Space Property Rights: More Common Law than Marxism, But That’s a Good Thing

I’ve been reading a lot of law review articles recently, and I feel like sharing.  In Deploying the Common Law to Quasi-Marxist Property on Mars,  Professor Thomas E. Simmons attempts to meld ye olde common law with a Marxist view of property rights.  I’m not so sure it’s all that Marxist, but he tries to come up with something with enough Marxism to satisfy the intent of the 1967 Outer Space Treaty–which we are reminded was negotiated with the former Soviet Union–while still giving the risk takers who settle space some measure of certainty and incentive for their efforts.

Article II of the Outer Space Treaty itself states

Outer space, including the Moon and other celestial bodies, is not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means.

Most people read this to mean that countries or governments can’t claim territory because that would constitute “national appropriation.”  According to Simmons, for common law countries like the United Kingdom and the United States, Article II creates a problem for private property claims in land because all real property ultimately derives from the crown.  (I do feel like the U.S. broke away from that whole crown thing a couple or more centuries ago.  Also, while land “grants” might require sovereignty, “recognition” of property rights need not.  See, e.g.,  the deep sea bed claims.)

So What?  In discussing property rights we need to remember that property rights are useful, and for that point we can look at a space homesteading plan grounded in property rights.  The writer, Rand Simberg, notes:

At the heart of the prosperity of the West lie clear and recognized freely transferrable property rights, protected under the rule of law.1 Absent legally recognized rights to buy, own, and sell titled property, it is difficult, if not impossible, to get a loan to purchase said property, improve it, mine it, drill for minerals on it, or sell the proceeds from any of those activities. Property rights are a sine qua non of wealth creation and a reason why America and other Western nations are rich and others are poor. Moreover, they lie at the heart of liberty. Their current absence off planet partially explains why we have not developed the next and, in a sense, last frontier—space.

The footnote goes to the work of economist Hernando de Soto.

The quasi-Marxism and the common law:  Simmons, when faced with the difficulties of granting property rights by someone who doesn’t have them to grant, namely the States Parties to the treaty, constructs his theory.  He starts out by noting that a court, faced with two claimants squabbling over competing claims to the same property on Mars, could attempt to resolve the dispute because the Treaty does not clearly prohibit courts from doing so.

Simmons observes the quasi-Marxist nature of Article I of the Treaty:

The proclamation that celestial worlds “shall be the province of all mankind” [in Article I] runs counter to the idea that one or more persons could assert exclusive control and enjoyment of [*50] certain parcels of a celestial body like Mars. There is no exception in Article I for private use, even on a small scale, and the phraseology is eerily similar to Marxist ideologies of “communal ownership for the advancement of the common good.” That the United States may have committed itself to an entire universe outside the Earth’s outer atmosphere imprinted with a Marxist modulation may be stirring to some and repugnant to others

Simmons at 49-50.  He also notes, however, that state appropriation of Moon rocks shows that neither the U.S. nor the U.S.S.R. view the ban on national appropriation as a wholesale ban. These practices, he says,  “can inform the interpretation of the OST.  They suggest that the ban on appropriation and the province of all mankind principle admit some degree of private, exclusive and alienable property rights.”

Because the treaty displays neither pure capitalist nor pure socialist principles of property rights, he treats it as a hybrid of both.  A historical retrospective shows that:  “in practice, the Soviet Union allowed for variable use paradigms, some of which mimicked corporate, cooperative, nonprofit, and even individual ownership rights in a Western context. For example, cooperatives or collectives essentially owned a great deal of property. Individuals held other limited tracts, at least with regards to non-productive personal use property. ”

He recommends that any solutions to the problem “hew as closely as possible to the non-appropriation and common use [treaty] text, thus minimizing the possibility of outright judicial rejection of a request to recognize and enforce private property rights on the Martian surface.”  He considers two common law principles consistent with such a reading, namely, the principles of adverse possession and tenancy-in-common.  A person who wants to claim someone else’s property under the doctrine of adverse possession must enter the land, and

then hold (1) exclusive, (2) open and notorious, (3) adverse, and (4) continuous possession for a given minimal period of time.  The exclusive element requires that the adverse occupier not share [*63] possession with the titleholder. The open and notorious element means that occupation has to be visible, so that the titleholder will have, or at least will have available, a notice of occupation, had she periodically checked on her property.  The adverse requirement excludes occupiers that are holding possession with the permission of the titleholder – as a tenant, for example. The continuous element requires the occupier’s occupation to be uninterrupted.

