Senate Space Subcommittee Hearing

On Tuesday, May 23, 2017, the Senate Committee on Commerce, Science, and Transportation will hold a hearing in the Subcommittee on Space, Science, and Competitiveness entitled, “Reopening the American Frontier: Exploring How the Outer Space Treaty Will Impact American Commerce and Settlement in Space.” The hearing will be held at 2:30 p.m. in room 253 of the Russell Senate Office Building and will be live streamed.  I am honored to be included on the witness list and look forward to testifying.

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What is the Federal Register? A Thing of Beauty

Every now and then it helps to cover certain basic information. Today we will talk about the Federal Register. (I know. Soon this blog will be guest-featured on Fun with Flags. It’s not everyone who’s waiting to be discovered by Big Bang’s Sheldon Cooper.) The Federal Register is, as everyone knows, a repository of recent regulations left by roving bands of regulators. It is also a treasure trove of transportation trivia. It publishes every week day and contains notices of proposed regulations, final rules, agency meetings, petitions for exemption, copyright royalty distributions for satellite transmissions, Coast Guard safety zones, airworthiness directives, and those mysterious self-regulating organizations that the Securities and Exchange Commission keeps mentioning. The Federal Register lets you find things and know things and tell other people about them. The Federal Register is a thing of beauty. Most importantly, it is legal notice to the world, to everyone from coal miners with pneumoconiosis to members of the military-industrial complex. If it’s in the Federal Register and it applies to you, it applies to you even if you don’t actually know about it.

The Office of the Federal Register, which runs the publication, describes it as the newspaper of the Federal Government. No actual news, however, is allowed. See 44 U.S.C. § 1505(b). Instead, the Federal Register contains:

(a) Proclamations and Executive Orders; Documents Having General Applicability and Legal Effect; Documents Required To Be Published by Congress. There shall be published in the Federal Register-

(1) Presidential proclamations and Executive orders, except those not having general applicability and legal effect or effective only against Federal agencies or persons in their capacity as officers, agents, or employees thereof;

(2) documents or classes of documents that the President may determine from time to time have general applicability and legal effect; and

(3) documents or classes of documents that may be required so to be published by Act of Congress.

44 U.S.C. § 1505(a). We can see from all this that an agency must publish its rulemakings, namely, its notices of proposed rulemakings and it final rules, because those have “general effect,” meaning they apply to groups of people, not to particular individuals.  Internal agency procedures do not require Federal Register publication even though they may be of general effect for agency employees.

Paragraph (c) suspends the publication requirements in the event of an attack on the continental United States. (Not sure what that means for Hawaii).

The Federal Communications Commission is a little weird. The FCC releases its documents before they get published in the Federal Register, which means if you know where to look for them you can get a head start in, for example, commenting on a rulemaking. The deadlines on the comment period don’t start until Federal Register publication, so one gains a little time, but one must watch for the Federal Register so as not to miss the comment period on a notice of proposed rulemaking. Back in the day, law firms would send paralegals to the FCC to pick up a stack of paper to see what the FCC’s releases held. Now, you can go here for, for example, satellite issues.

When I first stared practicing law, the Federal Register arrived at my old law firm printed on cheap, thin paper, bound; the savvy lawyers in the firm would check its table of contents every day to see whether there was anything to fuss about. The Federal Register will now email you its daily table of contents. You can sign up here. Later, when I worked for the Federal Aviation Administration, and I knew about the things I cared about before they were published, I almost never checked it. I didn’t need to, but I should have, and I would have if I’d known about this email service. I truly believe that. Despite my otherwise shocking indifference, when the rules I worked on came out, I would wait until the people who logged and docketed were done with the Federal Register and fish them out of the recycling bin. I liked having paper copies for myself, and I’d pass extras along to the person in AST whose rule it was. It was a tangible sign you’d worked on something.

