Who s on your Space Vehicle? a Legal Primer for the Changing State of Space Exploration in the United States. Prepared by: Michael S.

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1 Who s on your Space Vehicle? a Legal Primer for the Changing State of Space Exploration in the United States. Abstract for Panel Discussion Prepared by: Michael S. Dodge 1 The continuing evolution of modern space activities have demonstrated a need for a continued human presence onboard both public and private spacecraft. Historically, spacecraft were the exclusive province of governments, and the extraordinary individuals chosen to operate onboard were the pride of the nation. With the Commercial Space Launch Act, the United States categorized both crew and space-flight participants, and with Public Law , there is an altogether new class of people boarding our spacecraft government astronauts. This panel attempts to take a look at the evolution of the kinds of individuals operating or participating in spaceflight activities, and the panelists will share their impressions of what legal differences, if any, exist as between the various classifications. Panelists will share their impressions of how the potential co-existence of multiple classifications of people onboard a single spacecraft might impact any cases or controversies that might arise surrounding mission activities. Introduction In November of 2015, President Obama signed legislation into law that has the potential to significantly alter several aspects of the utilization of outer space, both for commercial and governmental purposes. When H.R (designated P.L ) was enacted, it addressed U.S. space law by creating four separate titles, the first of which is most important for the purposes of understanding the role of individuals onboard a spacecraft. 2 As seen below, Title I, known as the SPACE Act, introduced an entirely new kind of legal person for space travel under revised provisions of the Commercial Space Launch Act. This new designation is of particular importance because the Federal Government is entering the era where it will be employing the services of private launch providers to take its astronauts into space. The future model of transport could potentially see situations where those astronauts traditionally ferried to space by government spacecraft (such as the Space Transportation System 3 ), but now carried, at great expense, by Russian spacecraft 4 could find themselves sharing space with private crew, or even thrill-seeking space tourists. To regain U.S. independence in rocketing astronauts into space, and to stimulate what Congress and several presidents have supported as a potentially viable new transportation market, NASA has been working for years on various aspects of their Commercial Crew program. The history of this 1 Michael Dodge, J.D., LL.M. Assistant Professor/Graduate Program Director, Department of Space Studies, John D. Odegard School of Aerospace Sciences, University of North Dakota. 2 U.S. Commercial Space Launch Competitiveness Act, Pub. L. No , 129 Stat. 704 (2015). 3 Colloquially known as the Space Shuttle. 4 See, e.g., CBS/AP, NASA: Seats on Russian Rockets Will Cost U.S. &490 Million, Aug. 6, 2015, 1 Who s on your Space Vehicle? a Legal Primer for the Changing State of Space Exploration

2 program is beyond the scope of this CLE; however, recently NASA entered into the Commercial Crew Transportation Capability phase (CCtCap) of its relationship with private launch providers. This stage of their work includes work on commercially built and operated integrated crew transportation systems 5, and two U.S. companies have been divvied out several billion U.S. dollars in funding (based on an FAR, fixed-based contract system). 6 In theory, this program will soon allow NASA astronauts to gain access to the International Space Station. The question arises, then, what role will a government astronaut play onboard a privately built and operated spacecraft; moreover, how should they be classified? Will they have the same legal status as the crew operating the craft? Below, this document takes a look at the various types of individuals that could be found on a privately operated U.S. spacecraft, and what that could mean for individuals classified under the U.S. statutory scheme. Classifications of Persons in Space United States legislation has, over time, created three kinds of persons who could be onboard a spacecraft. These categories crew, spaceflight participant, and now government astronaut will, in theory, provide for the current needs of private industry and government alike. Because the U.S. government has a need to continue its missions in low Earth orbit, and because it currently has to rely on foreign States, at great expense, to get there, it behooves the government to continue on the path it started years ago with its Commercial Crew programs. While private launch providers have yet to ferry government personnel to space, they have been successful at taking supplies or experimental equipment to the International Space Station on several occasions. 7 These actions have demonstrated the ability of a private provider to get to space successfully, which is a step in the direction of proving they can safely and reliably transport humans to space as well. Once these activities commence in earnest, the classification of the people onboard the craft will become more pressing. Recognizing that there are myriad benefits 8 to having private launch providers operating in space, and further wishing to ensure that private (non-governmental) individuals were not conflated with government personnel and missions, the government created definitions in the Commercial Space Launch Act that give status to the people operating under the ambit of private providers. The first such definition is that of crew. These individuals are any employee of a licensee or transferee, or of a contractor or subcontractor of a licensee or 5 See Commercial Crew Program the Essentials, 6 See Stephanie Schierholz & Stephanie Martin, NASA Chooses American Companies to Transport U.S. Astronauts to International Space Station, Sept. 16, 2014, 7 See, e.g., Marcia Dunn, SpaceX Delivers World s 1 st Inflatable Room for Astronauts, WASHINGTON TIMES, April 10, 2016, 8 See generally, 51 U.S.C ( Congress finds that private applications of space technology have achieved a significant level of commercial and economic activity. ). 2 Who s on your Space Vehicle? a Legal Primer for the Changing State of Space Exploration

