by Timothy M. Ravich
This article endeavors to increase a general awareness about space law and to highlight the key laws governing private sector spaceflight in Florida. Great efforts are made by elected officials and other stakeholders to promote the state as a unique geo-political gateway to the Caribbean and Latin and South America. At least an equal amount of energy should be dedicated to the refinement of a legal regime that stimulates private aerospace activity in Florida given the state’s global lead in aerospace operations historically, the economic and societal value of space exploration generally, and the scheduled retirement of the space shuttle fleet imminently.
Outer space travel exploration today is reminiscent of the period following the Wright Brothers’ historic first flight of a powered, heavier-than-air airplane in 1903. Only 11 years later, the first scheduled airline passenger flight in the United States departed — an 18-mile, 23-minute, one-passenger journey between Tampa and St. Petersburg for $5 one-way. Today, Miami, Ft. Lauderdale, Jacksonville, Orlando, and Tampa, among other locations around the state, are muscular staging areas for state-of-the-art cargo and commercial airplanes to quickly, routinely, and safely transit millions of passengers and tons of goods over domestic, transcontinental, and international routes for mere dollars. Florida again is uniquely positioned to stage the next mode of human travel and to lead an emerging space travel and tourism industry just as it facilitated modern commercial aviation. Despite these opportunities, however, space law is largely a foreign topic for many Floridians.
Practitioners unfamiliar with space law may dismiss the subject matter as a species of science fiction, a fantastical, imaginative, and precedentless topic that exists outside the sphere of regular business and legal discourse. Among nonlawyers, too, there is scant first-hand knowledge about outer space as fewer than 500 humans have traveled there. Despite that fact, space law is a substantive area of the law that consists of a discrete set of international treaties,1 resolutions,2 statutes,3 regulations,4 and court opinions that address aerospace activities, among other contexts, in terms of contract,5 tort,6 property,7 patent,8 and even tax law.9
Space law is and should be particularly important for Floridians. Not only has Florida served as the originating point for major space operations dating back to the 1950s, but the recent enactment of new laws in Florida and elsewhere, together with the emergence of a space tourism industry, construction and development of local “space ports,”10 and evolution of a burgeoning cadre of private aerospace entrepreneurs, means that space law has real gravity and presents serious economic opportunities and challenges for Floridians and their lawmakers.
Existing National Policy: Lost in Space
America’s current space policy is adrift.11 The space shuttle fleet that has flown since 1981 is scheduled to retire in 2010, creating an operational “gap” that will leave the country that won the “space race” without an independent means of human spaceflight until completion of the next generation of rockets, at earliest, in approximately 2015. Thousands of residents of Florida’s “Space Coast” who contribute to the aerospace industry are losing jobs as a direct result.12 Meanwhile, putting aside the suspicious outer space programs of North Korea and Iran, other nations, including Brazil, China, and India, together with heavily subsidized private competitors abroad, are fast-developing as viable, intensively competitive, cost-saving alternatives to aerospace assets in Florida, particularly in terms of human capital and expertise in the “STEM” areas of science, technology, engineering, and math.
True, in 2004, President Bush proposed a “Vision for Space Exploration” involving a return to the Moon and to Mars and worlds beyond. The federal government proposed the “Constellation” program and production of the Ares and Orion rockets and crew launch vehicles toward those destinations. Not only have those programs been put on hold in the current economic climate, but “a big lesson of the race to the Moon was that it was a dead end”13 in any event. Moreover, a “Review of U.S. Human Space Flight Plans Committee” convened by President Barak Obama in late 2009 concluded that, given current budgetary constraints, the United States space program is on an “unsustainable trajectory” and will not be able to engage in human exploration beyond low earth orbit for the foreseeable future.14
The horizon for human spaceflight should be brighter, and national space policy and Florida’s aerospace sector should have a more robust and less cosmetic mission than revisiting the Moon. The commercialization of space is promising in this respect. Just as the privatization of airlines vitalized and democratized travel and catalyzed modern globalism, so, too, might private enterprise and market impulses resuscitate a space policy that is anchored down by Cold War philosophies.