You do not need to be a lawyer to benefit from checking every day. If you wheel electrical power, you might care about the Federal Energy Regulatory Commission, or maybe the emission rules of the Environmental Protection Agency. If you trade in securities, you might want to know what the SEC is thinking of requiring of you so you can get your comments in on any proposed regulations. As a space lawyer, I check the Federal Aviation Administration for commercial space transportation, the Federal Communications Commission for telecommunication satellites, and for remote sensing the National Oceanic and Atmospheric Administration, which also has notices about fisheries, lots of notices. I don’t read the ones about the fish.

Sure, there’s a regulatory slow down, but that doesn’t mean nothing is happening. The Federal Register still contains notices of public meetings and other interesting things that may provide helpful parallels. Also, if you start reading the table of contents now, you’ll get in the habit while it’s easy, and then, later, be one of the first to know when something does make it through.  If you are a law student taking Administrative Law you should subscribe and treat the Federal Register as a palate cleanser in between all the heavy reading.  It’s kind of like Reddit.  Sort of.

I don’t know, this whole topic might be too exciting for Fun with Flags.

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Space Workers

The Winter 2017 edition of the American Bar Association’s SciTech Lawyer contains an article, Peering Through the Celestial Looking Glass: The Legal State of Play for Working in Space, by two lawyers with Bigelow Aerospace, Christopher M. Hearsey and Ryan T. Noble. They report that the Occupational Safety and Health Administration applied its radiation exposure regulations to NASA astronauts, and had to grant NASA a waiver because OSHA never intended its radiation limits to apply in the space environment. Noting that the Commercial Space Launch Act addresses crew and occupant safety, the authors suggest that the CSLA preempts the OSHA statute for crew on board a launch or reentry vehicle.

OSHA limits its applicability to working conditions that are not otherwise regulated by other federal agencies affecting occupational safety or health. 26 Because FAA/AST exercises statutory authority to proscribe and enforce regulations affecting the occupational safety and health of space vehicle crew, OSHA would likely be preempted in so far
 as it applies to licensed or permit
ted launches. The necessity of vesting workplace health and safety authority in an agency with specialized expertise in space flight becomes self-evident considering that ionizing radiation is only one of many hazards unique
 to the space environment. Crew and occupants will also incur physiological and psychological stressors from launch and reentry, prolonged exposure to microgravity, temperature extremes, risks posed by orbital debris and micrometeorites, prepackaged food, recycled water, odors, etc.27 If you plan to work in space, you are definitely on notice that your workplace is on the frontier of both safety and exploration.

This interesting conclusion differs from how the FAA treats OSHA regulations on the ground. For the safety of the public from the launch itself, the CSLA gives the FAA authority over public safety, not worker safety. Accordingly, the FAA regulations do not apply to the safety of workers on the ground, such as those fueling a launch vehicle or testing it before flight. For them OSHA rules apply.

The authors close by recommending that the FAA’s Office of Commercial Space Transportation promote a new way of conducting space flight rather than merely copying and codifying NASA’s approach. The FAA certainly relied heavily on the public safety requirements of the U.S. Air Force when it issued its own regulations. The authors encourage a different approach for human space flight.

 

 

 

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Podcast for Hotel Mars Now Available

I had a fun chat with John Batchelor and David Livingstone about the Outer Space Treaty and related issues on their show Hotel Mars.  The podcast is now available on John Batchelor’s site here where I understand it will remain for a week or two.  Just to be clear, I’m sure that I said the Outer Space Treaty was flexible, rather than that it contained loopholes. “Loopholes” makes something sound like a bug, not a feature. Also, the podcast is available permanently on David Livingston’s The Space Show site here.

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Senate Commerce Hearing on Regulating Space: Treaty, Agency, and Tax Issues

On Wednesday, April 26, 2017, Senator Ted Cruz chaired a hearing titled “Reopening the American Frontier: Reducing Regulatory Barriers and Expanding American Free Enterprise in Space.” The witnesses included Robert Bigelow, founder and CEO of Bigelow Aerospace, Rob Meyerson, President of Blue Origin, George Whitesides, CEO of Galactic Ventures, and Andrew Rush, CEO of Made in Space. The hearing covered a range of issues, but the two most interesting from a space law perspective were the regulatory and treaty discussions. Also, Senator Cruz was once the Solicitor General of Texas, and it was he who argued the case Medellin v Texas, which readers of GroundBasedSpaceMatters.com know is a major case in figuring out the consequences of a treaty that is not self-executing.