Simmons at 62-63.  If you are a lawyer or a science fiction writer it is worth reading his whole discussion of this issue for the nuances he explores with his imaginary settlers.  He does believe that the owners should be able to sell, or “alienate” in legalese, their land, despite how repugnant this may be to Soviet precepts of real property, but he would allow to prevail the Western distaste for restraints on being able to dispose of one’s property.

The other common law principle that Simmons believes would have utility on Mars is that of tenancy in common, which he defines as follows:

Other than property and property rights obtained by prescription, adverse possession, or other means, Martian real property which is reasonably available for productive use or occupation by one or more Martian settlement organizations operating within proximity to one another on Mars shall be conclusively presumed to be held by those settlement organizations as tenants in common upon an express affirmative declaration by such a settlement organization claiming the property for its present or future use.

Simmons at 72.  He offers the following rationale:

The inverse partition rule establishes a presumption of common ownership between two or more Martian settlement organizations operating within proximity to one another on the planet Mars. The rule does not apply to chattels or intangible property; nor does the rule does apply to individual Martian settlers, but only to the corporate bodies supervising and typically employing the Martian settlers in question. The rule is consistent with the 1967 Outer Space Treaty’s prohibition on national appropriation of celestial bodies as it merely recognizes land rights or land use rights in private corporate bodies which can be thought of as holding land as a joint collective. Moreover, the rule gives recognition to the treaty’s requirement that outer space [be] used in the common interest of all mankind while allowing corporate actors to efficiently allocate and exchange land and/or land use rights between themselves in a manner that puts Martian real property to its highest and best use. Only property that falls within the scope of the rule can be claimed by affirmative declaration; …; the vast other land areas of Mars remain entirely open present and future settlements without discrimination.

Id.  Again, this discussion is worth reading in its entirety.

The Marxism is, if I understand correctly, reflected in the notion that open land on Mars falls under Article I’s common use principle.  Also, I believe he views both the collective nature of corporations, which are likely to found the first settlements, and the tenancy-in-common as quasi-Marxist.  Corporations may be likened to Soviet cooperatives, and tenancy in common is another form of collective ownership.

In short, his theory incorporate the common use principles of Article I, but then allows private appropriation without resort to the national appropriation forbidden by Article II.  This requires viewing the courts as mere adjudicators of disputes, which is not a hard observation to make in light of the fact that that is indeed a function they serve.  That they are a branch of a government does not mean that the court has appropriated any land, merely that it has settled a dispute as between two entities who both want to use it.

One nice thing about this theory is that rights get “recognized” rather than “granted.”  That’s not a bad thing.

Looking forward:  I vote that no governmental body do anything until we see how this quasi-Marxist experiment turns out:

China does not permit the private ownership of land. Instead, private parties may obtain the right to use property for up to seventy years. These parties own the structures on the land but not the underlying real estate. … Does the holder of a land use right have the ability to renew that right when it expires? If the holder has this ability, must it pay to renew the right? And, if the holder must pay, how much?

Under Simmons’ theory no action is necessary.  The courts may settle whatever disputes come up between private parties.


Note:  I’ve stripped the footnotes from the Simmons quotations.


Senate Hearing, Orbital Debris, and a Manx Prize

I watched yesterday’s latest in the series of Senate Commerce Committee hearings on Reopening the American Frontier. There was, as billed, lots of good talk about public private partnerships in the development of the space frontier, but what I found most interesting was one of the responses of Dr. Moriba K. Jah to a question about orbital debris, of which there is a lot in orbit, from Senator Ted Cruz.