Space Exploration or Exploitation? The Role of Private Enterprise
In October 1957, at the threshold of the Cold War with the United States, the Soviet Union shocked the West by launching the first artificial satellite, Sputnik. In doing so, U.S.S.R. Premier Nikita Khrushchev fueled his inflammatory rhetoric announced in 1956 (“We will bury you”) and triggered a “space race” with the United States. Sputnik “wasn’t about the peaceful uses of outer space. It was a matter of ballistic-missile throw weights and the strange nuclear-weapons game of deterrence. In 1957, if you could launch a satellite into orbit, you at least raised the question of whether you could use a missile to deliver an atomic bomb.”15 Unmistakably, space exploration began as an exclusively military and foreign policy competition between two sovereign superpowers, pitting Western capitalism against Soviet Marxism.16
Soon after the United States countered Sputnik by launching its own rocket, Explorer I, in January 1958, the United Nations General Assembly created a permanent Committee on the Peaceful Uses of Outer Space (COPUOS).17 As a matter of law, too, the United States developed a federal statutory framework to administer space operations, namely the National Aeronautics and Space Act of 1958, 42 U.S.C. §§2451-2477 (1958). As a precursor to the space treaties and conventions codified by the United Nations from the late 1950s to the early 1970s,18 Congress expressed a national policy “that activities in space should be devoted to peaceful purposes for the benefit of all mankind.”19
Significantly, Congress also promoted the exploitation — not merely the exploration — of outer space, stating that “the general welfare of the United States requires that the National Aeronautics and Space Administration … seek and encourage, to the maximum extent possible, the fullest commercial use of space.”20 To that end, federal law today identifies bioengineering research and development as an objective of national space operations, funds a cash prize program to stimulate innovation in basic and applied research and technology, and establishes the space shuttle system for government and commercial space missions.21
Retirement of the Space Shuttle Program
At the dawn of the “space age,” in 1961, President John F. Kennedy called upon Congress and the country to send an American to the Moon and back before the end of the decade.22 To implement this national goal, officials of the National Aeronautics and Space Administration (NASA) focused on Florida as a lunar launch site and selected Cape Canaveral, an Air Force missile test center at the time. The story of the manned lunar missions, of course, remains inspirational more than 40 years later, but it is ancient history in the modern era of computer automation, GPS, high-definition imagery, the Internet, and “smart” technology.
The launch of the space shuttle program in April 1981 seemingly advanced national space policy beyond the lunar missions of the 1960s and 1970s. As proposed, the space shuttle represented an engineering marvel, a reusable space plane that would make space travel routine — literally a shuttle operating regularly to and from space. For the past three decades, Florida’s “space coast” has been a vital global platform for the deployment of the space shuttle fleet and other reusable and expendable launch vehicles.
Today, despite its many accomplishments and international regard in engineering circles, the complex shuttle program represents a policy failure.23 Two orbiters and their crew were lost in catastrophic disasters that horrified the national psyche and scarred a generation of Americans, much like the assassination of John F. Kennedy and the terrorism of September 11, 2001. The fleet will have flown 131 successful missions over 30 years, well short of the planned 580 flights over 12 years.24 Yet, despite nearly constant technical setbacks and irregular launch timetables, the federal government manufactured justification for the shuttle fleet by making it the dominant delivery system of civilian, scientific, commercial, and military satellites. In doing so, federal lawmakers effectively excluded private sector launch providers from the payload business.