Outer Space Treaty. There was a lovely exchange between Senators Cruz and Nelson on the possibility of homesteading the Moon. Senator Nelson told the story of how his grandparents homesteaded just north of the Cape, and when he boarded the shuttle on his way to space he took a moment to look out over the old family homestead. Senator Cruz responded that perhaps his grandchildren could homestead on the Moon or even Mars.

During the question and answer session Senator Cruz asked whether the United States had a sufficient regulatory architecture in place. If the senator was intent on whether Article VI of the Outer Space Treaty, which requires the “authorization and continuing supervision” of “non-governmental entities in outer space,” requires more regulation, he is someone who is in a good position to know that it doesn’t have to.

We can gain insight into how the Senator may think about Article VI from an essay he wrote for the Harvard Law Review Forum, where he said:

With treaties potentially supplanting federal and state governmental authority, the President and Senate should carefully scrutinize all treaties, as a policy matter. We must jealously guard the separation of powers and state sovereignty if we are to preserve the constitutional structure our Framers gave us.

At the same time, our courts must scrutinize the federal government’s powers to make and implement treaties. Our federal government is one of enumerated, limited powers, and the courts should not let the treaty power become a loophole that jettisons the very real limits on the federal government’s authority.

Luckily, the Roberts Court has signaled that it will recognize the limits on the federal government’s treaty power. As Solicitor General of Texas, I had the privilege of arguing Medellí­n v. Texas, which recognized critical limits on the federal government’s power to use a non-self-executing treaty to supersede state law.

(emphasis added). Medellin is where the Supreme Court said that a non-self-executing treaty is not enforceable federal law. Article VI is  not self-executing because it requires Congressional action in the form of legislation to decide if a particular space activity requires authorization and supervision. Since Article VI does not require oversight of either all activities or any particular activity, the treaty itself does not provide sufficient reason to create a new regulatory regime.  For more detail on this issue, see here.

Regulations. One of the three regulatory agencies that oversees space activities is the Federal Aviation Administration’s Office of Commercial Space Transportation, which authorizes and regulates the launch and reentry of rockets, capsules, hybrid carrier aircraft and rocket combinations and any other vehicle going to or returning from outer space. Mr. Meyerson stressed Blue Origin’s position that the FAA needed to prioritize its existing authority before taking on new authority such as space traffic management. He wants the FAA to address the congestion in the nation’s airspace before attempting to solve any congestion in outer space. This comment alludes to the growing debate between the airlines, launch operators, and the FAA about how to integrate space travel with air travel. You have to go through the nation’s air space to get to outer space, after all, and the airlines don’t want holds for frequent launches placed on major travel routes.

Another point that Blue Origin touched on was duplication between the FAA and the U.S. Air Force. The bulk of the nation’s commercial launches take place at federal launch ranges such as Cape Canaveral, Vandenberg, Wallops, and White Sands, which are operated by the Air Force, Army and NASA. The ranges have their own safety requirements, and launch operators must agree to abide by them when they contract with the range to use their facilities and services.

It would be interesting to know whether Blue Origin finds duplication to be a concern solely for purposes of reentry, or on the launch segment as well, because there is a mechanism in place to avoid duplication for launch.

