challenge Phase 3 On-Site Habitat Competition is open, and teams that wish to compete may now register. Centennial Challenges is a program of prize competitions to stimulate innovation in technologies of interest and value to NASA and the nation. The 3DPH Challenge Phase 3 On-Site Habitat Competition is a prize competition with a $2,000,000 total prize purse to develop and demonstrate capabilities to autonomously manufacture through 3D-printing technologies a habitat on another planetary body using mission recycled materials and/or local indigenous materials. The Phase 3 competition consists of 5 levels. This technology demonstration competition has great potential value for terrestrial applications.
Registration Date: Registration ends February 15, 2018. See the notice for more dates of significance.
When I prepared last week’s post on CNAS’s proposed Space Policy for the Trump Administration, I did not plan a two part series. However, last week’s post got long, and, more importantly, the writers had proposed using letters of marque, which are semi-piratical and kind of glorious. So that pretty much mandated a second post, because space pirates. (Not really space pirates, of course, because letters of marque make otherwise questionable activities ok.)
Letters of Marque. The authors raised the possibility of the government enlisting the private sector to clean up space debris.
Much in the same way as Congress used letters of marque to allow private maritime vessels to act as military tools of the state—with the promise of payment and profit for their efforts—the government could entice private space ventures to participate in a public mission: cleaning up space debris, acting as situational awareness networks, and servicing nearby satellites, among many other tasks.
This is charming, and presumably letters of marque are not the same as government contracting. Although the authors may have raised letters of marque purely for historical context, the somewhat hostile implications of these instruments spark questions for debris removal. The U.S. Constitution, Art. I, Sec. 8, cl. 11, states that the Congress shall have the power to “Declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water.” According to scholars,
At the time of the Founding, the sovereign authorized holders of letters of marque and reprisal to engage in hostile actions against enemies of the state. The common understanding of “Reprisal” is a seizure of property (or sometimes persons) of a foreign state for redressing an injury committed by that state.
If the authors do indeed recommend the use of letters of marque, it could mean they recommend the removal of orbital debris with or without the debris owner’s permission, up to and including the debris of foreign nation states. Would it be better if that’s not what they mean?
Regardless of whether the government issued letters of marque or merely entered into contracts with the private sector, would the proposal run afoul of Article VIII of the Outer Space Treaty? Article VIII says that ownership of an object is not changed by it being in space. This suggests that a space object cannot be considered abandoned. Just to make it really hard to hold a civic clean-up day, that same provision says that “[s]uch objects or component parts found beyond the limits of the State Party to the Treaty on whose registry they are carried shall be returned to that State Party, which shall, upon request, furnish identifying data prior to their return.” I’ve heard lots of of people say that one may not salvage in space due to the requirement that objects be returned to the state of registry. Are they right? One would need to check before issuing letters of marque or even taking the more plebeian route available through the Federal Acquisition Regulations.
Could, however, the maritime analog apply here? After all, you can own something terrestrially but abandon it or otherwise sit on your rights. Article VIII says that “ownership of objects…is not affected by their presence in outer space.” Arguably, if ownership is not affected by being in space, all the usual rules of ownership, including principles of abandonment, might not be affected either. There is however, the owners’ pesky anticipation of getting their stuff back if someone else gets a hold of it. Nonetheless, this perspective creates interesting possibilities.
Finally, for anyone sailing the stellar seas under a letter of marque, it might be good to know where liability lies before starting to scavenge in orbit. Personally, I’d go look at state laws regarding tow truck operations.
By notice dated November 3 in the Federal Register, the Department of Transportation announced that it is reopening the comment period for its Regulatory Review. This notice applies to, among other regulatory regimes, the commercial space regulations of 14 C.F.R. Ch. III. Commenters must file by December 1, 2017.
The original notice explained that DOT needed to know about regulations that would be appropriate for suspension, repeal, replacement, or modification. It asked the public to consider whether any of its regulations provided the opportunity to, in relevant part:
(4) eliminate conflicts and inconsistencies with the rules of other Federal agencies or state, local, or tribal governments, … (6) revise regulations in which technology, economic conditions or other factors have changed in the area affected by the regulation; (7) reconsider regulations that were based on scientific or other information that has been discredited or superseded; (8) reconsider the burdens imposed on those directly or indirectly affected by the regulation and, specifically, those that are costly when compared to the benefit provided; (9) reconsider burdens imposed on small entities; (10) foster innovation by revising regulations to include performance standards for regulatory compliance; and (11) reduce burdens by incorporating international or industry consensus standards into regulations.
Additionally, DOT provides guidance on how to make any comments submitted more useful:
1. Specific reference. A specific reference to the policy statement, guidance document, regulation, or other agency action that imposes the burden that the comment discusses. This should be a citation to the Code of Federal Regulations, a guidance document number, or an Internet link. A specific reference will assist the Department in identifying the requirement, the original source of the requirement, and relevant documentation that may describe the history and effects of the requirement.
2. Description of burden. A description of the burden that the identified policy statement, guidance document, regulation, or other agency action imposes. A comment that describes how the policy statement, guidance document, regulation, or other agency action is burdensome is more useful than a comment that merely asserts that it is burdensome. Comments that reflect experience with the requirement and provide data describing that experience are more credible than comments that are not tied to direct experience. Verifiable, quantifiable data describing burdens are more useful than anecdotal descriptions.
3. Description of less burdensome alternatives. If the commenter believes that the objective that motivated the policy statement, guidance document, regulation, or other agency action may be achieved using a less burdensome alternative, the commenter should describe that alternative in detail. Likewise, if the commenter believes that there is not a less burdensome alternative or there is not a legitimate objective motivating the requirement, then that should be explained in the comment.
Comments due by: December 1, 2017