After the space shuttle Challenger exploded on its ascent in 1986, however, government and industry officials reassessed the role of astronauts in placing commercial satellites into orbit. Congress specifically reformulated the nation’s space policy by encouraging private aerospace initiative by removing commercial communications satellite launches — the most profitable launch market — from space shuttle missions altogether. By enacting the Commercial Space Launch Act of 1984 (amended in 2004), Pub. L. 98-575, 98 Stat. 3055 (1984), codified at 49 U.S.C. §§2601 et seq.,25 Congress announced “[t]he goal [of] safely opening space to the American people and their private commercial, scientific, and cultural enterprises [which] should guide [f]ederal space investments, policies, and regulations.”26
In fact, now, through the U.S. Department of Transportation’s Office of Commercial Space Transportation, regulators oversee private sector launches, reentries, and related space services, including the investigation and enforcement of safety procedures.27 This “new space” era presents dynamic opportunities for private aerospace interests in Florida, presuming a favorable legal environment is maintained and accentuated.
In 2001, Dennis Tito became the first public space traveler or “space tourist,” purchasing a ticket for space travel aboard the Russian Soyuz spacecraft bound for the International Space Station. Earlier, in 1998, Virginia-based Space Adventures, Ltd., introduced brokerage services for space flights for private citizens, envisioning a $10 billion industry. Today, the company advertises suborbital spaceflight for $102,000 (inclusive of $4,000 cancellation insurance) and a private expedition to the Moon for $100 million.28 Meanwhile, amid the introduction of private launch companies like SpaceX, Sir Richard Branson’s Virgin Galactic has signed up hundreds of people for $200,000 suborbital flights,29 and the European Aeronautic and Defense Company has studied the feasibility of a space hotel. Industry forecasters predict that space tourism, like early airline travel, initially will be reserved for wealthier individuals, but that nearly 13,000 passengers may participate in orbital and suborbital space tourism by 2021, creating approximately $700 million in revenue.30
The privatization of space operations appears to be evolving in step with the private demand for space travel. For example, in 2004, SpaceShipOne, the first privately funded and operated reusable space launch vehicle launched successfully, and its manufacturer, Burt Rutan’s Scaled Composites, won the $10 million Ansari X Prize. In many ways, SpaceShipOne epitomized the inevitable role of nongovernment, entrepreneurial actors in outer space. Congress specifically prompted authorities to “encourage, facilitate, and promote commercial space launches and reentries by the private sector, including those of space flight participants.”31 Now, the law recognizes and a private industry has evolved to serve a fresh classification of space traveler, the public “space flight participant.”32
The “Florida Informed Consent for Spaceflight Act”
Florida law is at the forefront of space tourism. Effective October 1, 2008, the Florida Informed Consent for Spaceflight Act, F.S. §331.501 (2010), has regulated spaceflight operators.33 To avoid liability, private space operators (i.e., “spaceflight entities”) must provide a minimum statutory warning statement to outer space passengers:
WARNING: Under Florida law, there is no liability for an injury to or death of a participant in a spaceflight activity provided by a spaceflight entity if such injury or death results from the inherent risks of the spaceflight activity. Injuries caused by the inherent risks of spaceflight activities may include, among others, injury to land, equipment, persons, and animals, as well as the potential for you to act in a negligent manner that may contribute to your injury or death. You are assuming the risk of participating in this spaceflight activity.34
By signing a consent form acknowledging this warning, space tourists in Florida voluntarily release spaceflight carriers from liability for injury or death arising from the “inherent risks of spaceflight activities.”35 Of course, a spaceflight entity cannot escape liability if it commits an act or omission that constitutes gross negligence or willful or wanton disregard for the safety of the space tourist that proximately causes injury, damage, or death.36
The convergence of public, private, and commercial space initiatives, supported by a corresponding (albeit nascent) set of space tourism laws, evidences an inflexion point in human space activity and potentially greater accessibility to outer space for the global community. Indeed, to date, the Federal Aviation Administration has licensed five commercial “spaceports,” including Cape Canaveral. Florida has an outstanding opportunity to lead a new era in aerospace commerce and the expectation of a commercial space tourism industry that is comparable to that of commercial aviation is not unreasonable.