3 transferee, who performs activities in the course of that employment directly relating to the launch, reentry, or other operation of or in a launch vehicle or reentry vehicle that carries human beings. 9 Here, the private spaceflight provider is the licensee, with the FAA s Office of Commercial Space Transportation being the licensing authority. 10 This definition allows the government to authorize private, commercial, human-operated actions in space, while preserving any federal identity needed for individuals sent to space by the government on official NASA missions. The second category of persons found onboard a spacecraft is that of the Space Flight Participant (SFP). Congress contemplated that eventually there would be individuals going to space, likely on private spacecraft, who did not operate the spacecraft or perform onboard duties. Assiduously avoiding Common Law or aviation law complications that might attend a definition such as passengers, legislators crafted the term space flight participant to account for such individuals. The CSLA notes that a SFP is simply an individual, who is not crew, carried within a launch vehicle or reentry vehicle. 11 This definition could cover people who pay for a joyride into space, or who simply wish to experience weightlessness a space tourist, if you will. It could theoretically even cover private researchers or scientists (those who won t be operating anything relating to the launch or launch vehicle itself) who need to utilize a microgravity environment for their work. Intriguingly, before the passage of P.L , this definition could have encompassed any other kind of person that had no duties with respect to launch vehicle operation conceivably one might have applied this to NASA astronauts who are using private launch providers as transportation to the ISS. That scenario never happened; however, given that NASA will soon need private launch providers to get into space, it would benefit NASA, and the government generally, to have a new definition specific to those types of government personnel. The final category of individual is a new one, from the perspective of legislation. It is well known that NASA intends to put its astronauts into space by private means in the near future Id. at 50902(2). 10 Id. at 50905(a)(1) a person may apply to the Secretary of Transportation for a license or transfer of a license under this chapter in the form and way the Secretary prescribes. This is achieved through the Office of Commercial Space Transportation (AST), whose webpage mentions that the FAA issues a commercial space transportation license or experimental permit when we determine that your launch or reentry proposal, your proposal to operate a launch or reentry site, or your proposal to test equipment, design or operating techniques will not jeopardize public health and safety, property, U.S. national security or foreign policy interests, or international obligations of the United States. Available at This same page provides information about launch vehicle approval, launch sites, environmental compliance, and FAA safety approvals U.S.C (20). 12 See, e.g., NASA s Commercial Crew Transportation Capability program See Stephanie Schierholz & Stephanie Martin, NASA Chooses American Companies to Transport U.S. Astronauts to International Space Station, Sept. 16, 2014, transport-usastronauts-to-international. 3 Who s on your Space Vehicle? a Legal Primer for the Changing State of Space Exploration

4 Indeed, the SPACE Act of 2015 noted that NASA has a need to fly government astronauts within commercial launch vehicles.. 13 To meet the needs of NASA, Congress crafted a new category: Government Astronaut. The Act notes that these are individuals who are employed by the government, either by NASA or the armed forces, designated by NASA, and are carried in space vehicles. 14 The definition also allows for foreign personnel to be included as international partner astronauts. 15 This definition is appealing for several reasons. Firstly, it maintains the prevalence of government personnel in the exploration and use of outer space. It also reinforces the mission-oriented status of NASA, giving that agency the ultimate say in who launches into space to represent both NASA and the U.S. government more generally. Critically, it accounts for the possibility that these individuals may perform duties whilst onboard the craft, including activities directly relating to the launch, reentry, or other operation of the launch vehicle or reentry vehicle 16, yet distinguishing them from the crew of the vehicle (who, before this change to the law, were the only party that had statutory authorization to perform activities relating to the launch on a commercial launch vehicle). Congress has effectively crafted a solid definition that suits the needs of its agents in space, as assigned by NASA, and it has paved the way for these individuals to be onboard the same spacecraft as non-governmental crew and space flight participants. Cross-Waivers, Liability, and Insurance P.L made another significant change to the legal status of persons onboard a spacecraft. In particular, Space Flight Participants gained a major protection they previously lacked. When Congress first contemplated supporting the commercialization of the space launch industry, it became acutely aware that the joint issues of liability and insurance were potential stumbling blocks. Since it stands to reason that accidents will happen, and that even worse fates could befall private space launch activities that might involve people aboard, it was clear that certain protections needed to be in place before an industry could properly develop. In particular, the potential negative impact that a catastrophic incident would have on the business model of a new space company could be devastating, unless they had insulation from the fallout. To that end, the Commercial Space Launch Act required the licensee to make a reciprocal waiver of claims with various parties, including its contractors, subcontractors, and even the Federal Government. 17 The cross waivers protected the parties by making sure they would be responsible, as individual parties, for any property damage, injuries, or deaths they sustained. 18 These protections still exist, but now, with the SPACE Act, the law has changed to reflect 13 H.R (b). 14 Id. at 112(c). 15 Id. International partner astronaut means an individual designated under Article 11 of the International Space Station Intergovernmental Agreement U.S.C (4)(B) U.S.C (b)(1-2) (original; has been modified by P.L ). 18 Id. 4 Who s on your Space Vehicle? a Legal Primer for the Changing State of Space Exploration