Background:  In his written testimony here, Dr. Jah explains the magnitude of the orbital debris problem as follows:

The US Strategic Command (USSTRATCOM) currently has over 24,000 records active in its space situational awareness database, commonly referred to as the Department of Defense “catalog.” Of these, well over 18,400 records correspond to well-tracked, well-understood [resident space objects] RSOs in Earth-centric orbit, roughly 1,300 of which are operational satellites; the rest are so-called “space junk.”

In response to Senator Cruz’s question about what to do about space debris, Dr. Jah said, among other things, that the European Space Agency has something called a Clean Space initiative which is working to identify and remove space debris. He noted that it’s more expensive to bring something down than to put up something that works. He also said that it’s politically not very feasible because any sovereign nation is the owner of that piece of debris. (But see here for a discussion of the ownership issue.) Dr. Jah himself advocates a civil space traffic management public private partnership.

De-orbiting.  What delighted me, however, was his mention of de-orbiting space debris. I think someone should offer a prize to anyone who figures out how to bring it in. I even wrote a science fiction novel to that effect titled Manx Prize, where a consortium of satellite and orbitat operators headquartered on the Isle of Man offers a prize to anyone who first brings in a large, dead satellite. Safely. It made sense to me that the companies who need space cleaned up should offer an incentive to do so, one perhaps large enough for the contestant to be able to purchase the zombie satellite on orbit. Just to be clear, the Consortium of Man is in no way modeled after the Space Data Association, which in real life is situated on the Isle of Man. I, like everyone else, just really like saying “Manx.”

There are a host of legal issues associated with de-orbiting someone else’s property. The offer of a prize means that the contestants have to figure them out as well as all the technical issues. Charlotte Fisher is the engineer trying to win this prize, and the story centers around her efforts and travails, but she has a lawyer for the other stuff, like purchasing dead satellites from their owners and getting access to proprietary technical specifications. The story involves regulatory shenanigans. I was at the FAA when I wrote this, so I was sensitive about naming the regulatory agency so I just called it “the regulator.” It’s nice and ominous sounding, isn’t it? I got around ITAR, the International Traffic in Arms Regulations, but in no way that constitutes sound legal advice for anyone in the present. CFIUS, the Committee on Foreign Investment in the United States, came in handy at the end.

For the technology at the time I was writing the book Space News had a lot of stories about dead satellites.  Someone won a real life prize for a sticky boom, and I found a design for what Charlotte called her “brake-and-bake.”  The day job had me good on launch, ok on reentry, but pretty poor on orbit.  Basically, my knowledge tracked the FAA’s evolving jurisdiction: but I knew what I needed to research, I knew where to find things, and I had access to a few good orbital mechanics.

Anyway, a prize would be cool. I recall hearing that the Ansari X Prize produced a collective expenditure on reusable suborbital rockets by all the contestants far in excess of what the prize offered. Competition can work. Think of the glory. Now, if only there were someone around with the right incentives to offer that kind of prize.

And, if you feel like picking up a copy of the book, I thank you in advance.



Two Topics: The Space Show’s Harmful Contamination Show & NOAA’s Request for Comment on Regulatory Reform.

The Space Show and Harmful Contamination.  I am looking forward to being on The Space Show with Dr. David Livingstone this Sunday at 3 p.m. EDT.  We will be talking about the applicability of the harmful contamination provision of Article IX of the Outer Space Treaty to the U.S. commercial sector.  As noted in this post, the treaty’s restrictions on harmful contamination apply to government rather than private actors in outer space.

NOAA.  As we have seen with other regulatory agencies, the Department of Commerce’s National Oceanic and Atmospheric Administration is requesting comments, in accordance with the President’s Executive Orders directing it to do so, on how it may streamline its regulations and guidance.  Specifically, NOAA’s National Marine Fisheries Service and National Ocean Service request comment on their regulations and guidance.  These Services administer laws that protect the environment, such as the Marine Mammal Protection Act, the Endangered Species Act, and the Coastal Zone Management Act.  You may ask what this has to do with space law.

