I had occasion recently to read NASA’s Inter-Governmental Agreement (IGA) with its partners for the International Space Station. Article 16 speaks of launch vehicles returning to Earth, as if they’re launching to Earth. Not that there’s anything wrong with that, but the hair on the back of my neck stood straight up.
A couple of my students saw this, too. Would it break them for commercial space law? Would this glimpse of the Other mess up these two students for the FAA portion of the exam? Would they try to say that the FAA licensed launches to Earth? I sure hoped not, but it looked like another of those circumstances where–like the English and the Americans–the FAA and NASA might be separated by a common language.
I worried because if you are a commercial launch operator (that is, you are a U.S. entity who is not the U.S. government and you are launching a rocket), you launch from Earth, not from space. The law says so. Specifically, 51 USC 50902, which contains the definitions for the law that applies to how the FAA regulates commercial launch and reentry, says that launch means “to place or try to place a launch vehicle or reentry vehicle and any payload or human being from Earth” in a suborbital trajectory or otherwise in space. Note that it says “from Earth.”
It is a rule of statutory interpretation that we must read all the words in a law Congress has passed. We can’t pretend they’re not there. So, when Congress says “from Earth,” Congress means “from Earth.” If you are a commercial operator returning to Earth, you are reentering, not launching.
So what’s the problem? This is the problem: not everyone knows that different laws, different agreements, might define things differently. Communications break down. People spend money unnecessarily or think that a law doesn’t apply. Or, worse, the government thinks a law applies when it doesn’t.
Persons gleaning from the IGA that they could launch to Earth might think they needed an FAA launch license. At one point, the Department of Transportation itself tried to say as much. (Before the space transportation regulatory office moved to the FAA, it was located in the Department of Transportation (DOT) as the Office of Commercial Space Transportation.)
When Congress first passed what was then called the Commercial Space Launch Act in 1984 (CSLA), long before it became 51 USC ch. 509, the CSLA did not define launch as taking place “from Earth.” DOT took this as permission to try to license a reentry from orbit, under the theory that the vehicle was “launching” to Earth. The Chairman of the House Subcommittee on Space admonished DOT for its attempt to exceed its jurisdiction–in other words, for trying to exercise more authority than Congress had granted it. Commercial Space Transportation Reusable Launch Vehicle and Reentry Licensing Regulations, Notice of Proposed Rulemaking, 64 Fed. Reg. 19626, 19628 (Apr. 21, 1999). Congress then clarified the definition of launch by making it clear that launches take place from Earth rather than from orbit. Also, Congress revised its law to grant the FAA authority over reentry, which 51 USC 50902 defines to mean “to return or attempt to return, purposefully, a reentry vehicle and its payload or human beings, if any, from Earth orbit or from outer space to Earth.”
I think it was Winston Churchill who said that Great Britain and the United States were two people separated by a common language. (He was witty, Churchill was). The same concern appears to apply here. Yes, NASA and the FAA use the same words a lot of the time; but, no, they don’t always mean the same thing.
I only have two students who’ve seen the IGA. I don’t know what to do about them, but I won’t ask the rest of them to read it. It’s not on the syllabus. I will keep them safe.
Good point – would Article VII of the UN OST cover? “from whose territory” if cubesats are launched from the Japanese module of the ISS? Yet this opens a whole other set of issues… Do the ISS partners cover this in their MOU or other agreements?
Maybe, but I don’t think we need to answer that question when the better fitting “facility” criteria is available.. In addressing liability, Article VII of the Outer Space Treaty allows for 4 different ways for a country to be internationally responsible for damage:
Each State Party to the Treaty that launches or procures the launching of an object into outer space, including the moon and other celestial bodies, and each State Party from whose territory or facility an object is launched, is internationally liable for damage to another State Party to the Treaty or to its natural or juridical persons by such object or its component parts on the Earth, in air or in outer space, including the moon and other celestial bodies.
A country may be internationally liable for damage if it:
1. launches something
2. procures a launch
3. a launch takes place from its territory, or
4. a launch takes place from its facility
You could probably argue the Japanese module is a facility. Someone else could argue that the whole ISS is a facility and everyone is responsible.