5 Congressional interest in protecting the bold daredevils, visionaries and adventurers 19 who intend to accompany many of these craft into space i.e., Space Flight Participants. Notably, Sec has been altered to include SFPs in the list of applicable parties involved in launch services or reentry services 20 that will complete a cross-waiver of liability with the licensee for the launch. Before this modification, under certain conditions, SFPs could potentially be liable for accidents that might occur in the course of a launch a scenario easily contemplated in the academic world, but which has yet to come to pass in reality. Likely in a desire to further insulate the space launch industry from barriers to its success, Congress added SFPs into the cross-waiver scheme, but only until As with cross waivers, insurance requirements for space launch activities are a responsibility of the licensee, who needs to gather up appropriate levels of insurance in order to assure the government and the public that their interests would be protected. It is well known that licensees must procure sufficient insurance to protect themselves and the Federal Government from potential suits stemming from third party fatalities, injuries, and property damage. 22 What is new in P.L is the addition of space flight participants as one of the groups intended to be protected to the extent of their potential liability for involvement in launch services. 23 Again, Congress has acted to grant new rights to one of the three statutory classes of persons onboard a spacecraft. Additionally, the quantities required for insurance may be substantially changed in the near future. The first section of Title I of the new SPACE Act has called for a study to determine whether the government is not being exposed to greater costs than intended and that launch companies are not required to purchase more insurance coverage than necessary. 24 In essence, this is set to determine the efficiency of extant insurance requirements. Roles of NASA and the FAA There are two primary points that have remained constant throughout the shifting definitional sands for people onboard spacecraft: firstly, that the Federal Aviation Administration remains the licensing authority for privately launched spacecraft, even when government astronauts are onboard; and secondly, that NASA maintains control over whether craft are ready to carry their astronauts or board the International Space Station. 25 Recognizing that they would need to work together to achieve the aims annunciated in the National Space Policy of the United States 26, the two agencies executed a memorandum of understanding that helps smooth out any potential 19 Tracey Knutson, What is Informed Consent for Space-Flight Participants in the Soon-To- Launch-Space Tourism Industry?, 33 J. SPACE L. 109 (2007) (quoting Hughes & Rostenberg, who further were quoting Reps. Boehlert & Rohrbacher) USC 50914(b)(B)(iii). 21 Id. at 50914(C). 22 Id. at 50914(a)(1)(A-B). 23 Id. at (a)(4)(e). 24 H.R , 102(b)(1-2)(A). 25 Dan Leone, NASA, FAA Sign Agreement on Human Spaceflight Regulation, SPACE NEWS, June 18, 2012, 26 See generally, National Space Policy of the United States of America, available at 5 Who s on your Space Vehicle? a Legal Primer for the Changing State of Space Exploration

6 confusion over turf or responsibility. 27 Because of the need for private industry to be involved in launching NASA s astronauts in the future, and because such an endeavor has never before been attempted, the agencies recognized that NASA and FAA have complimentary and interdependent interests in ensuring that commercially-developed human-rated systems and vehicles for low-earth orbit are effective and safe. 28 As a result, the agencies have agreed to work together to share data and information, eliminate redundant or conflicting standards, provide a stable framework for the nascent private space launch industry, and of course to maintain and enable NASA to continue its low Earth orbit missions including certifying and enabling the transportation of astronauts to the International Space Station. 29 Now that the individuals identified in the MOU as operating segment astronauts 30 have been given a firmer legal definition in the form of government astronauts, this MOU should assist in clarifying and guiding the respective roles of the two agencies moving forward. International Concerns While the majority of this CLE has focused on domestic concerns, the identity of the individuals onboard a spacecraft may also have international implications. Indeed, the United States is a party to the United Nations Outer Space Treaty 31, and, consequently, must abide by any obligations found within that agreement, even when engaged in domestic missions in space. Insofar as people aboard spacecraft are concerned, the Outer Space Treaty addresses the need to protect intrepid individuals engaged in space exploration. Indeed, the OST makes specific note of the importance of humans exploring space, calling them astronauts. These astronauts are considered to be the envoys of all mankind, and are to be provided every consideration when it is discovered their lives may be in danger due to accidents, distress, or emergency landings. 32 The precise meaning of what an astronaut is, from an international law perspective (as opposed to the new government astronaut in the United States) is unknown, and debates have arisen over whether these individuals possess any significant legal status under international law. 33 It seems likely that an astronaut, from the perspective of international law, is perceived as 27 Memorandum of Understanding between the Federal Aviation Administration (FAA) and the National Aeronautics and Space Administration (NASA) for Achievement of Mutual Goals in Human Space Transportation, June 4, 2012, available at 28 Id. at Id. at Id. 31 Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies, Jan. 27, 1967, 18 U.S.T. 2410, 610 U.N.T.S. 205 [hereinafter Outer Space Treaty or OST]. 32 Id. at art. V. 33 See, e.g., Stephen Gorove, The Concept of Common Heritage of Mankind : a Political, Moral, or Legal Innovation?, 9 SAN DIEGO L. REV. 390, 396 ( ) ( Unfortunately this phrase has never been officially clarified, and while the term is reminiscent of a similar expression used in connection with diplomatic representation, it is not very likely that the word was intended to carry such a connotation. ). 6 Who s on your Space Vehicle? a Legal Primer for the Changing State of Space Exploration