What this has to do with space law is that when the FAA issues a license to launch a launch vehicle or reenter a reentry vehicle, or to operate a launch or reentry site, that license is a “major federal action” under the National Environmental Policy Act, which means that the license applicant must provide extensive information to the FAA for the preparation of an environmental impact statement or assessment.  Part of that information must show how the applicant will comply with the various environmental laws on the books, including those listed above.  Applicants for site licenses spend a lot of money on these reviews.  Accordingly, if you are a licensee or an applicant, now is your chance to have input on the regulations and guidance that implement those laws.

If you comment, you should, as NOAA strongly urges in its notice, follow a few protocols.  They will make your comments easier to understand and be more persuasive and thus more effective.  Cite to the specific provision in NOAA’s guidance or the Code of Federal Regulations.  Explain the burden it imposes.  Don’t just say it’s a burden, explain what harm it does and why and how.  Even better, explain why the requirement is unnecessary or duplicative of another requirement.  Maybe they’re both unnecessary. Do say why. The more detail you provide the better.  Bald assertions that something is harmful won’t get you very far.  When you are talking to an agency who thinks that its requirement is necessary, you have to do more than say, “nuh, uh.”  That is what is called a legally insufficient comment and the agency may ignore it.

Comments due:  August 21, 2017



So You Want to Launch a Rocket? The FAA is Here for You

I was a space lawyer for the Federal Aviation Administration. I worked in the Chief Counsel’s office and supported the Office of Commercial Space Transportation (AST).

A number of years ago a whole passel of school kids showed up for A Day At The FAA. One lucky little girl, maybe a fifth grader, got assigned to me. We chatted in my office for a while. I explained how the FAA licenses and regulates commercial space launch and reentry, and the operation of launch and reentry sites (aka “spaceports”). I explained how any U.S. citizen launching anywhere in the world needs a launch license from the FAA (which explains why Michael Flynn’s Firestar has to be alternate future history, although I didn’t get into that since I figured she hadn’t read it yet). I may even have mentioned how a person who launches without a license can get heavily fined, with the fines being adjusted for inflation every four years at that time. I talked about launch safety, and how cool it is that in the United States you achieve safety by exploding the rocket. This kid asked a few questions, so I knew we were communicating. She seemed to be taking it in, but you never know.

Then we went downstairs.   I had a meeting in AST and she sat in on that. Then I took her to meet some of the engineers I worked with, where they were toiling away at their desks. AST’s space is pretty fun for a kid. It’s full of posters of launch vehicles, air-launched rockets, carrier aircraft that look like science fiction, boring carrier aircraft that don’t, sea-launched rockets, more rockets, and a line drawing of a Celtic spaceport (yes, it did look like crop circles, why do you ask?). One of the engineers pointed my young guest to a poster of two kids bending over a toy Estes model rocket. The two kids looked happy. “What,” asked the engineer of my visitor, “are these two doing wrong?” (The kids were leaning over the rocket. That’s bad.)

Wide-eyed, she looked up at him and swallowed nervously, but said very clearly, “They don’t have a license.”

Four grown men just about fell out of their chairs laughing. I was filled with pride, of course, and they quickly explained the safety issue, that she’d been hanging out with me too long, that launching rockets was lots more fun than the boring, paper-work obsessed lawyer had made it sound, and that they were totally impressed with her. The kid was happy.

The point is, you do need federal permission to launch a rocket from the United States. And, if you are a U.S. citizen or other entity you need FAA approval to launch anywhere in the world. The Commercial Space Launch Act says so. You also need permission to reenter a reentry vehicle or operate a spaceport. The one thing my protégé had wrong, however, is that you don’t need a license—or even an experimental permit—to launch a toy rocket or even a somewhat large amateur rocket.

