Space Law & Order?
ABA International Law's Spring Meeting
As I've previously blogged, the international law section does have an Aerospace and Defense Industries Committee. Its chair, Howard Stanislawski of Sidley Austin, sends a reminder that the committee will host a breakfast on the morning of May 3, also at the busy Fairmont Hotel. If you have questions, etc., Howard's email is email@example.com.
And if you have to miss the Spring festivities, to keep on top of what's coming up next sign up for the aerospace and defense industries committee's listserve at INTAERODEF@mail.abanet.org.
More space law wanted!
Flight International has a short article this week that wasn't exactly surprising. The Personal Spaceflight Federation wants a law like Virginia's Spaceflight Liability and Immunity Act enacted in all states with their own commercial spaceports.
Alex Tai, PSF chairman and of course chief operating officer of Virgin Galactic is quoted as saying, "We are planning for the day we are in court. We need the right legislation and the right insurance."
Agreed. Of course, "in court" is last place the personal spaceflight industry needs to be. If it happens, hopefully it will later rather than sooner. As we say here on SLP, building the space vehicles should be the hard part.
(By the way, the article refers to Virginia's ground-breaking immunity act as "new legislation that Virginia's state legislature is in the process of approving." In fact, the process is complete: it is the law, effective July 1, 2007.)
When it comes to -- yuck -- law, especially for folks with that libertarian spirit who are most attracted to the commercial spaceflight industry, less is usually more than enough. But in light of as-yet unsettled and potentially industry-crippling liability issues, more law is in order. And no doubt about it, more state space law is sure to come.
(Hat tip: Hobbyspace.)
OST: 40th ratification anniversary
Over on Aviation Week's On Space blog, Frank Morring, Jr. has a good commemorative post in which he poses the question, "Is it time to redraft what has been called 'the Magna Carta of outer space' to reflect new realities, or to reaffirm the views of the original generation of spacefarers...." Always a good question. Of course, lawyers have been debating the treaty non-stop since before it was written. ;)
(Frank doesn't mention this but Loretta Hidalgo Whitesides noted on the Space Generation TALK mailing list that Frank was a page on the Senate floor the day of the treaty ratification. ;)
Other dates of note: the treaty was signed on January 27, 1967 (in Washington, London and Moscow). It was ratified by President Lyndon Johnson May 24, 1967.
And October 10, 2007 is the 40th anniversary of the Outer Space Treaty going into force.
Tuesday Flybys 4-24-07
But first -- after the horror at Virginia last week, the last thing NASA and the nation needed was more violence. Continued deep condolences to everyone living in the wake these tragedies. And hope for fast recovery for Kristina Heeger, the daughter of Space Adventures CEO Eric Anderson who was injured at Virginia Tech.
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IMAGE: Everybody's eyeballing the gorgeous glossies of the Carina Nebula, released by NASA to commemorate the birthday, but we love the classic shots, like this one, too. Credit - NASA, ESA, HEIC, and the Hubble Heritage Team (STSci/AURA). No birthday balloons or candles needed.
FAA Workshop on Experimental Permits
Experimental Permits Workshop
The Office of Commercial Space Transportation will conduct a workshop on FAA's experimental permit process on Wednesday, May 16, 2007, from 9 a.m. - 5 p.m. It will be held in the FAA Headquarters Building, 800 Independence Avenue SW, Washington, DC, Conference Room 9AB (9 a.m. - 12 noon) and Conference Room 8AB (1 p.m. - 5 p.m.).
The workshop will include comprehensive sessions on the following topics:
Please RSVP to Michelle Murray, (202) 267-3674, or Susan Lender, (202) 267-8029.
Space Money in Manhattan
As everyone knows, the Space Investment Summit took place in the Big Space Apple this week. No I didn't make it over there. Yes it was only a few short subway stops from my apartment. Of course Art Dula came all the way from Texas. I don't want to talk about it.
