The Beresheet lunar lander being prepared for launch. Unbeknownst to SpaceIL, the “Lunar Library” payload on the lander provided by the Arch Mission Foundation included tardigrades, setting off a space law controversy when their presence was ultimately disclosed. (credit: IAI)

The curious case of the transgressing tardigrades (part 2)

by Christopher D. Johnson, Daniel Porras, Christopher M. Hearsey, Sinead O’Sullivan, and Monica Vidaurri
Tuesday, September 3, 2019

The Curious Case of the Transgressing Tardigrades is still developing, but this essay (the second in a series) attempts to collect various perspectives on the issues involved. In part one, after a recitation of the facts (as we know them, based on what is publicly available), we discussed the international legal context and applicable space law, some business perspectives, and basic tenets of astrobiology and planetary protection. In this part, we delve deeper into domestic US regulation via the FAA’s payload review process, and how it might have operated in the Beresheet mission.

US national oversight of commercial space activities

To shed light on the ramifications and possible outcomes from this curious case of the transgressing tardigrades, we now look to US national space law. Since the proliferation of obtuse counter-arguments about international law and its applicability to SpaceIL’s Beresheet lunar lander mission have failed to adequately address the severity of the situation, let us review the central questions under which US national space law sheds light on the interplay between national and international space law, and how a violation of federal law would not produce workable outcomes for commercial space actors.

As a matter of federal law, the central questions in the discourse below are:

• How does the US government authorize and continuously supervise the launch of a payload?
• How does the US government maintain jurisdiction and control over payloads?
• How does the US government evaluate its risk from commercial space activities under US national space law?
• What legal duties are the launch licensee and its contractors and subcontractors under?
• What is considered a material fact regarding a commercial launch license application?

While this analysis does not identify the existence of every possible duty and obligation that persons subject to the jurisdiction and control of the US government are under, we outline below the major points of law that regulate commercial payloads[1] launched on commercial launch vehicles[2] from federally licensed commercial spaceports.

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.[3] Let’s briefly explore the interplay between international and US national space law.

In April 1967, the United States Senate ratified[4] the Outer Space Treaty.[5] Thus, Congress enacted the Outer Space Treaty as part of federal law.[6] 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.[7]

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,”[8] (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.[9] 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.”[10] (Emphasis added.) Jurisdiction and control are critical elements of the US Government’s powers to exert authority over persons engaged in space activities.[11] 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.[12]

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.[13]

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.[14] 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.[15] NOAA/NESDIS has the authority to license the operations of non-governmental space-based remote sensing systems.[16] 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.[17] 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.

FAA regulation of commercial payloads

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.”[18] 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.[19]

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[20] whether or not you have already contracted with a launch services provider.[21] 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.[22] 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.[23]

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.”[24] 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.[25] 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.[26] 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.[27]

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.

Interagency consultations

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.[28] 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.”[29] On issues of national security, FAA/AST consults the Department of Defense,[30] while on issues of foreign policy it FAA/AST consults with the Department of State.[31] 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.”[32] 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.

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.

Material omissions and unnecessary risks

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.[33] This includes ensuring that the record for the launch license has positive payload determinations with good faith attestations of material fact.[34] Black’s Law Dictionary defines a “material fact” as “a fact that is significant or essential to the issue or matter at hand.”[35] 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.[36] Failure to provide an accurate or complete record could jeopardize the payload determination as well as the launch license application.[37] 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:

1. falsified, concealed, or covered up any material fact;
2. made materially false, fictitious, or fraudulent statements or representations, or;
3. made or used false writing or document knowing the information contained a material, false, fictitious, or fraudulent statement or entry.[38]

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.[39] 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.

Applying the law to “Tardigate”

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:

1. Was there a failure to disclose a material fact, i.e., the tardigrades, to the relevant national authorities? If so, this would be a breach of the FAA’s regulations, a potential federal violation.
2. As a consequence of question 1, does this cause other launch partners (SpaceIL, SpaceX, Spaceflight Industries) to not comply with the FAA regulations requiring an accurate and complete launch license application?
3. As a consequence of questions 1 and 2, does this cause either or both the US and Israel to fail to meet its Outer Space Treaty Article VI and VIII obligations of authorization, supervision, and control of a space object, along with the Article IX due regard and harmful contamination obligations? This is especially pertinent in light of the fact that SpaceIL made material assertions (and amended them several times) to the FAA regarding the payload.[40]

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.

