I’m attending the fifth annual conference on space law hosted by the law school at the University of Nebraska, which has a program in space law, partially sponsored by USSTRATCOM (fifty miles up the road at Offut AFB in Omaha). The conference looks to be an interesting program, with a lot of international participation. The focus this year is on commercial space regulation. I’ll note that it’s in a very nice facility, especially for bloggers — a semi-circular auditorium with power outlets on the tables every four feet or so.

Frans von der Dunk is introducing the first speaker, John Sloan of the FAA. Noting the number of international visitors, and commenting that it may be the most mileage racked up for visitors to Lincoln. Discussing increasing plans in Sweden, Netherlands, Dutch Antilles, even China for commercial spaceflight. Tomorrow will deal more with national security issues.

John Sloan speaking now. Responsible for international outreach activities for AST. Relating history of how office was formed after Deke Slayton had to go to seventeen different offices in the eighties to get permission to fly Conestoga. Notes that responsible for encouraging, facilitating and promoting commercial space launch. Dual role not an issue yet, and industry still needs support. Over 200 launches over past couple decades — commercial launch defined by who the launch provider is, not the payload (e.g. milsats are commercial launches). Issued many launches for expendables, one reentry license (Dragon) and getting ready for reusables (SpaceShipTwo, Lynx). Showing map of all existing or pending spaceports in the country, both federal and non-federal. “Commercial,” per the latest 2010 policy updates, primarily defined by level of risk assumed by launch provider. Describing history of evolution of authority, starting with original CSLA for launch regulation in 1984, expansion of reentry in 1998, and the addition of regulating human spaceflight in 2004. FAA does not certify, and doesn’t do mission assurance — only concerned with safety for third parties. “Spaceflight participant” term invented to differentiate people who fly in space vehicles from air passengers, with different levels of expected risk.

Defining “interoperability”: ability to operate a vehicle in multiple regulatory regimes, including weapons systems. Launch industry prefers “interoperable” to “harmonization” (specifically due to complaint by Jeff Greason). Potential triggering events for interoperability regs: operational vehicle in two different regulatory regimes, orbital entry in country other than launching country, orbital entry to unplanned location, point-to-point, accident. Suborbital vehicles currently planned to land in same nation as launched. Could start as simple MOU between countries, starting bi-lateral, then evolve to multi-lateral. For countries where US vehicles want to operate, model regulations for spaceports could be developed (“Cliff’s Notes of regs). Would contain core principles to ensure compatibility, similar to ICAO principles for aviation. Current FAA position is that they want to see industry drive changes, can learn what works and what doesn’t, don’t want early government decisions to hinder growth. Would have to issue new rules, which would be a minimum two-year process (and that would be fast paced). Interoperability is long-term goal.

Showing global map of spaceports, updated with Curacao, Singapore, Abu Dhabi (first VG flight outside of US, Kiruna, Sweden and Wenghang, China. Locations driven by where development money can be found.

Question: how much “de facto” interoperability is there?

A: UK additions to Outer Space Act close to what US doing, but also looking to French for balanced approach. Discussing issue of EU wanting to regulate winged vehicles like airplanes.

I raise the question of whether or not it would be good to move AST out of the FAA and have it report to the SECDOT, as it did until the Clinton administration, because of the problem with the FAA not promoting industry. Sloan demurs (understandably), but Brett Alexander says that there are good and bad features to such a move, but that from a government standpoint it didn’t seem appropriate to have regulation occurring out of the secretary’s office, and that it was too small to make its own agency.

Question from Professor van der Dunk: How do you handle transition from one-off licenses to multiple flights per day? Also, what is your definition of a “launch”? Is there a difference between horizontal and vertical? XCOR is single-stage-to-space.

Answer: two different kinds of licenses, launch and operators. Same site, similar mission, much less onerous paperwork than with different location, different azimuth, etc. Will be there in person for initial flights, but at some point for multiple flights per day, may not show up in person. There is licensing flexibility for different situations. To answer second question, referring to legal definition of suborbital launch, which all providers, vertical and horizontal, meet.

What is difference between “spaceport” and “launch site.” Same thing, but “spaceport” sounds cooler. Also Blue Origin doesn’t need a launch site license, because they are the only operator, and it’s included in their launch license.

Rolf Olofsson (a Swede) from Brussels speaking on comparisons between European and US approaches. Speaking as practitioner, not academic, not an aviation lawyer, and admits to some confusion. Won’t talk about US because John Sloan already did, and we’re probably familiar, but will contrast with Europe.

Who is competent? In US, FAA-AST. In Europe, European Aviation Safety Agency, which declares its competence on the basis of its experience with aircraft. Policy expected autumn 2012 at the latest. National authorities may not consider themselves competent. Notes that space tourism doesn’t fall under the Swedish Space Act, or at least that’s current legal opinion.

In US, license not based on design of vehicle, clear framework with time frame (180 days after substantial completion), based on informed consent and requires cross-waivers and insurance, with government indemnification.