Sam Dinkin, who does get around, was back on Transterrestrial Musings posting a series of blog reports from the summit, which Clark collected on Hobbyspace here and here.
(I was also delighted to hear that while in town Sam treated Greg Olsen to a cab ride. Sam asked the space traveler a question I have always wanted to ask someone who's been orbital: "Which is rougher, a Soyuz flight or a New York City cab ride?" Greg answered, "Both." Right. Next time we're all getting on the subway.)
I want to separately note Sam's post regarding Art Dula's called for reform of the Outer Space Treaty to cap the liability of signatory countries for any space accidents of their nationals. Indeed, just one of many ideas for OST updating and reform.
Also courtesy of HobbySpace, a perspective of the conference written by Charles Lurio, who called the event, "the most exciting - and possibly most significant - marker of progress in `New Space' that I've attended in years."
That's it, I have got to get out more. Either that or give my metrocard to that guy who asked me for a dollar on Third Avenue this afternoon.
(Plus I has a terrible dream that Clark posted a message saying he would be cutting back his time on Hobbyspace. Yiikes. Is this week over yet?)
How safe is space tourism?
That's right -- Patti and Peter. (Journal registration not required for this article.) Dig in.
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IMAGE: I really wanted a picture of FAA's Patricia Smith and space mogul Peter Diamandis together, but alas, can't find one. The interviews took place via e-mail so the Journal didn't send a photographer. This pic illustrating safe space tourism is courtesy of Virgin Galactic.
Details of the Columbia Disaster Settlement
This week, the Orlando Sentinel has a report on details of that undisclosed settlement.
Notably, a Sentinel reporter's FOIA requests, submitted to NASA in 2005 and 2006, last month finally "yielded just seven pages of documents that leave many questions unanswered." (Indeed. A national disaster, seven dead astronauts, and just seven pages of the legal record made public with respect to the sums of money paid by the nation to the grieving families? What is that -- one page per hero? Hard to believe this paltry production satisfies the federal law. And family privacy issues aside, what was NASA thinking in not sharing even this limited information before the freedom of information filing?)
What the documents did reveal was that NASA paid $26.6 million to the surviving families.
Former FBI director and federal judge William Webster (now a consulting partner at Milbank, Tweed, Hadley & McCloy) served as "a mediator and adviser in negotiating the out-of-court settlements," the newspaper reported.
The FOIA documents included a NASA letter dated March 26, 2004 from then-general counsel Paul Pastorek who said NASA had "advised family members to retain lawyers and that early discussions had been 'positive and constructive.'"
The documents apparently did not set forth the names of counsel for the families.
Jon Clark, Laurel Clark's husband, who told the Sentinel he spent $200,000 on lawyers himself, said the settlements were on the "low side" of what the families sought. He did not specify how low. The documents did not reveal how the total settlement divided among the families.
Some quite interesting details, via the article:
- Parents, spouses and children of the fallen astronauts all received compensation.
- Astronauts with doctoral degrees received slightly more than those with master's degrees.
- Families with a larger number of children received less per child than smaller families.
- In 2004 Webster and his team met with the seven families and their attorneys, both collectively and individually.
- The families presented videos, computerized slide shows and economic projections for lost income.
- All agreed to receive the same award for the astronauts' pain and suffering.
- The families, of course, promised not to make any future legal claims against NASA or its contractors.
Compare this outcome to legal wrangling after prior fatal NASA missions, specifically, product liability lawsuits against government contractors. Widows of the deadly Apollo I fire reached settlements with the spacecraft’s manufacturer, North American Rockwell. And of course after the Challenger loss, families sued rocket manufacturer Morton Thiokol, settling for approximately $1 million each -- and yes, federal taxpayers ponied up for part of that.
For a more analysis of the Columbia acident legal issues, see this CRS report, Liability Issues Associated with the Space Shuttle Columbia Disaster, Feb. 12, 2003.