National implications for light touch regulations

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.

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?

Conclusion

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.

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.

The Curious Case of the Transgressing Tardigrades will conclude (we hope!) in Part Three next week, where we will discuss broader geopolitical perspectives and consequences of private spaceflight sans oversight, as well as some sociological and cultural perspectives and implications from this incident.

Endnotes

1. 51 USC § 50902(13) - “‘payload’ means an object that a person undertakes to place in outer space by means of a launch vehicle or reentry vehicle, including components of the vehicle specifically designed or adapted for that object.” See also, 14 C.F.R. § 417.19(a) (“To assist the U.S. Government in implementing Article IV of the 1975 Convention on Registration of Objects Launched into Outer Space, each launch operator must provide to the FAA the information required by paragraph (b) of this section for all objects placed in space by a licensed launch, including a launch vehicle and any components, except: (1) Any object owned and registered by the U.S. Government; and (2) Any object owned by a foreign entity.”). See Convention on Registration of Objects Launched into Outer Space art. IV, opened for signature Nov. 12, 1974, 1023 U.N.T.S. 15 [Registration Convention].
2. 51 USC § 50902(11) - ““launch vehicle” means - (A) a vehicle built to operate in, or place a payload or human beings in, outer space; and (B) a suborbital rocket.”
3. See infra note 6, article VI.
4. U.S. Const. art. II, § 2, cl. 2. See Executive D – Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies, 90th Cong. (1967) (The U.S. Senate voted 88 to 0 in favor of ratifying the Outer Space Treaty).
5. Treaty on the Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies, opened for signature Jan. 27, 1967, 18 U.S.T. 2410, T.I.A.S. 6347, 610 U.N.T.S. 205 [Outer Space Treaty].
6. U.S. Const. art. VI, § 1, cl. 2 (“This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.” (emphasis added)). See The Paquete Habana, 175 U.S. 677, 700 (1900) (“International law is part of our law, and must be ascertained and administered by the courts of justice of appropriate jurisdiction as often as questions of right depending upon it are duly presented for their determination. For this purpose, where there is no treaty and no controlling executive or legislative act or judicial decision, resort must be had to the customs and usages of civilized nations, and, as evidence of these, to the works of jurists and commentators who by years of labor, research, and experience have made themselves peculiarly well acquainted with the subjects of which they treat. Such works are resorted to by judicial tribunals, not for the speculations of their authors concerning what the law ought to be, but for trustworthy evidence of what the law really is.”), and Edye v. Robertson (Head Money Cases), 112 U.S. 580, 597-600 (1884) (“A treaty, then, is a law of the land as an act of Congress is, whenever its provisions prescribe a rule by which the rights of the private citizen or subject may be determined. And when such rights are of a nature to be enforced in a court of justice [sic] that court resorts to the treaty for a rule of decision for the case before it as it would a statute.”). Under the “Last-in-Time” rule for treaties, the Outer Space Treaty operates as federal law consistent with relevant latter in time statutes passed by Congress. See Cherokee Tobacco, 78 U.S. (11 Wall.) 616, 621 (1871) (holding that “a treaty may supersede a prior act of Congress and an act of Congress may supersede a prior treaty”).
7. See, e.g., 51 U.S.C. §§ 50901-905; 51 U.S.C. §§ 60121-125; and 47 U.S.C. §§ 301 et seq. & 702. See also Executive D – Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies, 90th Cong. 35 (1967).
8. Outer Space Treaty article III.
9. See supra note 8.
10. Outer Space Treaty article VIII.
11. See 18 USC § 7(6) & (7). For example, see 15 CFR § 960.1 - “these regulations apply to any person subject to the jurisdiction or control of the United States who operates or proposes to operate a private remote sensing space system, either directly or through an affiliate or subsidiary. For the purposes of these regulations, a person is: (1) An individual who is a United States citizen, or a foreign person subject to the jurisdiction and control of the United States; (2) A corporation, partnership, association, or other entity organized or existing under the laws of any state, territory, or possession of the United States; (3) A subsidiary (foreign or domestic) of a U.S. parent company; (4) An affiliate (foreign or domestic) of a U.S. company; or (5) Any other private remote sensing space system operator having substantial connections with the United States or deriving substantial benefits from the United States that support its international remote sensing operations sufficient to assert U.S. jurisdiction.”
