The curious case of the transgressing tardigrades (part 2)
by Christopher D. Johnson, Daniel Porras, Christopher M. Hearsey, Sinead O’Sullivan, and Monica Vidaurri
|The laws are designed for the government to evaluate the proposed activities of potential licensees engaged in launch, reentry, remote sensing, and telecommunications against the risk to the US government and the public.|
For the roughly 60 years that humanity has been putting objects into space, such activities have been primarily undertaken by governments or for governments. As a matter of federal and international law, the US Government is the legally responsible party for any possible wrongful acts committed in space by governmental entities, employees, or contractors with a legal connection to the State. Let’s briefly explore the interplay between international and US national space law.
In April 1967, the United States Senate ratified the Outer Space Treaty. Thus, Congress enacted the Outer Space Treaty as part of federal law. While several of the Outer Space Treaty’s articles are self-executing, other articles are not, and the US Government has enacted statutes and regulations to enforce those non-self-executing articles, in particular articles VI and VIII.
Putting aside the obligation that the United States, as a State Party to the Outer Space Treaty, “shall carry on activities in the exploration and use of outer space, including the moon and other celestial bodies, in accordance with international law, including the Charter of the United Nations, in the interest of maintaining international peace and security and promoting international co-operation and understanding,” (emphasis added) there are two positive obligations in the treaty that form the foundation of US national space law. First, the obligation to authorize and continuously supervise the activities of non-governmental entities under Article VI of the Outer Space Treaty is certainly affirmed through several federal statutes and their associated regulations. We explore these laws in more detail below. And second, Article VIII of the Outer Space Treaty clearly states that “[a] State Party to the Treaty on whose registry an object launched into outer space is carried shall retain jurisdiction and control over such object… while in outer space or on a celestial body.” (Emphasis added.) Jurisdiction and control are critical elements of the US Government’s powers to exert authority over persons engaged in space activities. And during the time this essay was drafted, we have been reintroduced to the concept that even federal criminal law applies outside the territory of the United States, including in space.
Congress has authorized several federal agencies to regulate a wide range of commercial space activities. All commercial space entities, whether incorporated within or outside the US, are subject to US jurisdiction and control if a launch vehicle or payload is launched from United States territory or intended to operate within the regulatory jurisdiction of the United States.
The three federal entities that commercial space companies usually encounter, if they seek to engage in space activities, are the Federal Aviation Administration’s Office of Commercial Space Transportation (FAA/AST), the Federal Communications Commission’s International Bureau Satellite Division (FCC/IBSD), and the Department of Commerce’s National Oceanic and Atmospheric Administration’s Satellite and Information Services (NOAA/NESDIS). Congress has authorized each government entity with the authority to regulate specific aspects of commercial space activities. FAA/AST has authority to regulate commercial launches, reentries, and spaceports insofar as acts of licensed entities do not jeopardize the health and safety of the public, safety of property, national security, or foreign policy of the United States. FCC/IBSD has the authority to regulate the electromagnetic spectrum and implement such regulations that enable the safe and efficient use of telecommunications through licensing of stations on Earth and in space. NOAA/NESDIS has the authority to license the operations of non-governmental space-based remote sensing systems. Together, these regulators provide jurisdiction and control over commercial space activities by authorizing and continuously supervising licensees.
All three “space regulators” have established practices and rules for licensing. Their statutes and regulations seek to compel adherence to federal law and guard against breaches of international obligations and any act that could jeopardize the national security or foreign policy of the United States. The licensee bears the responsibility and liability for breaches of the terms and conditions of their license. Moreover, each government entity that regulates commercial space activities described above also prescribe that failure to provide material information as part of the licensing application could subject the licensee and its contractual parties to civil and/or criminal penalties. Together, these statutes do not enumerate whether one type of space activity is lawful or unlawful over another. Instead, the laws are designed for the government to evaluate the proposed activities of potential licensees engaged in launch, reentry, remote sensing, and telecommunications against the risk to the US government and the public. Below we explore the laws and regulations that pertain to commercial payloads intended to be launched into space.