In the end, NASA appeared to have handled itself with grace vis-a-vis the grieving families. Jon Clark said the agency was "deferential." Lani McCool found NASA to be "extremely sensitive and so respectful."
I especially like this: Webster handled the matter pro bono and received a distinguished public-service medal from NASA. Bravo.
Friday Flybys - 4.13.07
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IMAGE: Pre-launch Charles Simonyi in front of the Soyuz simulator, thinking about space and a gourmet orbital meal courtesy of Martha Stewart. Maybe even in that order.
World Party Space
Have a high-flying Yuri's Night '07, everyone!
Suborbital RLV Permit Rules
This rulemaking, which become effective June 5, 2007, sets forth requirements for operators of suborbital RLV's seeking experimental permits. And yes, this includes manned and unmanned reusable rockets. The rule also covers operating requirements and restrictions on launch and reentry of suborbital RLVs operated under a permit. Fun fun fun.
Taken together, the two companion sets of regulations -- covering crew and space flight participants, and now, experimental permits -- implement requirements of the Commercial Space Launch Amendments Act of 2004.
As with the first big rulemaking, in promulgating these permitting regs, Patti Smith and her crew of pro-space, public safety-obsessed regulators listened closely to comments submitted in response to the NPRM by industry and other interested folks. (Interestingly, by FAA's count, only 12 comments were submitted; these generally "supported" the proposed rule. See my highlights here. In contrast, for the crew and space flight participants NPRM, FAA recieved comments from 42 entities. As always, everyone who did not comment loved every word of the NPRMs.)
Which rockets may qualify for an experimental permit under this rule? To be eligible, a reusable suborbital rocket may only be flown for the following purposes:
• Research and development to test new design concepts, new equipment, or new operating techniques,
• Showing compliance with requirements to obtain a license under Chapter 701, or
• Crew training before obtaining a license for the same design. 49 U.S.C. 70105a(d).
And for those just tuning in and don't know what a suborbital rocket is, CSLAA defines it (49 U.S.C. 70102).
(And for those just tuning in and don't know what a suborbital rocket is, CSLAA defines it (49 U.S.C. 70102(19).)
FAA has a quick, down and dirty overview of the new permit rules, which was already cited online and in the news, and I don't mind poaching from it myself:
- A single experimental permit will cover multiple launch vehicles of a particular design. A permit will allow an unlimited number of launches.
- FAA will identify the type of design changes that may be made to a launch vehicle without invalidating the permit.
- The permit is for one year and renewable following an FAA review.
- Test flights covered by an experimental permit can not be conducted for compensation or for hire.
- The new rules establish criteria for the physical area in which a launch vehicle with an experimental permit can operate. The area, among other things, must be large enough to contain planned trajectories. It cannot contain nor be adjacent to a densely populated area.
- As part of the application for a permit, a vehicle developer will need to provide a program description, a flight test plan, and operational safety documentation, including a hazard analysis and a plan for response to a mishap.
Sensible. Workable. Nothing dramatically different from the NPRM.
And here are some of my scratchy notes regarding selected additional items worth noting:
In agreeing with a comment by Blue Origin re "reentry," FAA now defines launch to end "after reaching apogee if the flight includes a reentry, or otherwise after vehicle landing or impact on Earth and after activities necessary to return the reusable suborbital rocket to a safe condition on the ground." FAA notes, "This definition thus accounts for the two types of suborbital rockets: those that reenter and those that do not."
The FAA could not accommodate Tripoli Rocketry Association's request to make recreation and sporting competition projects eligible for permits.
As to Spaceport Associates' recommendation that FAA re-examine the applicability of FAA space transportation regulations to U.S. citizens or U.S. entities outside the United States, no dice. That's governed by statute. 49 U.S.C. 70104(a)
FAA said the Personal Spaceflight Federation "is correct that reusable suborbital rocket operators and developers will not be required to obtain an experimental airworthiness certificate to obtain a permit or license. However, an operator cannot fly under a permit or license unless its vehicle is a reusable suborbital rocket or otherwise subject to Chapter 701....If an operator plans to fly its vehicle as a suborbital rocket, the operator must fly it in accordance with the requirements of an experimental permit or license." And a "permit is not a prerequisite for a license. Nonetheless, data obtained while operating under a permit may be useful in applying for a license."