The creation of “Space Florida” is another important aspect of new space in Florida. The space, aeronautics, and aviation industries account for nearly 150,000 high-value jobs and more than $7 billion in wages that typically exceed the state average by 40 percent.37 Florida Governor Jeb Bush recognized as much when he created the Commission on the Future of Space and Aeronautics in Florida in 2005 to “assess and make recommendations on how to strengthen Florida’s role as a leader in space and aeronautics and to maximize the economic development and job creations opportunities throughout the state.”38 One year later, in May 2006, the state legislature formally recognized Florida’s unique national role as a platform for global, private aerospace activities by enacting the Space Florida Act, F.S. §331.302(1) (2010), which declares “the aerospace industry of this state [to be] integral to the state’s long-term success in diversifying its economy and building a knowledge-based economy that is able to support the creation of high-value-added businesses and jobs.”39
The heart of the Space Florida Act is “Space Florida,” an independent special district created to be the face of state aerospace activities and a single point of contact for federal and state agencies, the military, universities, and the private sector.40 Through its president, board of directors, and committees, Space Florida is charged with attracting, retaining, and growing a healthy space and aeronautics industry in Florida. Toward these objectives, Space Florida enjoys significant authorities and economic development powers as a matter of statutory law.41 Space Florida has achieved some milestones to date, including preliminary steps to refurbish and commercialize the Kennedy Space Center to house jets that will train would-be space tourists.42 However, significant work remains to be done if Florida is to compete meaningfully with space tourism infrastructures that are developing throughout the United States, including in Alabama, Alaska, California, Colorado, New Mexico, and Texas.
In charting strategic and marketing plans for Floridians in the post-shuttle era, Space Florida must overcome the perception of Florida as a limited player in the value chain of space operations. Indeed, as a logistical matter, Florida is seen as a space launch and processing site with limited ability to recruit commercial space industry activities, such as satellite and vehicle manufacturing.43 Geographically, commercial customers find operating on a federal range and complying with Air Force regulatory and safety requirements burdensome.44 In addition, to the extent that investment follows talent, Florida is disadvantaged by the fact that its students have ranked in the bottom half of national rankings in math and science.45 Although these matters are by their nature business and political concerns, Florida lawmakers have a clear and substantial role to play in encouraging space commerce in Florida.
Space Transition and Revitalization Act
During the most recent legislative session, state lawmakers enacted important economic incentives for private space activity in Florida. For example, pursuant to the Space Transition and Revitalization Act, F.S. §288.1088,46 the legislature acknowledged “that the conclusion of the space shuttle program and the gap in civil human space flight will result in significant job losses that will negatively impact families, companies, the state and regional economies, and the capability level of [the] state’s aerospace work.” Effective July 1, 2010, limited resources from the Office of Tourism, Trade and Economic Development’s Quick Action Closing Fund have been available for “projects to retain or create high-technology jobs that are directly associated with developing a more diverse aerospace economy in this state.”47
Additionally, the 2010 legislative session saw the creation of a new statutory provision within the Space Florida Act to fortify existing space and aerospace infrastructure. Specifically, F.S. §331.370 (2010) authorizes the use of previously allocated funding for improvements to launch complexes and space transportation facilities “in order to attract new space vehicle testing and launch business to the state.”48 Such funding also is available “to assist in the development of joint-use facilities and technology that support aviation and aerospace operations, including high-altitude and suborbital flights and range technology development.”49
Lawmakers in 2010 also created the Manufacturing and Spaceport Investment Incentive Program to stimulate commercial development and capital improvements in spaceport activities in the state.50 From July 1, 2010, to June 30, 2012, newly codified F.S. §288.1083 (2010) allocates $43 million in potential refunds on the sales and use tax of “eligible equipment”51 purchased by an “eligible entity” — “an entity that manufacturers, processes, compounds, or produces items for sale of tangible personal property or engages in spaceport activities.”52 Eligible entities must apply for the refund and can receive refunds in consecutive years; however, no entity may be allocated more than $50,000 in refunds for a single year.53
These recently enacted laws, together with existing pro-business space laws, are important, timely, and necessary if Florida is to lead, and not merely compete for, private aerospace investments for the foreseeable future.54 These initiatives, while laudable given budgetary constraints in the midst of the “great recession,” are susceptible to the characterization of gesture tokens relative to the energetic stance of other states — particularly New Mexico and Virginia — as to private aerospace enterprise.55
In 1997, Congress enacted the 50 States Commemorative Coin Program Act, Pub. L. 105-124, 111 Stat. 2534 (1997), to “promote the diffusion of knowledge among the youth of the United States about the individual [s]tates, their history and geography, and the rich diversity of the national heritage.” As to the coin that commemorates their state, Floridians voted among competing design concepts for quarter pieces that feature the inscription “Gateway to Discovery” and a depiction of a 16th-century Spanish galleon and a space shuttle. Indeed, Florida represented the New World for Spanish explorers searching for the Fountain of Youth centuries ago, and today symbolizes the starting point for modern expeditions to new worlds. The fact that this history is reflected on our currency should not be lost.
