Space Law Review

November 30, 2022

71 47 CFR § 25.158. Some geostationary satellites operate with frequencies and orbital locations that are planned and do not follow the “first come, first served” regulatory system. See general www.itu.int/en/ITU-R/space/snl/Documents/ITU-Space_reg.pdf. Security controls vary depending on the type of activity. The FAA conducts these to determine whether an applicant is capable of launching a launch vehicle and its payload without endangering public health and safety and the safety of property.30 These reviews typically include an analysis of compliance with acceptable flight risk criteria, flight readiness and communication plans. and accident investigation plans and procedures.31 In addition to establishing financial accountability, the FAA will assist other government agencies in conducting policy, safety, payload, and environmental audits for a proposed activity.27 Mr. Plaxco was previously Chief Information Officer for the National Space Society, Privacy Commissioner of the NSS, Vice-President of the NSS and was twice elected to the NSS Board of Directors. Other relevant charitable experiences include serving as President of Northern Illinois Space Advocacy, Vice Chair of the Planetary Studies Foundation, Advisory Board Member of Enterprise in Space, Director of the Enterprise in Space Orbiter Design Competition, and Judging on various NASA-sponsored space art competitions. IAA and SSN. 104 Silver, “Luxembourg adopts first EU law on space mining. You can own the spice”, The Register (14 July 2017), www.theregister.co.uk/2017/07/14/luxembourg_passes_space_mining_law. The Space 6 Directive was also adopted in December 2020. It is an updated national strategy for space nuclear energy and propulsion (SNPP).

It establishes a national strategy for the development and use of NPS systems for scientific, exploration, national security and commercial purposes, and defines objectives and a support pathway to promote the use of NPS systems. In July 2020, the FCC also passed rules allowing CubeSats and other small satellite applicants to choose a streamlined licensing process with a simpler application process, lower application fees, and shorter review time.80 The goal is to license satellites with shorter missions, less intensive use of spectrum and less risk of in-orbit debris production on an optimized basis. This method is generally available for systems with up to 10 small satellites, each with a maximum in-orbit lifetime of six years and a maximum wet mass of 180 kg, operating within 600 km or capable of avoiding collisions.81 42 Office of Space Commerce, Commercial Remote Sensing Policy, p. 4 (2003), www.space.commerce.gov/policy/u-s-commercial-remote-sensing-space-policy/. 105 Space Resources Program, Colorado School of Mines, space.mines.edu. The Space Act allows NASA to acquire, construct, improve, operate, and maintain or interest in laboratories, research facilities, aerospace vehicles, and other real and personal property.87 In addition, NASA has the authority to enter into “other transactions,” commonly referred to as Space Act agreements. These Space Act agreements can be reimbursable, non-refundable, or funded.89 NASA used Space Act-funded agreements for the Commercial Orbital Transportation System (COTS) and the Commercial Crew Program. The agreements facilitated the combination of public and private funding, escaped the burden of the Federal Procurement Regulations, and encouraged speed and innovation to obtain new capabilities. They also helped SpaceX and Orbital ATK develop commercial launch vehicles and helped Sierra Nevada Corporation Space Systems develop the Dream Chaser spacecraft, which has now won a contract from NASA for cargo supply, return and disposal of the ISS.

It is important to note that although CSLA and FAA regulations apply to the launch and re-entry of space objects, there are no regulations for in-orbit operations by the FAA or any other agency. Although it has been proposed to transfer responsibility for in-orbit transport to the FAA or another agency, this regulatory gap remains. 91 Convention on International Liability for Damage Caused by Space Objects, 29 March 1972, 24 UST. 2389, 961 U.N.T.S. 187, www.unoosa.org/oosa/en/ourwork/spacelaw/treaties/liability-convention.html. 92 A `user` of a spacecraft is defined as `any person who enters into an agreement with [NASA] for the use of all or part of a spacecraft, who possesses or makes available property intended to fly on a spacecraft, or who employs a person to fly in a spacecraft`. 51 U.S.C. § 20138(a)(3). One year after the launch of Sputnik by the Soviet Union, the National Aeronautics and Space Act of 1958 (Space Act)82 authorized the creation of NASA.

Congress has declared that “it is the policy of the United States that activities in outer space should be devoted to peaceful purposes for the benefit of all mankind.” 83 Congress also stated: “The general welfare of the United States requires that the Government seek and promote, to the extent possible, the fullest commercial use of outer space.” 84 Christopher Johnson is a space law consultant at the Secure World Foundation and an adjunct professor at Georgetown University Law Center, where he co-teaches the Space Law Seminar. He is also a faculty member of the International Space University and a member of the International Institute of Space Law. Mr. Johnson has written extensively on space law and policy and represents the Secure World Foundation on the United Nations Committee on the Peaceful Uses of Outer Space (COPUOS). Examples of P3s for space activities in the United States include NASA`s use of Space Act-funded agreements,106 which are discussed in section II.iv for COTS. SpaceX and Orbital Sciences received COTS Space Act agreements, and as both companies successfully demonstrated mid-range launch vehicles and cargo capsules, they were awarded follow-on contracts for commercial resupply services in 2008. NASA asked SpaceX and Orbital Sciences to contribute to the costs of research, development and demonstration of COTS, and offered incentives for rapid performance. The terms of the Space Act agreements set reasonable costs and risk sharing, which allows for performance.107 NASA also used the Space Act agreements for its commercial crew program, where it worked with commercial companies to provide reliable and cost-effective manned space transportation to and from the ISS and low-Earth orbit. This tiered program included Space Act agreements between NASA and many U.S. companies, including Boeing, SpaceX, Sierra Nevada Corporation, Blue Origin and ULA. The development programs were funded by NASA and commercial companies. Following capability demonstrations, contracts were awarded to several companies for the certification of commercially constructed and operated crew transport systems.108 Part 460 of the FAA regulations outlines the requirements for human spaceflight approval.