Codified in Title 51 of the United States Code is Chapter 509, which sets out the scope of the legal powers of the US government to regulate commercial space launch activities. Congress has authorized the Secretary of Transportation “to oversee and coordinate the conduct of commercial launch and reentry operations, issue permits and commercial licenses... and protect the public health and safety, safety of property, and national security and foreign policy interests of the United States.” This broad authority has been delegated to FAA/AST as the sole regulator for commercial space launch activities, and lead agency in interagency consultations for payloads intended to be launched on licensed commercial launch vehicles.
|The legal test of the interagency consultation is “whether [the] launch of a proposed payload or payload class would present any issues affecting public health and safety, safety of property, U.S. national security or foreign policy interests, or international obligations of the United States.”|
Let’s consider the following hypothetical. You have decided to launch a payload into space and now you need to figure out how to get that payload into space. For simplicity, let’s assume your payload has neither remote sensing nor telecommunications nor navigation technologies attached. Let’s further assume that you find a host payload operator to attach to and the operator agrees to host your payload. Let’s say you work out systems integration challenges and are ready to move forward with the launch of your payload.
Since you plan to launch on a commercial launch vehicle from a commercially licensed spaceport in the US, your payload will need a review by FAA/AST whether or not you have already contracted with a launch services provider. This process saves time, resources, and helps establish a good faith dialogue to address any risks or concerns to the public or the US government regarding your payload.
The payload review process is straightforward. First, you would prepare a letter to the FAA/AST requesting a payload review. The scope of the letter would include any specific questions or concerns or general legal or policy issues you may want to raise relating to the launch of the payload, but must include a good faith description of, among other information, the payload’s owners, name, physical characteristics, and class, its intended operations and final orbit, and any hazardous materials onboard.
Second, FAA/AST reviews the information you provided to determine whether you have all the required licensing and whether your payload “would jeopardize public health and safety, safety of property, U.S. national security or foreign policy interests, or international obligations of the United States.” By default, FAA/AST approaches the payload review process assuming a positive determination except if evidence or lack of information raises concerns within the interagency or under the FAA’s regulations. Once a payload determination is approved by the FAA/AST, the payload determination is part of the record for the launch license when you seek a commercial launch services provider. Moreover, you are required to report changes in information regarding your payload to FAA/AST if you have already been given a positive determination or if the determination is pending.
One of the main tasks of FAA/AST is to evaluate risk to the US government and the public from any commercial space launch activity from a federally licensed spaceport. While launch vehicles are subject to a variety of different regulations, payloads generally are not subject to much additional scrutiny. It is assumed that payload owners and operators provide accurate and complete information in good faith. Furthermore, FAA/AST does not make a determination about the necessity of additional licensing because FCC and NOAA regulations do not fall within its authority. Instead, it will seek a determination from the regulators at FCC/IBSD and NOAA/NESDIS as to whether the payload owner or operator needs additional licensing. These issues are discussed within interagency settings and other agency findings are usually communicated to FAA/AST through internal processes, but FAA/AST encourages payload owners and operators to speak to the interagency regarding their payload reviews.
As part of the payload review process, an applicant is afforded an opportunity to orally brief or make a presentation to an FAA/AST hosted interagency meeting that, depending on the type of payload and additional licensing requirements, may or may not include representatives from the Central Intelligence Agency, National Aeronautics and Space Administration, Department of Homeland Security, National Reconnaissance Office, Department of Commerce, and other relevant federal agencies and departments. Here, you are afforded an opportunity to present a description of the intended payload operations and its component parts. You may also attest to whether you plan to follow industry or scientific standards relevant to the payload’s intended operations. You are also likely to field questions from officials that attend the interagency meeting and you will likely get follow up in the form of written, compiled interagency questions from FAA/AST.
The legal test of the interagency consultation is “whether [the] launch of a proposed payload or payload class would present any issues affecting public health and safety, safety of property, U.S. national security or foreign policy interests, or international obligations of the United States.” On issues of national security, FAA/AST consults the Department of Defense, while on issues of foreign policy it FAA/AST consults with the Department of State. FAA/AST also consults with other federal agencies authorized to address issues that affect “public health and safety, safety of property, U.S. national security or foreign policy interests, or international obligations of the United States.” Departmental and agency consultations are weighted in light of the risk to launch the payload and deference is given to agency objections or concerns, if such issues arise.
|In general, space law aside, the payload review process and the launch license application require a person to provide material facts in good faith in order to assist the government’s evaluation of its risk in order to provide you a positive determination to launch the payload with a future licensed launch services provider.|
If there is a dispute within the interagency, FAA/AST does not have the unilateral authority to make determinations outside its authority, but must seek to defer to the relevant federal departments and agencies with the appropriate authority to resolve the issue. If there is a dispute, especially in the case of national security and foreign policy, the executive branch has internal processes by which to seek a resolution from the National Security Council to the President or among the principals of the relevant departments and agencies. FAA/AST is generally not permitted to unilaterally authorize a launch of a payload if there exist material facts that implicate jeopardy to national security and foreign policy positions of the US government. To tug at this thread is to expose additional risks of delay and cost to the payload owner or operator because it interferes with the comity between the federal departments and agencies as well as interferes with the intent of Congress to provide specific departments and agencies with jurisdiction over these issues. But if discussions are in good faith and timely, a payload owner or operator should have sufficient time to resolve any outstanding issues identified in the payload review process.