So, if you want to launch a rocket, first, go do all your rocket science. That’s the easy part. Now, open the Code of Federal Regulations (CFR). Congress passed the first version of the Commercial Space Launch Act in 1984, but the FAA’s regulations implementing that very broadly worded law may be found in Title 14, chapter III of the CFR. (I share these acronyms not to be annoying, but so you will recognize them as you pursue your research, because lots of other people use them.) The regulations get very detailed, and are full of design and test requirements for the flight termination system you will need to destroy your rocket in case it goes off course. You need a flight termination system if you are launching a large expendable launch vehicle (ELV), the kind that jettisons its component stages in the ocean on its way to orbit, but if you are flying people on board the FAA may try to be more flexible. (The Shuttle used to have a flight termination system). You will also have to launch far enough away from other people that you meet the FAA’s risk criteria. If you have a really big rocket this likely means you should launch over the ocean. We took the risk criteria from the Air Force, which called them the “expected casualty” numbers. I meekly suggested calling them something else but got overruled.

Anyway, back to your license application. Make sure you have filled it out completely enough for the FAA to get started working on it. If you do, the clock starts ticking on the FAA, which has 180 days to complete a review where it makes sure you are capable of satisfying the regulations. If you provide only a semi-finished application, the FAA can stop the clock. You will be annoyed but will get to complain how the government is slowing you down.

Then there’s the National Environmental Policy Act, which requires environmental impact statements and environmental assessments for major federal actions, which includes licensing. If you launch from an existing spaceport you won’t have to do too much work for an environmental review. If you go from a new place of your own, you might be out there counting desert tortoises before you can launch to establish an environmental baseline. You have been warned.

You need a payload review. If your payload isn’t licensed by the FCC or NOAA, the FAA gets to look at it for whether there are any national security or foreign policy concerns.   (The latter is something I’ve been writing and testifying about a lot, but you’re the launch operator with plenty of other things to worry about, so I won’t go into that today.)

Do you want to put people on your rocket? There are legal requirements for that, too. There are three types of people you might take to space or on a suborbital jaunt: space flight participants, crew, and government astronauts. The FAA isn’t allowed to regulate how you design or operate your rocket to protect the people on board until 2023, unless there has been a death, serious injury, or a close call. Because the crew are part of the flight safety system, the FAA determined it could have regulations in place to protect the crew. That those requirements might also protect space flight participants is purely a coincidence.   However, just because the FAA can’t tell you what to do to protect the space flight participants doesn’t mean you are out of its clutches. You have to provide the crew and space flight participants—but not the government astronauts because they already know how dangerous this is—informed consent in writing. You have to tell them the safety record of your vehicle and others like it, that the government has not certified it as safe, and that they could be hurt or die.

Once you get your license, you have to buy insurance or show the FAA that you have enough money to cover the damage you may cause to third parties or U.S. government property. Also, you have to sign waivers of claims with the government, all your customers (each person who has put an object on your vehicle as a payload), crew, space flight participants, and your contractors and subcontractors. Everyone, to put it in largely accurate terms, has to agree not to sue everyone else.

At this point, your eyes may be glazing over. You might think to yourself that you will incorporate as a foreign entity and go launch somewhere else like they did in Firestar, and get away from all of this. Not so fast. Firestar was alternate future history, and the people who administer the dread ITAR, the International Traffic in Arms Regulations, will want to take a look at you if you try to provide your launch technology to a foreign entity, which is what you have become if you incorporate in another country.

When you decide that’s too hard, the FAA will be there for you. Welcome back.


NASA’s Civil Penalties as Adjusted for Inflation

On June 26, 2016, NASA released an interim final rule and request for public comments to adjust its civil monetary penalties to account for inflation.  Its new penalties apply to false claims, use of appropriated funds for lobbying or influencing certain contracts, and failures to report certain lobbying transactions.

Effective date:  August 25, 2017.

Comment deadline:  although the notice purports to request public comment, it does not provide a comment deadline.  Section V of the preamble invites comment. Because this is an interim final rule, an agency may change its rule in response to comments.  As the Federal Register explains:

Interim Final Rule: When an agency finds that it has good cause to issue a final rule without first publishing a proposed rule, it often characterizes the rule as an “interim final rule,” or “interim rule.” This type of rule becomes effective immediately upon publication. In most cases, the agency stipulates that it will alter the interim rule if warranted by public comments.  If the agency decides not to make changes to the interim rule, it generally will publish a brief final rule in the Federal Register confirming that decision.