7 representing humanity s hopes for peaceful utilization of outer space, whereas they do not possess the same kind of privileges and immunities one might expect of more traditional envoys ; i.e., ambassadors of one State to another. Interestingly, the rest of the U.N. treaty regime fails to mention astronauts in their articles. There is the Rescue and Return Agreement (ARRA), whose official title includes the word astronaut. 34 Yet, that same treaty introduces the second of the international persons that can be found aboard a spacecraft personnel of a spacecraft. The articles of ARRA spend a goodly amount of effort in identifying the obligations of States with respect to personnel of a spacecraft; yet, like the Outer Space Treaty before it, personnel of a spacecraft is not defined. Some scholars have argued that the term is or should be interpreted broadly, and conceivably could go so far as to encompass anyone onboard a spacecraft including space tourists. 35 Reading the articles of the Rescue Agreement, it seems most likely that personnel of a spacecraft means something more akin to the astronaut of the Outer Space Treaty. One may ask whether these two classifications can be mapped, one to one, to any of the United States categorizations. While the treaties deal in international law, they nevertheless, as noted above, affect what the United States can do in outer space. The international astronaut seems to fit, in a general sense, the role of government astronaut as defined in the P.L The Rescue Agreement s use of personnel of a spacecraft, on the other hand, seems at first glance to be a somewhat broader concept one that perhaps would suit both government astronauts and what are called crew in the law. However, these points are more speculative than definitive, and until a situation arises in which international law would be triggered for a spacecraft carrying more than the newly classified government astronauts perhaps one carrying crew and space flight participants as well it may remain a turgid academic subject. Conclusions Identifying the various categories of persons onboard spacecraft is but one facet of the issue facing future commercial space endeavors. How to resolve any potential conflicts that might arise should be a concern of both the government and private industry, since both parties have so much vested in the future of commercial space flight. Legislators in Congress, regulators at the FAA, and mission-oriented agencies like NASA are all cognizant of these issues, and if the recent laws and upcoming slate of studies and reports are an indication of the future, any problems likely to arise from the presence of multiple legal persons onboard a spacecraft will be addressed at some point. While multiple calls for studies in P.L indicate that further changes to U.S. space activities seem inevitable, Title I of the SPACE Act has produced three notable changes for space commercial space launch activities. Firstly, an entirely new legal category of person has 34 Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched into Outer Space, April 22, 1968, 19 U.S.T. 7570, 672 U.N.T.S. 119 [hereinafter Rescue Agreement or ARRA]. 35 See, e.g., Mark Sundahl, The Duty to Rescue Space Tourists and Return Private Spacecraft, 35 J. SPACE L. 163 (2009). 7 Who s on your Space Vehicle? a Legal Primer for the Changing State of Space Exploration

8 been added to the Code in the form of the government astronaut. Additionally, new insulation from liability has been accorded to space flight participants, who previously did not benefit from such protection. Finally, the insurance regime required of space flight providers may be changing, possibly in ways beneficial to the industry. This may eventually be seen in an eventual reduction of the required quantity of insurance, or a more efficient process in determining how much insurance is needed. It remains unclear how the U.S. categorizations of crew, SFPs, and government astronauts will be received under international law scenarios that require the triggering of Outer Space Treaty or Rescue and Return Agreement provisions; however, what is certain is that the United States Congress is intent on continuing its longstanding promotion of private space activities in this country, and conjoining those efforts with the government s own needs in space exploration and research. In the near future, when the partnership of the Federal Government and its selectees from the CCtCap program reaches its maturity, we may start to see some of these academic and practical unknowns answered through their activities in space. 8 Who s on your Space Vehicle? a Legal Primer for the Changing State of Space Exploration