FAA/AST does not have the authority to direct a payload owner, operator, integrator, or other hosted payload operator(s) to take prescriptive acts to follow non-binding policies and rules. The continuing duty is on the launch licensee to ensure that the application is accurate and complete. This includes ensuring that the record for the launch license has positive payload determinations with good faith attestations of material fact. Black’s Law Dictionary defines a “material fact” as “a fact that is significant or essential to the issue or matter at hand.” The issue at hand here is that there is an affirmative duty on the part of the payload owner or operator to disclose material facts as part of the launch license application record. The application does not say that payload owners and operators must adhere to a specific standard, but once the claim is made to the FAA/AST, it is part of the record and any material change of fact about the intended use of the payload must be disclosed for further evaluation.
Let’s now assume that you have yet to identify a launch services provider but you have received your positive determination from the information you presented previously to the FAA/AST as part of your payload review request. Let’s further assume that you have agreed with your host payload operator that you will adhere to some industry or scientific standard as it pertains to the payload preparation for integration into the launch vehicle fairing.
Now let’s consider two hypotheticals. In the first case, let’s assume that one of your engineers comes to you and says “we need to tape down a component part inside the payload for thermal management.” Here, the engineer comes to you because the intent of the tape is to provide thermal management. Do you need to report this to the FAA/AST? No, because thermal management is an expected and routine activity that does not change the intended payload operations.
In the second case, let’s assume that one of your scientists comes to you and says, “I have an idea. Let’s add some biological material into the tape and place it somewhere on the spacecraft.” In this case, the intent is no longer an engineering issue, but a change to the intended use of the payload. The introduction of biologics to a spacecraft may present a risk to the public or the federal government. From the point of view of the FAA/AST, this could be a de minimis inclusion. But failure to disclose this material fact robs other federal agencies from evaluating risk to the public and the federal government.
In general, space law aside, the payload review process and the launch license application require a person to provide material facts in good faith in order to assist the government’s evaluation of its risk in order to provide you a positive determination to launch the payload with a future licensed launch services provider. When you present these material facts to the government, you attest that you have provided an accurate and complete record at the time of filing. Failure to provide an accurate or complete record could jeopardize the payload determination as well as the launch license application. Moreover, because you are attesting to the government, and since the launch license application requires the written acknowledgement that the factual record is accurate and complete, you are making a statement under oath.
Failure to provide an accurate and complete record raises legal liability issues under federal law. The standard under federal law for failure to provide the required information under oath to the US government is whether you knowingly and willfully:
The bottom line is that defects in the launch license application and record puts the licensee on the hook for failure to provide material facts by its contractors and subcontractors to the US government. The gravity of the situation (no pun intended) arises from the fact that the licensee itself connects all parties to the cross-waivers of liability and insurance requirements through the launch license application. To get these statutory benefits, the launch services provider must ensure that the application and any relevant materials thereof are accurate and complete. Failure to do so shifts the risk evaluation from the US government to the licensee and its contractors and subcontractors. This is an unworkable solution because it limits US governmental control over a space object and continuing supervision requirements—obligations under federal and international law. At the same time, likely exposes the licensee and its contractors and subcontractors to additional unnecessary legal risk.
The process outlined above reflects the official, by-the-rules approach to commercial space activities. Concerning the “Tardigate” scandal, how do the facts accord with the law? Based on the facts revealed by Mr. Spivak to journalists and to the authors via social media, the following questions are presented:
Note that this list does not include contamination or breach of planetary protection rules. This is because we do not know whether the Arch Mission Foundation’s actions actually broke these rules or not. Maybe the launching of tardigrades to the Moon is perfectly fine under the COSPAR rules, but that is for the authorities to decide. If Mr. Spivak did not disclose the tardigrades (if there were any), he (and any other members of the Arch Mission Foundation that knew about the action) would have taken the analysis and decision out of the hands of the regulators and made that determination on their own. This is the aspect that is most troubling for all of commercial space. Taking the risk determination out of the hands of the US government by concealing a material fact would create all types of legal and policy concerns.