The aerospace industry is a vital part of Florida’s history and future. Whether Florida is the right atmosphere for new business clients in the emerging spaceport and space tourism industry depends upon resolution of several outstanding legal issues. Among other things, operators at the Cape Canaveral Spaceport will need aerospace counsel to license commercial horizontal and vertical launch and recovery sites with the Federal Aviation Administration. Apart from a framework that requires informed consent, lawmakers have yet to develop a liability scheme that encourages public safety without also exposing private actors to staggering verdicts arising from an accident or catastrophe. At the federal level, too, advocacy is needed to loosen existing technology transfer restrictions and export controls and to free rocket manufacturers from a competitive straightjacket that artificially inhibits the sale of space lift components and systems and limits the insurability of aerospace companies. Finally, aerospace operators will require counsel to navigate them through the current patchwork of space law, i.e., dated international treaties, “soft law” resolutions, different state laws, multiple executive national space policy statements, and conflicting government instructions and directives.
In the final analysis, no matter the challenges ahead, one matter is settled: Outer space no longer is the private domain of sovereign super powers but increasingly will be the realm of authorized nationals around the globe. Aerospace is and will be a wealth generator, and the next chapter of human spaceflight will be guided by free-market principles. This article calls for all Floridians, lawyers and nonlawyers alike, to recognize the particular business and legal relevance of an ongoing revolution in global, national, and local outer space initiatives in the immediate term. While space exploration ultimately is motivated by an eternal metaphysical question (“Are we alone in the universe?”), its purpose is quite practical: Though perhaps hard to fathom, outer space is where humans may one day live and work by necessity.56 Until that final sunset, Florida lawmakers should work vigilantly to fortify Florida’s self-described status as the gateway to discovery.
1 Among the five core treaties adopted by the United Nations at the outset of the era of human spaceflight are the 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; Convention on International Liability for Damages Caused by Space Objects, Mar. 29, 1972, 961 U.N.T.S. 187; Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched into Outer Space, Apr. 22, 1968, 19 U.S.T. 7570, 672 U.N.T.S. 119; Convention on Registration of Objects Launched into Outer Space, Apr. 14, 1975, 28 U.S.T. 695, 1023 U.N.T.S. 187; and Agreement Governing the Activities of States on the Moon and Other Celestial Bodies, Dec. 18, 1979, 1363 U.S.T. 3. See generally United Nations Treaties and Principles on Space, available at http://www.oosa.unvienna.org/oosa/SpaceLaw/treaties.html.
2 Declaration of Legal Principles Governing the Activities of States in the Exploration and Use of Outer Space, G.A. Res. 1962, U.N. GAOR, 18th Sess., Supp. No. 15, U.N. Doc. A/5515 (Dec. 13, 1963).
3 E.g., National Aeronautics and Space Act of 1958, 42 U.S.C. §§2451-2477 (1958).
4 See generally 14 C.F.R. Pts. 400, 401, 405, 406, 413-417, 420, 431, 433, 435-437, 440 (2010).
5 E.g., Martin Marietta Corp. v. Int’l Telecomm. Satellite Org., 991 F.2d 94 (4th Cir. 1993); Appalachian Ins. Co. v. McDonnell Douglas Corp., 214 Cal. App. 3d 1 (Cal. Ct. App. 1989).