UPDATE as of 7/12/17:  NASA issued a correction stating that the deadline for the public to file comments is July 26, 2017.  That’s pretty soon.


FAA’s Office of Commercial Space Transportation Information Collection: Experimental Permits and Customer Survey

Experimental Permits.  On June 19, 2017, the FAA’s Office of Commercial Space Transportation released a request for comment on its proposed renewal of its collection of information from applicants for experimental permits.  Written comments are due August 18, 2017.  As background, the FAA states:

14 CFR part 437 established requirements for the FAA’s authority to issue experimental permits for reusable suborbital rockets to authorize launches for the purpose of research and development, crew training and showing compliance with the regulations. The information collected includes data required for performing a safety review, which includes a technical assessment to determine if the applicant can launch a reusable suborbital rocket without jeopardizing public health and safety and the safety of property. This information collection requirement is intended for incorporating acquired data into the experimental permit, which then becomes binding on the launch or reentry operator.   The applicant is required to submit information that enables FAA to determine, before issuing a permit, if issuance of the experimental permit would jeopardize the foreign policy or national security interests of the U.S.

Customer Survey.  On June 19, the FAA’s Office of Commercial Space Transportation also released a request for comment on its proposed renewal of its customer service survey.  This does not mean that AST is conducting the survey now, only that it is asking the Office of Management and Budget to renew a previously approved “information collection,” which is the technical term for the survey itself.  Written comments on the survey are due August 18, 2017.

One might think that the ultimate customer is the public, that is, those persons the FAA protects from errant launch vehicles.  However, “customer” applies here to those entities required by force of law to obtain authorization from the FAA in the form of a license or permit, including launch and reentry operators and spaceports.

Topics for comment.  For either of the FAA information collections, the FAA says you may comment on:

Whether the proposed collection of information is necessary for FAA’s performance; (b) the accuracy of the estimated burden; (c) ways for FAA to enhance the quality, utility and clarity of the information collection; and (d) ways that the burden could be minimized without reducing the quality of the collected information.


Procedural Protections of ASCFEA

As noted last week, the recently marked-up American Space Commerce Free Enterprise Act would require a non-governmental U.S. entity operating a space object to obtain certification  from the Department of Commerce. Last week’s post addressed some of the substantive issues in the bill. This week, we’ll take a look at the procedural protections the bill would offer.

Organizations: The first item of interest is the location of the regulator. Although the Federal Aviation Administration’s (FAA) Office of Commercial Space Transportation (AST) has issued a handful of payload reviews over the years for non-traditional space operations, the House Committee does not believe all space activities will have a transportation nexus requiring the FAA’s regulatory culture. Accordingly, the bill would place regulatory oversight and certification authority in the Department of Commerce’s Office of Space Commerce. The ASCFEA would provide that a space object whose operations are certificated by Commerce would not require an FAA payload review for purposes of determining consistency with national security, foreign policy, or international obligations. The FAA would, however, keep its authority to conduct a payload review for public health and safety and the safety of property. Presumably this means the FAA’s safety oversight would be confined to the safety of a launch or reentry, and not address the safety of an orbital habitat, lunar harpist, or Martian distillery. Some clarification may be in order if that is the case.