At the national level, the alleged actions of the Arch Mission Foundation appear to have undercut the trust needed for light regulations. For nearly a decade, the US government has been working closely with industry to simplify commercial space regulations in order to spur innovation and competition. Last year, Space Policy Directive 2 called for the streamlining of regulations on commercial use of space. It included more effective licensing procedures for launches, remote sensing, and the use of radio frequencies. As an example, Secretary of Commerce Wilbur Ross recently announced that long-awaited streamlined rules for remote sensing will be ready by October.
|A flagrant disregard by a small number of actors for the simple rules that do exist, though, would undercut that trust. As commercial activities continue in space, should regulators be preparing for more attempts to circumvent the rules?|
However, as is well known by many space enthusiasts (and anyone that has ever read a comic book), with great power comes great responsibility. Having “light-touch” regulations means applicants have a heavy responsibility to act in good faith with the regulator. The commercial space sector has worked very hard over many years to build trust with the US government. For example, OneWeb, DigitalGlobe, and Iridium (to name but a few) have actively sought compliance and engagement with regulators to make sure that they are acting as good stewards in space. The fruits of that trust are evident for all to see, with close cooperation on many fronts and an easing of regulations.
A flagrant disregard by a small number of actors for the simple rules that do exist, though, would undercut that trust. This time, it appears to be undisclosed tardigrades. Previously it was four nanosatellites from Swarm Technologies. As commercial activities continue in space, should regulators be preparing for more attempts to circumvent the rules? For something more nefarious? Companies like Astrobotic, ispace, and SpaceX are waiting in the wings to launch missions to the Moon and Mars. How closely will their national governments have to monitor their payloads and flight hardware for undisclosed items?
Whether or not Mr. Spivak put tardigrades on a lunar lander (and his story seems to be continually changing), this incident demonstrates that regulators are still searching for the right balance in their rules. While it is important to give industry ample room to grow and flourish, it is also essential to have predictable rules that apply to all actors. The US government will now have to consider how it responds.
There are a number of possible options for a response. On one end of the spectrum is “no response.” The US government could easily decide that this is a non-issue and simply choose to say nothing. However, this would send a message to other commercial actors that the philosophy of “better to beg forgiveness than ask permission” is a valid one, even when it might put the US in breach of its international obligations. Though it may seem counterintuitive, choosing not to respond is actually indicative of a larger, more strategic response to the private industry; that the US is choosing high-growth of commercial activities over the long-developed working order that has become the status quo within the industry. It is indeed a high-risk, high-reward strategy.
|Given the facts, the current predicament with tardigrades—much like with Swarm Technologies—seems to be more about the actions of a few individuals rather than systemic shortcomings of existing regulations.|
On the other end of the spectrum, the US could opt to impose a whole new set of planetary protection rules to anyone applying for a mission to the Moon or any other celestial body. Companies might be required to pay user fees to NASA, FAA, or the Department of Commerce for decontamination procedures and to review payloads for compliance thereof. This could cost future missions millions of dollars more, a price that would have to be borne by startups looking to be the first space miners. The authors of this article would argue that this is too heavy a response that could end up stifling a fledgling industry. Startups looking to conduct interplanetary missions face enough challenges as it is. We do not believe that the entire industry should be penalized for the rash actions of one or a few parties, but the current payload review process should not undermine US government obligations or risk assessments to the public.
The right balance for what the US does is somewhere in between these two extremes. At the very least, since common sense does not seem to be universal, some clarifications should be made about what information needs to be disclosed to the authorities. Should they seek additional measures, there are two types of factors that the US should consider, many of which we have delineated throughout this article. On the one hand, there is the desire to go out into space and try new things, to maintain a renewed spirit of adventure, and to promote a vibrant commercial space sector. On the other hand, there is the State’s ability to regulate the activities of its nationals and to keep its obligations towards the global community.
Given the facts, the current predicament with tardigrades—much like with Swarm Technologies—seems to be more about the actions of a few individuals rather than systemic shortcomings of existing regulations. As such, a focused, limited approach might be the most appropriate: namely, one that dissuades individuals from wrongful acts, not the entirety of commercial space activities. Whatever that deterrence might be, we leave to the authorities. But we hope at a minimum that the commercial space industry ought to consider how failure to adhere to the rule of law introduces additional risk that will require appropriate risk management leading to increased costs and delays.
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