There is potential for EU certification process, which gives him pause. Policy in October 2012 at earliest (notice of proposed amendment, equivalent to FAA Notification of Proposed Rule Making, occurs September of this 2012). Even after this, basis for certification will still need to be developed. Still unclear whether guidance for permission to fly will come from EU or member states.

Most spaceports and most space-tourism ventures based in USA.

Noting that for the purpose of the OST, “launching state” carries liability. Have excluded sounding rockets from current law for historical reasons (prior to passage of OST). Grandfathered on basis of low risk, relative to orbital vehicles (Sweden only place in Europe that rockets can be launched over land). Will need to come up with different safety system in Kiruna for vehicles with higher total impulse.

Currently legal limbo in Europe. Nothing to stop Swedish government from doing it right now, whether by adopting US regs or other, but future is uncertain.

ITAR will be an issue: Problem with bringing European passengers on US vehicles, and US vehicles operated outside US or exported will require export licenses.

With respect to the Liability Convention, notes that third-party liability requirements vary from European state to state (case by case based on operater’s turnover in Belgium, limited to insurance in France and Germany, limited to reasonably available insurance in the Netherlands, unlimited in Norway and Sweden).

In US, addressed through insurance requirement and cross-waivers (which don’t cover willful misconduct and whose validity may be in question). Courts tend to focus on assent to the terms of the liability release. Several states have addressed liability (e.g., FL, VA, NM). Types of insurance required: third-party liability, property, crew/passengers. Well-established market for space insurance for satellites and their launches, but not for human commercial spaceflight. Not clear what future holds, given disparate national policies.

Conclusions: US has clear regulatory framework, EU is unclear whether regulations will be at EU or national level and competence, framework is being developed, and nations will have to figure out what they want to do. Won’t happen for a decade, and US has a big head start. Europe is lagging behind and may never be able to catch up. Unclear legal situation puts European operators at distinct disadvantage. Should there be an International Convention on manned commercial space flights?

Brett Alexander speaking now.

Been both inside and outside government, but last six years have been in industry. Stepping down as president next month, and will be replaced by Craig Steidle, with whom he worked at NASA. Going to discuss what industry is doing, will leave legalese to lawyers. First chart: If private human spaceflight happens, everything changes. Notes that in the aviation industry activity led regulation with long period of experimentation, but space has been government dominated for so long that it would be premature to come up with stringent regulations for commercial activities.

Commercial Spaceflight Federation mission: promote development of commercial human spaceflight, pursue ever-higher levels of safety, share best practices and expertise throughout the industry. Non-profit in DC with CEO-level board of directors. Notes that they tend to talk about tourism, but science side is quite big (Alan Stern has a subcommittee consisting of university researches interested in suborbital flight). All members have a core business associated with human spaceflight. Notes that while the moon is no longer an explicit goal of the policy new policy is actually more aligned with the VSE than Constellation, given its emphasis on commercial participation.

At inflection point, after half a century of human spaceflight, no more than fifteen flights in any one year. Private efforts in combination with government funding will greatly increase use of space for research, recreation and exploration. Not just orbital, but long-neglected suborbital. Exponential growth in number of flights into space and people flying in/through space.

Suborbital markets are research, education and tourism. Orbital are research and “sovereign” markets of other countries that haven’t previously been involved in space. Just going to LEO itself is destination, but ISS and Bigelow and other facilities will be as well.

For orbital, Atlas V has had 25 for 25 successes, Falcon two for two.

Suborbital flights, vehicles tend to have wings and wheels. Noting that CCDev 2 awards will be announced today at 4:30 PM Eastern. Powered return to launch site new for operational vehicles (previously only done by DC-X). Armadillo, Masten and Blue Origin key players, will eventually take people.

What’s going on in DC: NASA now has CR lower than 2010 by $300M, can expect lower number for FY 2012. More emphasis and understanding of advantages of commercial in constrained government environment, but still controversial. Continued debate in congress with Shuttle retirement. Continued support from White House for commercial spaceflight. Expected ramp-up of suborbital flight testing. First piloted flights since 2004 SpaceShipOne may occur this year or early next. Original eight-year moratorium from 2004 was based on assumption of lots of flights for learning, so extending another eight years from beginning of commercial operations appropriate.

In CSF opinion, existing legal framework is sufficient. International law makes nation state liable, regulation of each country seeks to ensure responsible behavior while reducing potential liability. Space unlike any other transportation mod: territorial, similar to the seas with right of passage and non-interference, but not yet common-carriage in any sense. Government safety record comparable with climbing Everest, but much more dangerous than heli-skiing and sky diving. US has it right, with step-by-step approach to protect uninvolved public, while allowing risk-taking by participants. Aviation-like regulation of safety will strangle industry in the crib. Differing regulatory regimes around the world will stifle growth of the industry overall and give advantages to the US. Spaceflight cannot be guaranteed to the level of aviation, at least at this time.

[Afternoon session blogged here]