Numbers: The bill appears to require—but for all practical purposes at best encourages—the Secretary of Commerce to require, to the maximum extent practicable, only one certification for multiple operations of a single space object, for multiple space objects that carry out substantially similar operations, and for the use of multiple space objects to carry out a single operation. Although this language leaves much to the Secretary to decide about what constitutes an operation and whether it is single or multiple, there are advantages to the bill’s encouragement. First, it encourages the Secretary to treat certifications more like a driver’s license.  I go back to the State of Maryland in seven years for my license renewal, rather than every time I plan to get in my car.  This is more efficient.  The FAA offers a similar authorization called the launch operator license. Inspection of the active license list shows that it issues both launch operator, which is like a driver’s license, and launch specific–which applies to only particular launches–licenses. (Yes, the terminology is confusing because all operators of a launch vehicle are called launch operators.) For a Secretary so inclined, certification may efficiently cover more activities than not. A disadvantage to the bill’s approach is that it leaves that determination up to the Secretary, who may have a very narrow definition as to whether another operation is substantially similar enough to come under a single certification or not. Operators would have to seek interpretations from the Secretary repeatedly so as not to run afoul of the law, an exercise which may cause delay as much as obtaining a modification to an existing certification would.

Application requirements: Interestingly, the proposed legislation spells out the application requirements, thus limiting the ability of the Secretary to engage in far-ranging fishing expeditions. Typically, legislation does not do this, which means that a regulatory agency may ask for any information that may arguably fit within its authority. Additionally, a regulatory agency might ask for highly detailed information, but the bill states that an application “shall include only the following information….” (emphasis added).

After reviewing the application, if the Secretary determines that the application satisfies the statutory requirements, the Secretary must approve the application. If the Secretary denies the application (and only the Secretary may issue a denial), the Secretary must provide the applicant in writing a clearly articulated rationale for the denial that provides the applicant guidance on how to address the issue in a subsequent application. The Secretary must also inform the Congressional oversight committee of the reason for the denial. We may hope that Congressional oversight would ensure that any denial was solidly grounded in a statutory basis.

If the Secretary does not make a determination within the deadline, the certification “shall be approved without condition.” This provides an obvious incentive for the Secretary to make a determination because failing to decide means approving. Even if the Secretary’s review is slowed by other agencies, their failure to provide a response in a timely way will not mean that the decision gets put off but that a decision is forced. This would likely provide a disincentive for consulting with other agencies in the interest of time, and it might force other agencies who do get consulted to be able to explain themselves very quickly if they have a serious issue.

Tolling:  The Secretary may not toll the review period. This is also rather clever.  Review of a similar scenario may provide context.  The FAA has a statutory limit on how long it may take to conduct a review of a launch, reentry, or site license. If the FAA’s review takes longer than 180 days, the FAA must notify the House oversight committee within 30 days. In an attempt to be nice to applicants who submit incomplete applications, which happens, the FAA instituted the practice of tolling—stopping the clock from running on the 180 days—if the FAA has to wait for additional information for the application to be complete. This is nice (and, yes, “nice” is a legal principle) because, while it saves the FAA from having to deny an application for incomplete information, it saves the applicant from being denied a license and having to start the 180-day clock all over again from the beginning.

What happened, however, was that rather than appreciating the niceness no one liked being tolled. This provision may reflect that distaste. With the statute spelling out relatively straightforward application requirements, tolling should be unnecessary.  Additionally, with the shorter review period, it looks like it will be less painful to have to re-submit an application.  The lack of tolling would force a very clear decision process on the Secretary.  If an applicant failed to provide all required information or attestations, the Secretary (without delegating to the Office of Space Commerce) would have to deny the application him or herself. This would involve the Secretary in oversight of the application review period, which could lead to inquiries as to why the applicant wasn’t told sooner that information was missing.

What is most interesting, however, is that lacking the ability to toll makes it hard for the regulator to ask follow-up questions that may exceed the information required by statute. Any request for “more” that might result in issuing a denial will reach the attention of both the Secretary and the House oversight committee. A request for “more’ that merely misses the deadline will result in approval.  This may help keep the regulator confined to its statutory mission rather than seeking to add to it.  Fishing expeditions that exceeded the agency’s statutory authority would result in the clock running out and the deadline being missed.  If the Secretary is not able to articulate a rational basis for a denial, approval would be automatic.  In short, although at any given moment an applicant might wish tolling was available, in the long run its lack should force everyone to communicate issues more quickly so they might be solved, or recognize that they are too amorphous to reduce to a clearly articulated rationale, which is what would be necessary for a lawful denial.