Years ago, the FAA and the Air Force attempted to resolve duplication concerns when the FAA promulgated 14 C.F.R. part 417, which contains many of the Air Force’s safety requirements. Neither agency thought duplication efficient  so the FAA committed to conducting “launch site safety assessments,” in which it would regularly review the Air Force’s requirements and practices to ensure compliance with part 417. See 14 C.F.R. § 417.101. The FAA would keep a list of where the two agencies diverged, and it would only be for the differences between the FAA and the range that the FAA would require a launch operator to demonstrate satisfaction of its requirements to the FAA. Otherwise, the FAA planned to rely on the ranges for safety oversight for launch. Reentry is another matter and may be the source of Blue Origin’s concerns. A quick review of parts 431, which applies to reusable launch vehicles, and part 435, which applies to all reentry vehicles, shows that the FAA does not rely on the ranges for oversight, perhaps, if memory serves, because at the time the FAA issued these rules, the ranges did not have reentry requirements.  Regardless, Blue Origin wanted the FAA designated as the sole oversight authority for licensing.

Intellectual property and taxes. Mr. Rush of Made in Space had two interesting requests, the first being that if a company develops intellectual property it be allowed to retain the intellectual property it develops. This may have to be the subject of a separate post depending on the context of his remarks, and I do not yet have his written testimony.   He also requested, however, that there be no customs or import tax for goods manufactured in space.  The Commercial Space Launch Act may already address that question. 51 U.S.C. § 50919(f) states:

(f)Launch Not an Export; Reentry Not an Import.—

A launch vehicle, reentry vehicle, or payload that is launched or reentered is not, because of the launch or reentry, an export or import, respectively, for purposes of a law controlling exports or imports, except that payloads launched pursuant to foreign trade zone procedures as provided for under the Foreign Trade Zones Act (19 U.S.C. 81a–81u) shall be considered exports with regard to customs entry.

 

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This New Ocean

This isn’t space law, but it feels like space law.  Or, to put it more pedantically, this application to the National Oceanic and Atmospheric Administration from Lockheed Martin Corporation to extend its deep seabed mineral exploration licenses contains interesting parallels to the mining of celestial bodies.  The mining would take place outside of anyone’s sovereign territory.  As a review of Lockheed Martin’s application shows, it’s technically very difficult.  Also, there’s a treaty that Lockheed is waiting on the United States to ratify, somewhat like some space miners are waiting for Congress set up a regulatory structure for them before they will start mining.   There is an International Seabed Authority, much as some, including the signatories of the Moon Treaty, would have there be an international authority for extraterrestrial activity.  Unlike for space miners, Congress did pass a law, the 1980 Deep Seabed Hard Mineral Resources Act, to regulate and administer seabed mining.

NOAA’s Federal Register notice links to the application itself.  In its application, Lockheed Martin states that it:

requests an extension of the seabed exploration licenses for the two Lockheed Martin claims, USA-1 and USA-4. NOAA renewed these licenses in 2012 enabling us to continue our investigation into the viability of exploration and development of the USA-1 and USA-4 licensed areas. Since the most recent 5 year license extension was granted, the Corporation has made significant progress against Phase I of its Exploration Plan.1 However, during the same period, progress on the Exploration Plan has been delayed due to the prolonged, severely depressed state of the metals markets and continued delay in resolving the security of tenure issues given the lack of ratification of the U.N. Convention on the Law of the Sea.

It would be very interesting to know why Lockheed sees the lack of ratification of the UN Convention as an impediment to going forward, but I found no additional detail or explanation in the Lockheed application for this tantalizing tidbit.

A quick internet search unearthed this comprehensive review of the 1982 UNCLOS.  Writing in 2012, Steven Groves of the Heritage Foundation explains how U.S. companies can engage in seabed mining without joining UNCLOS.  For one thing, the United States has entered into a series of agreements with other nations to, among other things, resolve conflicting claims and to notify each other when approving applications for exploration. A number of nations

have made a commitment to the United States that they will not interfere with or infringe on the claims by the United States or its companies in the CCZ. None of the nations has denounced or withdrawn from the agreements or has otherwise indicated that it does not respect its international commitments to recognize U.S. claims in the CCZ.

As a legal matter the article notes, the countries who are part of  UNCLOS “cannot prevent the United States or any other nation from mining the seabed any more than they can prevent the U.S. from exercising the freedom of navigation and overflight, the freedom of fishing, or any other high seas freedom.”