The requirements make distinctions between manned and unmanned vehicles. Part 437 of 14 CFR applies whether a vehicle is manned or unmanned. If a person is on board a permitted vehicle, 14 CFR part 461 contains added requirements.
The duration of an experimental permit does not need to be longer than one year (as suggested by Spaceport Associates and Blue Origin) because a permittee may obtain a renewal. If the permittee has been operating in compliance with the regulations and terms and conditions of its permit, it should not be difficult to obtain a renewal. To avoid any disruption to the schedule, a permittee should apply for renewal at least 60 days before its permit expires, in accordance with 14 CFR 413.23.
An applicant for a permit may rely on a safety approval obtained under part 414.
As to inspection, FAA has decided against Blue Origin’s recommended that the FAA conduct this inspection before flight rather than before issuing a permit because a determination on the safety of the vehicle is difficult to make before the safety systems have been built and verified. Also, the FAA will inspect the vehicle to ensure compliance with application representations.
Slight change under program description, § 437.23(b)(1): "any" systems rather than "all" systems (structural, flight control, thermal, pneumatic, hydraulic, propulsion, electrical, environmental control, software and computing, systems, avionics, guidance) since FAA recognizes not all vehicles will have all systems.
FAA agrees that the description required for any system is a general overview or basic description of the system. However, when showing compliance with the containment requirements of § 437.31, an applicant will need to provide a more detailed description.
Also requires a description of "software and computing systems," rather than just software systems as proposed in the NPRM.
Clarification of §437.25(a) flight test plan - for each operating area, an applicant must also provide the maximum altitude it expects the reusable suborbital rocket to reach.
Whoops. XCOR found a typo in § 437.51 FAA should have said "or," not "and." ;)
FAA will further study the comments raised by ALPA on rest requirements.
In response to Masten's comments, FAA notes a permit is not required for operations between flights. Under § 437.53, "pre-flight" operation begins when a permittee prepares a reusable suborbital rocket for flight and "post-flight" operation ends when a permittee returns the reusable suborbital rocket to a safe condition after flight.
FAA clarifies the hazard analysis required by § 437.55. The applicant must analyze the risk of each hazard before identifying measures to mitigate or eliminate that risk. (See discussion, p. 177005)
Operating area containment - FAA has clarified § 437.57(b)(3) and (4); § 437.57(b)(3)
FAA agrees with XCOR that publication on the agency's web site of approved experimental permit operating areas may invite undesirable attention, however it is important to inform the public of potential hazardous operations so that they can be aware of potential hazards.
Noting the Federation and XCOR's input, for now FAA will define "unpopulated," "sparsely populated," and "densely populated" areas for purposes of determining an acceptable operating area on a case-by-case basis.
Most commenters agreed with not requiring a permittee to meet quantitative risk criteria. The FAA agrees with XCOR that performing valid quantitative risk analyses should be encouraged, even if these analyses are not required to obtain a permit.
"Key flight-safety event" means a permitted flight activity that has an increased likelihood of causing a launch accident compared with other portions of flight. In the NPRM, the FAA proposed a similar definition, but referred to "failure" instead of "launch accident," which is already defined by § 401.5.
Landing and Impact Locations, § 437.61 is clarified per XCOR and the Federation's concerns. The landing or impact location, not the whole launch site, has to be clear of members of the public.
§ 437.63 Agreements With Other Entities Involved in a Launch or Reentry - FAA clarifies and adopts a narrower version than in the NPRM.
