COMSTAC Views on “Continuing Supervision” under Article VI of the Outer Space Treaty

The FAA’s Office of Commercial Space Transportation assigned its advisory committee the task of advising on “industry’s ideal situation for ensuring their activities are in compliance with US treaty obligations.” The FAA also asked how the United States could “best meet its Article VI Outer Space Treaty obligations as it regulates the commercial space transportation industry? What does implementing ‘continuing supervision’ mean to the industry? How will Article VI compliance work in practice?” The Commercial Space Transportation Advisory Committee (COMSTAC) met on October 31 and November 1, and came up with a set of observations, findings, and recommendations for the FAA.  None of the recommendations included the on-site inspector pictured here.

Article VI applies to space activities of U.S. nationals. Some fundamental misunderstandings about what the treaty says may have led to an error or two.  The treaty itself applies both more and less broadly than COMSTAC appears to believe.

COMSTAC’s general background statement says the United States “is required to provide authorization and continuing supervision of space activities that launch from its territory” under the treaty.  What Article VI actually says is that the United States “shall bear international responsibility for national activities in outer space, including the moon and other celestial bodies, whether such activities are carried on by governmental agencies or by non-governmental entities….”  This provision does not limit the United States’ responsibility to only those of its nationals who launch from U.S. territory. Nor does it, as the COMSTAC statement suggests, make the United States responsible for the space activities of foreign operators launching from U.S. territory.   Instead, it only makes the United States responsible for national activities in outer space, but regardless of where they launch from.

Continuing supervision.  COMSTAC goes on to observe that “no single federal agency or department has clear authority for fulfilling Article VI obligations for non-traditional commercial space activities.”  Non-traditional activities may include asteroid mining or satellite servicing.   This is not wrong, although the Senate Commerce, Science, and Transportation Committee’s proposed Space Frontier Act would allow the FAA to continue using its payload review as a form of authorization for non-traditional activities.  An operator sending an object to space undergoes an FAA payload review as part of the launch operator’s application for an FAA launch license.  The payload operator, whether an asteroid miner or a comsat operator, may request a payload review separately from the launch operator seeking an FAA launch license.  One problem with the payload review–although it may satisfy the treaty requirement for authorization– is that it doesn’t look to offer much in the way of continuing supervision.

COMSTAC, however, doesn’t recommend much in the way of continuing supervision, only that:

Article VI’s “continuing supervision” provision … be fully satisfied by a proviso within an approval letter requiring the applicant to update the relevant federal agency or department if there is a substantive change to their proposed non-traditional commercial space activity that was described in the application.

In other words, a non-traditional operator’s updates would be enough to satisfy the treaty’s requirements for continuing supervision.

At first I thought the payload review process might already accommodate this suggestion because of the current requirement to update the FAA if an application for a payload review changes.  However, the regulatory requirement to update the FAA applies in advance of launch.  14 CFR 415.63 requires the reporting of any change in the required payload review information to the FAA in accordance with section 413.17.  That section applies to applications, not to an authorization that the FAA has already  issued.

Once a launch operator receives a license, it is the launch operator who must submit a request for a modification of its license to the FAA.   The requirements for a license modification may contain a little bit of continuing supervision of the payload, but, still, only prior to launch.  Section 417.11, which applies to launches of expendable launch vehicles, appears to require updates related to payloads.  A launch operator must request a license modification from the FAA if its plans regarding flight path, class of payload, or orbital destination change.  Section 431.73, which applies to launches of reusable launch vehicles, also requires an RLV operator to seek a license modification if the class of payload changes.  In short, once an object is launched the FAA’s ability to supervise a non-traditional payload disappears.  Given that the FAA does not have jurisdiction on orbit or elsewhere, this makes sense.