6 E.g., Berg v. Reaction Motors Div., Thiokol Chemical Corp., 181 A.2d 487 (N.J. 1962). See also Smith v. United States, 507 U.S. 197 (1993) (Rehnquist, C.J.) (waiver of sovereign immunity under the “foreign country” exception of the Federal Tort Claims Act, 28 U.S.C. §1346(b), does not apply to tort claims against the federal government in Antarctica and, by extension, in outer space).
7 E.g., Smith v. Lockheed Propulsion Co., 247 Cal. App. 2d 774 (Cal. Ct. App. 1967). See also United States v. One Lucite Ball Containing Lunar Material, 252 F. Supp. 2d 1357 (S.D. Fla. 2003). See generally Hawaii’s Moon Rocks Missing, Honolulu Advertiser, Oct. 23, 2009, at 2009 WL 21175643 (reporting that “only three dozen of the 368 gift moon rocks given to countries and states can now be accounted for”).
8 35 U.S.C. §105 (2010). See, e.g., Hughes Aircraft Co. v. United States, 29 U.S.P.Q. 2d 1974 (Fed. Cl. 1993); Hummer v. Administrator, 500 F.2d 1383 (C.C.P.A. 1974). See also Dan L. Burk, Protection of Trade Secrets in Outer Space: A Study in Federal Preemption, 23 Seton Hall L. Rev. 560 (1993); Glenn H. Reynolds, The Patents in Space Act, 3 Harv. J.L. & Tech. 13 (1990).
9 Rogers v. Comm’r, 97 T.C.M. (CCH) 1573, n.13 (2009) (“[f]or [f]ederal income tax purposes, income earned in outer space would be treated just like income earned in international waters or in international airspace.”). See also NERAC, Inc. v. Meehan, 690 A.2d 440 (Conn. Super. Ct. 1995).
10 Cecil Field in Jacksonville, Dade-Collier Training and Transition Airport, Homestead Air Reserve Base, and Kennedy Space Center are among the actual and proposed sites for aerospace ports in Florida. With respect to the Dade-Collier location and its proximity to the Everglades National Park, obvious environmental considerations present themselves.
11 But see John Kelly, World Awaits U.S. Decision on Space Exploration’s Future, Fla. Today, Dec. 21, 2009, at 2009 WL 25728916 (“Don’t let the political jawboning fool you. America is not falling behind because there is no space race. Indeed, the rest of the world is waiting for the U.S. to decide humankind’s next great adventure in space exploration. They’re waiting to follow.”).
12 See, e.g., Mike Williams, Space Coast Worried about “Ghost Town,” Palm Beach Post, May 5, 2008, at 1F (“An estimated 9,235 work directly on the shuttle.”).
13 Frank Morring, Jr., Down to Earth, Aviation Wk. & Space Tech., Mar. 19/26, 2007, at 52, 54.
14 Review of U.S. Human Spaceflight Plans Comm., Human Spaceflight Program (Oct. 22, 2009), http://www.nasa.gov/pdf/396093main_HSF_Cmte_FinalReport.pdf. See also Irene Klotz & Frank Morring, Jr., Let Me Explain, Aviation Wk. & Space Tech., Apr. 19, 2010, at 28.
15 Frank Morring, Jr., Down to Earth, Aviation Wk. & Space Tech., Mar. 19/26, 2007, at 52-53 (recollecting the remarks of a high-ranking U.S. Navy officer a few days after the launch of Sputnik I: “If their satellite weighs 18.4 lb. they are ahead of us. If it weighs 184 lb., I’m scared.” In fact, Sputnik weighed 184 lbs.).
16 Nathan C. Goldman, The Maturing Law of Outer Space, Trial at 42 (Dec. 1995). See also Joanne Irene Gabrynowicz, Space Law: Its Cold War Origins and Challenges in the Era of Globalization, 37 Suffolk U. L. Rev. 1041 (2004); Glenn H. Reynolds & Robert P. Merges, Outer Space: Problems of Law and Policy 25-47 (1989).