12. See 18 USC §§ 6 & 7, and see Loren Grush, The first alleged crime committed in space raises questions about jurisdiction in orbit, the Verge, Aug. 27, 2019.
13. See generally, 18 USC § 7(6) & (7). See specifically, supra note 8 & 12.
14. 51 USC § 50901(3).
15. See 47 U.S.C. §§ 301 et seq. & 702. It is important to note that the benefits derived from commercial communication satellites arise because of a multilateral treaty which “require[s] that no transmitting station may be established or operated by a private person or by any enterprise without a license by or on behalf of the government of the country to which the station in question is subject.” See International Telecommunication Union (ITU) Radio Regulations, No. 18.1 (2015) here.
16. See 51 U.S.C. §§ 60121-125.
17. Regarding commercial space launch activities specifically, see 51 USC § 50917.
18. 51 USC § 50901(3).
19. 14 CFR § 415.57(a) provides that “A payload review may be conducted as part of a license application review or may be requested by a payload owner or operator in advance of or apart from a license application.” See 51 U.S.C. § 50904(b) (statutory basis for this payload review). See also 51 U.S.C. § 50918(a)-(c) (statutory requirement that there be an interagency consultation).
20. See 14 CFR § 415.57.
21. See 51 USC § 50902(9) - ““launch services” means - (A) activities involved in the preparation of a launch vehicle, payload, crew (including crew training), government astronaut, or space flight participant for launch; and (B) the conduct of a launch.”
22. 14 CFR § 415.51.
23. 14 CFR § 415.59 “(a) A person requesting review of a particular payload or payload class shall identify the following: (1) Payload name; (2) Payload class; (3) Physical dimensions and weight of the payload; (4) Payload owner and operator, if different from the person requesting payload review; (5) Orbital parameters for parking, transfer and final orbits; (6) Hazardous materials … and radioactive materials, and the amounts of each; (7) Intended payload operations during the life of the payload; and (8) Delivery point in flight at which the payload will no longer be under the licensee's control.”
24. 14 CFR § 415.51.
25. 14 CFR § 415.61.
26. 14 CFR § 415.51.
27. 14 CFR § 415.63.
28. 14 CFR § 415.57.
29. 14 CFR § 415.57.
30. 14 CFR § 415.57(b)(1).
31. 14 CFR § 415.57(b)(2).
32. 14 CFR § 415.57(a)(3).
33. See 14 CFR § 413.7(c) - “signature and certification of accuracy. An application must be legibly signed, dated, and certified as true, complete, and accurate.”
34. See 14 CFR §§ 413.7(c) & 415.63.
35. Black’s Law Dictionary 8th ed. pg 629.
36. 14 CFR § 413.7(c).
37. 14 CFR § 415.63.
38. 18 U.S. Code § 1001. “Statements or entries generally (a) Except as otherwise provided in this section, whoever, in any matter within the jurisdiction of the executive, legislative, or judicial branch of the Government of the United States, knowingly and willfully - (1) falsifies, conceals, or covers up by any trick, scheme, or device a material fact; (2) makes any materially false, fictitious, or fraudulent statement or representation; or (3) makes or uses any false writing or document knowing the same to contain any materially false, fictitious, or fraudulent statement or entry; shall be fined under this title, imprisoned not more than 5 years or, if the offense involves international or domestic terrorism (as defined in section 2331), imprisoned not more than 8 years, or both. If the matter relates to an offense under chapter 109A, 109B, 110, or 117, or section 1591, then the term of imprisonment imposed under this section shall be not more than 8 years.”
39. 51 USC § 50914.
40. Ground Based Space Matters, No Tardigrades Here, SpaceIL Payload Review and Determination Letter 07_30_2018(1)(2)_compressed.pdf.

Christopher D. Johnson is the Space Law Advisor at the Secure World Foundation, and Professor of Law (Adjunct) at Georgetown University Law Center, where he co-teaches international space law. Daniel Porras LLM is the Space Security Fellow at the United Nations Institute for Disarmament Research (UNIDIR) in Geneva, Switzerland. Christopher M. Hearsey, JD, MS is CEO of OSA Consulting, LLC in Maryland. Sinead O’Sullivan is a Space Economist and a Sainsbury Management Fellow at the Harvard Business School. Monica Vidaurri is an astrobiologist and policy and ethics specialist, currently consulting for NASA Goddard. The views expressed in this article are those of the authors only; they do not necessarily represent the views of their current institutions or those of their members.

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