Interplanetary Transport Licensing

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.

 

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2 thoughts on “Interplanetary Transport Licensing

  1. Hey, Laura,
    ‘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.’

    In your Senate testimony this year, you essentially maintain that the US can decide whether to “authorize & continually supervise” private activities; ie
    “It does not say that either all or any particular activity must be authorized, leaving decisions regarding what activities require regulation to the member states.”

    Actually, it does say that; it’s the plain meaning of the text- in fact, it couldn’t be plainer- which is why the rest of Earth is rightly justified in taking it that way (and I think they do). That they”shall” be authorized is US law, as per our Constitution. “The activities of non-governmental entities in outer space, including the moon and other celestial bodies, shall require authorization and continuing supervision.

    The “executable “ as US law, or is non-executable….depends on who agrees what those are, & whether they make a difference here. You’re maintaining that they are “non-executable” would certainly hold water, for example, if the other parties to the treaty agree on applying “executable “ and “non-executable “ in the same way to the same clauses. Even Ted Cruz – the Texas solicitor general who was a party to the Medellin decision you referenced & who agreed with the decision, said in discussing it afterwards that one of the 4 aspects that showed whether something was non-executable was that…

    every other country in the world (emphasis mine) that is a signatory to these treaties likewise deems them not judicially enforceable ((ie self-executing)) in their domestic courts.

    “Accordingly, if Congress hasn’t said that a certain activity, such as lunar harp playing, requires authorization and continuing supervision then lunar harp playing does not.”

    Again, not true; it’s already US law- via the treaty- that such activities “shall” be authorized/supervised; the US (or any state) is not given the authority to choose whether to authorize/supervise; to do those is mandatory. That’s the whole point behind a “shall” statement.

    I think it’s important to realize that the rest of Earth does not consider OST’s provisions as onerous, at all; but already pretty liberal, even innocuous. For the US to have committed to authorizing/supervising….& then to later willy-nilly just declare we didn’t mean it, that we can decide even whether to do so….is bound to provoke a negative reaction, with possible negative consequences. For example, the Moon agreement is not a de facto binding treaty…..but, it’s still out there; something that, if given a provocation, could fairly quickly start getting ratified by the other nations of the world, along with its very real inhibitions on private activities. If the rest of Earth, already believing that we have the most anti-international & reactionary government in our history, sees us violating our commitment even under OST’s already liberal conditions, we run the risk that the rest of the nations of Earth will suddenly decide the Moon Treaty’s very controlling strictures are what’s required. And that’s definitely what we don’t want.

    Rather than needlessly provoke the other nations of Earth by obnoxious behavior, better that we lead by example. For those activities that we feel should require “minimal “ authorization/supervision, let’s have have more open hearings, discussions, amendments, & guiding laws passed for the regulators. Other nations have already started to emulate some of those laws we have passed, & regulatory bodies like AST we have set up. Let’s continue to lead by good, honorable example, towards the regime that we think will support & encourage sustainable space development.

    • Hi Dave, thanks for commenting. If I may respond to a couple points you raise.

      Because Article VI does not say which activities require authorization and supervision, it effectively does leave it to each country to decide what activities require regulation. It would not make sense to require that all activities require licensing. We do many things every day without federal oversight, including brushing our teeth. Few would suggest we need a license for that private activity. Article VI itself suggests that only those activities that pose a risk of liability require regulation when it says that member states bear international responsibility for the acts of their nationals. This provides some guidance, and suggests that only those activities that pose a hazard to others might require regulation. In the U.S., Congress is the part of the government that draws the lines around what requires regulation and what does not. Rather than saying that all activities require regulation, Congress has selected one activity at a time as requiring regulation. Until it decides that something else must be regulated, that activity may proceed without authorization supervision.

      Although you are correct that treaties are the law of the land, that is the case, according to the Supreme Court for the past 200 years, only for self-executing treaties. In 2008, the Supreme Court said that the President couldn’t enforce a non-self-executing treaty. This means that other parts of the Executive Branch can’t either.

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