17 See generally United Nations Office for Outer Space Affairs, http://www.oosa.unvienna.org/oosa/index.html.
18 See note 1.
19 42 U.S.C. §2451(a) (2010).
20 42 U.S.C. §2451(c) (2010).
21 42 U.S.C. §§2459f-1, 2465a, 2466, and 2472(a)-(b) (2010).
22 President Kennedy addressed a joint session of Congress just six weeks after the Soviet Union sent the first human (Yuri Gagarin) into orbit: “We go into space because whatever mankind must undertake, free men must fully share. I believe that this [n]ation should commit itself to achieving the goal, before this decade is out, of landing a man on the [M]oon and returning him safely to earth. No single space project in this period will be more exciting, or more impressive to mankind, or more important for the long-range exploration of space; and none will be so difficult or expensive to accomplish.” (U.S. Code Cong. & Adm. News, 87th Cong., 1st Sess., Vol. 1 at 1149, 1157 (1961)).
23 John M. Logsdon, The Space Shuttle Program: A Policy Failure?, 232 Science 1099 (1986).
24 Craig Covault, Blame it on Nixon, Aviation Wk. & Space Tech., Mar. 19/26, 2007, at 85.
25 Congressional Budget Office, Setting Space Transportation Policy for the 1990s (1986), available at http://www.cbo.gov/ftpdocs/59xx/doc5935/doc24c-Entire.pdf.
26 42 U.S.C. §70101(a)(10) (2010).
27 See generally 14 C.F.R. Pts. 400, 401, 405, 406, 413-417, 420, 431, 433, 435-437, 440 (2010).
28 See Space Adventures, http://spaceadventures.com/index.cfm.
29 See generally Virgin Galactic, http://www.virgingalactic.com.
30 Futron Corp., Suborbital Space Tourism Demand Revisited 4 (Aug. 2006), available at http://www.futron.com/pdf/resource_center/white_papers/SpaceTourismRevisited.pdf.
31 49 U.S.C. §70103(b)(1) (2010).
32 49 U.S.C. §70102(17) (2010) (A spaceflight participant is “an individual, who is not crew, carried within a launch vehicle or reentry vehicle.”). Under applicable regulations, spaceflight participants must execute a reciprocal waiver of claims with the Federal Aviation Administration and the Department of Transportation in connection with private outer space missions. 14 C.F.R. §460.49 (2010).
33 In 2007, Virginia became the first state to enact legislation conditionally immunizing commercial human space flight operators. See Virginia Space Flight Liability and Immunity Act, VA Code §§8.01-227.8 to 8.01-227.10 (2010). See generally Brent M. Timberlake, To Boldly Go Where Only a Select Few Have Gone Before: Exploring the Commercial Space Launch Act and the Legal Risks Associated with Reaching for the Stars, 44 Rich L. Rev. (2009).
34 Fla. Stat. §§331.501(2)(c) and (3)(b) (2010).
35 Fla. Stat. §331.501(2)(a) (2010).
36 Fla. Stat. §331.501(3)(b) (2010).
37 Governor’s Commission on the Future of Space and Aeronautics in Florida, Final Report ES-1 & n.1 (Jan. 2006), available at http://spaceflorida.gov/docs/FLGovCommissionSpaceReport.pdf.
38 Executive Order No. 05-120 (2005).
39 Laws 2006, c. 2006-60, §2, eff. May 30, 2006. Space Florida is not an agency as defined under state law. See Fla. AGO 94-85, 1994 WL
40 See Space Florida, http://www.spaceflorida.gov.
41 Fla. Stat. §331.305 (2010).
42 Jets to Call KSC Home, Fla. Today, Nov. 13, 2009, at C8. See, e.g., 14 Questions for Frank DiBello, President of Space Florida, Fla. Today, Oct. 4, 2009, available at 2009 WL 19563093; Space Florida, Spaceport Master Plan 31 (2010), available at http://www.spaceflorida.gov/docs/Space%20Florida%20-%20Spaceport%20Master%20Plan%202010.pdf. See also Don’t Let Space Bid Fail, Orlando Sentinel, Sept. 23, 2009, at A20 (recounting documented concerns about the leadership and productivity of Space Florida).