Simply because most nations have ratified UNCLOS does not mean that those nations or any international organization, such as the Authority, may deny a right to the United States that it enjoys under international law. One set of nations cannot annul the rights of another set of nations by drafting a treaty that the second set of nations chooses not to join.

(From the perspective of Article II of the Outer Space Treaty, which bars national appropriation of celestial bodies, it is interesting to note that no nations claim sovereignty over the deep seabed yet those nations may recognize claims.)

Groves’ article sums up the state of affairs for security of tenure:

In sum, acting under the authority of DSHMRA, customary international law, and multilateral agreements with foreign countries and companies, the United States has successfully claimed and maintained security of tenure over vast tracts of the deep seabed. The U.S. has done so as an independent sovereign nation exercising its inherent rights.

Groves’ discussion highlights a number of areas of concern for U.S. companies, including environmental measures, inspections, data sharing, and, most significantly for a company with fiduciary obligations to its shareholders:

Under an UNCLOS regime, a U.S. company would have limited control over the area licensed to it for exploration. Once a U.S. company identifies an area of the seabed that it wants to explore, it must divide the area into two halves of equal estimated commercial value and share its data on the area with the Authority.[51] Thereafter, the Council reserves one half of the area for exploration by developing countries or the Enterprise, the Authority’s mining arm.[52] The remaining half would be licensed to the U.S. company for exploration. The size of the U.S. company’s half is effectively limited to only 75,000 square kilometers.[53] (By comparison, the USA-1 exploration area is almost 169,000 square kilometers.[54] Finally, a U.S. company would not have exclusive access to its half because the Authority has the right to enter into contracts with third parties to explore and mine the U.S. half for resources other than polymetallic nodules.

According to NOAA’s Federal Register notice, it seeks comments from the public by May 22, 2017, on Lockheed Martin’s request for an extension.  It will be interesting to follow this docket and see if anyone objects to the extension.  Might competitors file?  Might environmental groups?  Might those who think this a fine regulatory model for outer space be deterred by the thought that others get to comment on and thus delay their business plans?

Bonus points to anyone able to identify the source of this post’s title.

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Opportunity to Comment on Burdensome Regulations

We may be starting to see the President’s earlier Executive Orders, including E.O. 13777, start to bear fruit.  The aviation side of the FAA is holding an ARAC meeting. on April 20, 2017.   The Environmental Protection Agency recently released a notice requesting comments from the public on which of its regulations it should repeal, replace, or modify in accordance with the Executive Order directive.  E.O. 13777 requires each agency to form a task force and identify regulations that:

(i) eliminate jobs, or inhibit job creation;
(ii ) are outdated, unnecessary, or ineffective;
(iii) impose costs that exceed benefits;
(iv) create a serious inconsistency or otherwise interfere with regulatory reform initiatives and policies;
(v) are inconsistent with the requirements of section 515 of the Treasury and General Government Appropriations Act, 2001 (44 U.S.C. 3516 note), or the guidance issued pursuant to that provision, in particular those regulations that rely in whole or in part on data, information, or methods that are not publicly available or that are insufficiently transparent to meet the standard for reproducibility; or
(vi) derive from or implement Executive Orders or other Presidential directives that have been subsequently rescinded or substantially modified.

Each agency must seek public input, and by late May provide to the agency head a report that identifies regulations that are candidates for repeal, replacement or modification.  The FAA’s Aviation Rulemaking Advisory Committee addresses aviation regulations.  I have not seen a similar notice from the FAA’s Commercial Space Transportation Advisory Committee (COMSTAC) or on the website of the Office of Commercial Space Transportation (AST).