Tracking a Reusable Suborbital Rocket - under § 437.67, a permittee must, during permitted flight, measure in real time the position and velocity of its reusable suborbital rocket. This is a change from the NPRM, which proposed that a permittee provide Air Traffic Control with the ability to know the real time position and velocity of the reusable suborbital rocket while operating in the National Airspace System.
Section 437.71 flight rules - one change: the agreement with the responsible Air Traffic Control authority required by § 437.63 should include any need for prior authorization.
FAA clarifyies the anomaly reporting requirements of § 437.73.
Allowable Design Changes; Modification of an Experimental Permit Section 437.85(a) includes the rocket not just the motor.
Pre-Flight Reporting § 437.89 - FAA does entertain requests for waivers to its timing requirements, but any flexibility in that regard will depend on the availability of USSTRATCOM resources.
As to the for-hire prohibition, Section 437.91, FAA is bound by the CSLAA and unable to make exception for inert payloads such as souvenirs and trinkets; sale of images from onboard still or video cameras would violate § 437.91; sale of a used rocket part would not violate § 437.91 if the rocket part was not carried on board for compensation or hire; selling used propellant tank insulation that has been imprinted with post card images is prohibited under § 437.91.
An operator seeking to generate revenue may do so under a license.
The FAA agrees with XCOR that rocket belts, as they currently exist, are not vehicles, thus they are not regulated under Chapter 701.
And that's all I have. But read it yourself.
Happy experimental RLV launching.
And here's to everyone keeping FAA very busy granting lots of cool permits under these reasonable, workable rules.
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IMAGE: courtesy Armadillo Aerospace
Doña Ana County News -- 4/6/2007 10:07am
FINAL VOTE TALLY FOR SPACEPORT ELECTION RELEASED
The Doña Ana County Bureau of Elections has completed its canvass of the April 3 Spaceport Tax Election.
The final unofficial results are as follows: Yes = 9,020 votes; No = 8,750 votes.
The Doña Ana County Board of Commissioners will meet Tuesday, April 10, to certify the results and send the documentation to Santa Fe.
As approved by the voters, the new 1/4 of 1 percent tax to support infrastructure development at Spaceport America north of Las Cruces will go into effect on Jan. 1, 2008.
(My friend who lost the bet, a lawyer who is actually a big fan of commercial space, had said that having spent many years as a child living in southern New Mexico he knew the people of the area and felt confident they would no way approve any such tax referendum. Hehehe.)
Now if you'll excuse me -- I'm off to collect my winnings. Congratulations to the county, state of New Mexico, Governor Bill Richardson, Virgin Galactic of course, and all the future builders, employees, customers, supporters and friends of Spaceport America. (Even "Bossy" the space cow.)
IMAGE: Sir Richard Branson; courtesy, Spaceport America.
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UPDATE: And no, FAA/AST did not completely ruin my dinner here by publishing in the Federal Register today the final rule we've been waiting for on experimental permits for reusable suborbital rockets. I did read scan the regs quickly, but will have to post about this later on. (Definitely not tonight. ;)
Virginia makes space law history
After all the legal buzz, effective July 1, 2007, the Spaceflight Liability and Immunity Act is the law in Virginia, signed, as anticipated, by Governor Kaine yesterday. As I've noted (here and here, etc.) supporters of the bill, including the sure-footed lawyers at the Personal Spaceflight Federation, see this measure as a solid step in furtherance of Virginia's keen interest in space business and suborbital tourism. Other states in our space-faring republic are sure to follow.
Jack Kennedy at Spaceports, lawyer and himself a former Virginia legislator, who worked on the landmark law, also notes the efforts of SFF, NSS, and Virginia's regional technology councils in getting the law onto the books.
Jack has more coverage here on space-related goings on at the VA General Assembly.
SLP applauds the newly minted Virginia space measure and hopes no trial court ever finds before it a case in which this law applies.
(And to space age citizens who, understandably, prefer less space law, rather than more: our condolences. However, going forward, you're probably just gonna have to get used to this sort of thing. ;)