43 Space Florida, Strategic Business Plan §2.1, at 4 (Mar. 2007), available at http://spaceflorida.gov/docs/Strategic_Business_Plan-2007-2.pdf.
44 Id. at 31.
45 Id. at 34.
46 H.B. §1389, Ch. 2010-226.
47 Fla. Stat. §288.1088(1)(c) (2010).
48 H.B. §969, Ch. 2010-222.
50 S.B. §1752, Ch. 2010-147.
51 Id. (Fla. Stat. §288.1083(2)(d) (2010)). “‘Eligible equipment’ means tangible personal property or other property that has a depreciable life of three years or more and that is used as an integral part in the manufacturing, processing, compounding, or production of tangible personal property for sale or is exclusively used in spaceport activities, that is located and placed into service in this state.” Id. Buildings and structural components are not “eligible equipment” unless they are “so closely related to the industrial machinery and equipment that it houses or supports” that they “can be expected to be replaced when the machinery or equipment are replaced.” Id.
52 Id. (Fla. Stat. §288.1083(2)(c) (2010) (including “phosphate or other solid minerals severance, mining, or processing operations,” and excluding electric utility and communications companies, oil or gas exploration or production operations)).
53 Id. (Fla. Stat. §§288.1083(3) and (8) (2010)). The total amount of refunds available is $19 million from June 2010 through July 2011, and $24 million from June 2011 through July 2012.
54 During the 2010 legislative session, the Florida House of Representatives proposed the creation of several “commercial launch zone tax incentives,” but that initiative died in Economic Development Policy Committee. See H.B. 133, §2. Had Fla. Stat. §220.194 become effective on January 1, 2011, Florida’s Income Tax Code would have provided corporate income tax credits for “commercial spaceflight projects” within a “commercial launch zone” by “certified commercial spaceflight businesses.” Among other incentives, the launch tax credit would have rewarded nongovernmental space enterprise for the design and manufacture of a launch vehicle, reentry vehicle, and related components; the provision of launch or reentry services; the provision of payload for a launch or reentry vehicle; the creation and retention of at least 35 net new jobs associated with an individual spaceflight; and the investment of a total of at least $15 million in an individual spaceflight project.
55 See, e.g., Paul West, For Md., Va., A Bold Leap Into Space: Wallops Island Could Become “Cape Canaveral of the North,” Baltimore Sun, July 5, 2009, at 1A. See also Rick Tumlinson, Virginia Can Be a “Space State,” Richmond-Times Dispatch, May 23, 2009, at A11 (discussing emergence of the Mid-Atlantic Regional Spaceport (MARS)); Rene Romo, Governor Signs Spaceport Bill, Albuquerque J., Mar. 2, 2010, at 2010 WL 4351210 (reporting enactment of New Mexico’s Space Flight Informed Consent Act and funding by New Mexico Spaceport Authority of $200 million “Spaceport America”).
56 Frank Morring, Jr., Minding the Gap, Aviation Wk. & Space Tech., Aug. 3, 2009, at 28, 30 (quoting Massachusetts Institute of Technology professor: “If [moving human beings into the solar system for good] is not [the goal], what the hell are we doing?”).
Timothy M. Ravich is an AV-rated, Florida Bar board certified aviation lawyer, litigating aviation and aerospace, business, and product liability disputes in Miami, with Clarke, Silverglate & Campbell, P.A. He earned his M.B.A. from Embry-Riddle Aeronautical University in aviation policy and planning and his law degree, cum laude, from the University of Miami School of Law, where he now teaches aviation law as an adjunct professor. He served as president of the Dade County Bar Association from 2008-09 and currently is chair of The Florida Bar Aviation Law Committee.