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Inflating the Penalties for Commercial Space Transportation

To account for inflation, the Federal Aviation Administration issued a final rule that adjusts the fines—“civil penalties” in FAA lingo—that the agency may impose for violations of its regulations and statutes. The agency has to do this because several laws require inflation adjustments to ensure that the threatened fines of regulatory agencies continue to have a deterrent effect.   The laws include the Federal Civil Penalties Inflation Adjustment Act of 1990, the Debt Collection Improvement Act of 1996, and, most recently, the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015. The 2015 Act amended the formula for and frequency of agency inflation adjustments, requiring an initial “catch-up” adjustment, followed by annual adjustments of civil penalty amounts using a statutorily mandated formula. The FAA implemented the initial adjustment in July 2016. This new rule provides the first of the annual adjustments. The FAA notes that the new law:

provides a formula for annual inflationary adjustments that increase civil penalty maximums and minimums by a cost-of- living adjustment (COLA). Under the FCPIAA, as amended by the 2015 Act, the COLA for each civil penalty is the percent change between the U.S. Department of Labor’s Consumer Price Index for all-urban consumers (CPI–U) for the month of October of the calendar year preceding the adjustment and the CPI–U for the month of October of the previous calendar year. Any resulting increase must be rounded to the nearest $1.

*          *          *

To derive the 2017 adjustment, the FAA must multiply the maximum or minimum penalty amount by the percent change between the October 2016 CPI–U and the October 2015 CPI– U. In this case, October 2016 CPI–U (241.729)/October 2015 CPI–U (237.838) = Multiplier (1.01636).5 Accordingly, the agency multiplied the civil penalty maximums and minimums provided in current 14 CFR 13.301 and 406.9 by 1.01636 to derive the updated maximums and minimums provided in this final rule.

Relying on an interpretation of the 2015 law from the Office of Management and Budget, the FAA did not issue a notice of proposed rulemaking for public comment. This final rule changes the minimum and maximum penalties effective April 10, 2017, the day the rule was published in the Federal Register.

The FAA’s space transportation regulations do not contain minimum or maximum penalties like the FAA’s aviation regulations do. Instead, the commercial space regulation, 14 C.F.R. § 406.9, implements the single penalty listed in 51 U.S.C. ch. 509 (aka the Commercial Space Launch Act). When Congress initially granted the FAA the authority to impose civil penalties, it capped the amount at $100,000.00 per violation per day. 51 U.S.C. § 50917. The United States Code still says that. With the passage of its various inflation adjustment laws, Congress mandated a global search and replace on civil penalties, including those imposed for violations of space regulations. Thus, the FAA’s own new requirement now says:

14 C.F.R. § 406.9 Civil Penalties.

(a) Civil penalty liability. Under 51 U.S.C. 50917(c), a person found by the FAA to have violated a requirement of the Act, a regulation issued under the Act, or any term or condition of a license or permit issued or transferred under the Act, is liable to the United States for a civil penalty of not more than $229,562 for each violation. A separate violation occurs for each day the violation continues.

The FAA will not necessarily claim a civil penalty as high as that, and, to my knowledge, has yet to do so.  Agencies are allowed discretion in deciding the size of a penalty, and will typically attempt to impose smaller fines for first-time violations.

 

 

 

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Deadline Extended in FCC Satellite Rulemaking

If you are following the Federal Communications Commission’s rulemaking for Non-Geostationary, Fixed Satellite Service System and Related Matters, the FCC extended the deadline for reply comments on its proposal until April 10:

the International Bureau, pursuant to delegated authority,extends the deadline for reply comments to be filed in response to a NPRM concerning potential changes to the U.S. Table of Frequency Allocations contained in part 2 of the Commission’s rules and to part 25 of the Commission’s rules governing satellite communications. Interested parties will now have until April 10, 2017 to file reply comments.

Unlike the Federal Aviation Administration, the FCC regularly provides an extra comment period.  In the first comment period, any interested person may file comments on the agency’s notice of proposed rulemaking.  Then, all these interested persons go and read each others’ comments, are shocked and appalled or really like something they hadn’t thought of, and get another chance to comment to the FCC in reply to the first round of comments. Since some of them are competitors, this makes life interesting.

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