Planetary Protection Policy: Useful or Counterproductive?

Today’s post is not about law but policy. Alberto G. Fairén, a visiting scientist in astronomy at Cornell and a research scientist at Centro de Astrobiología in Spain, argues that planetary protection protocols should be revisited. Because reasonable scientists can disagree about their value and efficacy, Congress might want to think twice before requiring the private sector to follow current planetary protection protocols.

Planetary protection protocols. Article IX of the Outer Space Treaty provides that States Parties must pursue their studies and explorations so as to avoid “harmful contamination” of the moon and other celestial bodies and “adverse changes in the environment of the Earth resulting from the introduction of extraterrestrial matter and, where necessary, shall adopt appropriate measures for this purpose.” As a science agency that is part of the U.S. Government, NASA has applied this to its missions so that it not only avoids what the ordinary person might consider harmful contamination, but microbial contamination as well, limiting the presence of bacterial spores on any surface to no more than 300,000. Accordingly, NASA requires the sterilization of its spacecraft to avoid bringing microorganisms to Mars. ESA, the European Space Agency, follows similar measures.

Counterproductive?  Fairén explains the argument for protecting scientific interests through planetary protection:

How will we know what’s native Martian if we unintentionally seed the place with Earth organisms? A popular analogy points out that Europeans unknowingly brought smallpox to the New World, and they took home syphilis. Similarly, it is argued, our robotic explorations could contaminate Mars with terrestrial microorganisms.

As an astrobiologist who researches the environments of early Mars, I suggest these arguments are misleading. The current danger of contamination via unmanned robots is actually quite low. But contamination will become unavoidable once astronauts get there. NASA, other agencies and the private sector hope to send human missions to Mars by the 2030s.

Fairén wants the protocols assessed and updated before humans reach Mars.  He sees a window closing on the science:

Strict cleaning procedures are required on our spacecraft before they’re allowed to sample regions on Mars which could be a habitat for microorganisms, either native to Mars or brought there from Earth. These areas are labeled by the planetary protection offices as “Special Regions.”

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The sad consequence of these policies is that the multi-billion-dollar Mars spacecraft programs run by space agencies in the West have not proactively looked for life on the planet since the late 1970s.

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That’s when NASA’s Viking landers made the only attempt ever to find life on Mars (or on any planet outside Earth, for that matter). They carried out specific biological experiments looking for evidence of microbial life. Since then, that incipient biological exploration has shifted to less ambitious geological surveys that try to demonstrate only that Mars was “habitable” in the past, meaning it had conditions that could likely support life.

Even worse, if a dedicated life-seeking spacecraft ever does get to Mars, planetary protection policies will allow it to search for life everywhere on the Martian surface, except in the very places we suspect life may exist: the Special Regions. The concern is that exploration could contaminate them with terrestrial microorganisms.

Fairén focuses on two points to argue that the protocols are counterproductive:  the logical and the technical.  First, he points out that here on Earth organisms can evolve to survive in very hostile environments.  Likewise on Mars, any organisms that can survive the rigors of Mars can likely stand down any invaders from Earth.   If, on the other hand, Earth microorganisms can survive Mars, “we can then presume that terrestrial microorganisms are already there, carried by any one of the dozens of spacecraft sent from Earth in the last decades, or by the natural exchange of rocks pulled out from one planet by a meteoritic impact and transported to the other.”  In that  case, the protocols are overly cautious since contamination has already happened.

He also maintains that the protocols don’t make sense technically because we don’t actually completely sterilize the spacecraft we send to Mars.  We don’t know how.

The cleaning procedures we use on our robots rely on pretty much the same stresses prevailing on the Martian surface: oxidizing chemicals and radiation. They end up killing only those microorganisms with no chance of surviving on Mars anyway. So current cleaning protocols are essentially conducting an artificial selection experiment, with the result that we carry to Mars only the most hardy microorganisms. This should put into question the whole cleaning procedure.

Additionally, we now know how to tell the difference between Martian and Earth life:

[T]echnology has advanced enough that distinguishing between Earthlings and Martians is no longer a problem. If Martian life is biochemically similar to Earth life, we could sequence genomes of any organisms located. If they don’t match anything we know is on Earth, we can surmise it’s native to Mars.

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The microbes we know persist in clean spacecraft assembly rooms provide an excellent control with which to monitor potential contamination. Any microorganism found in a Martian sample identical or highly similar to those present in the clean rooms would very likely indicate contamination – not indigenous life on Mars.

Although Fairén makes these points to argue for exploring the special regions now, his points also apply to why Congress should ask some very serious questions before it attempts to impose planetary protection protocols on the private sector.  The first question of course, must center on whether Congress seeks to prohibit human settlement or even any human presence?  All indications are that it does not.  The second question is whether the scientific interest in ascertaining the presence of life is stronger than the interest in human settlement?   This is a particularly important question if Farién is correct that no one is looking for life in the places most likely to have it.   Why impose constraints and costs if those constraints don’t further the purported goal?  This is a policy debate we must have as a society.  Congress is the proper place to have that debate since it is the legislative body.

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FCC Requests Comment on Domestic Coverage Requirement in Further Notice of Proposed Rulemaking on Non-Geostationary, Fixed Satellite Service Systems

By notice dated November 15, 2017, the Federal Communications Commission proposes to remove its domestic coverage requirement for non-geostationary-satellite orbit (NGSO), fixed-satellite service (FSS) satellite systems.  Because the FCC tends to only publish summaries of its notices in the Federal Register, don’t forget to look here for the full text of its Further Notice of Proposed Rulemaking.

In brief, the FCC requires NGSO FSS systems to provide continuous coverage of the fifty states, Puerto Rico and the U.S. Virgin Islands, and prohibits systems with more localized coverages.  This approach has resulted in an number of waiver requests:

For example, …, one operator seeks to provide service in remote areas of Alaska as part of an ‘‘Arctic Satellite Broadband Mission.’’ Its satellite system would operate in a highly elliptical orbit chosen to maximize service to the Arctic region, but which prevents coverage of the lower United States. Another operator is currently providing low-latency satellite service to Americans at sea. The equatorial orbit of its system, however, precludes U.S. coverage at high latitudes. Such specialized systems may be authorized by foreign administrations and intended to serve only part of the United States. We do not believe it would serve the public interest to block access to these systems solely because of their specialized coverage areas, given that multiple NGSO FSS systems can share the same frequency bands. Rather, we expect that the most efficient way to encourage widespread service offerings by NGSO FSS systems, including in remote and underserved areas of the United States, would be to allow both general and specialized coverage systems.

In order to allow operators greater flexibility in their system design, the Commission proposes to remove this requirement.  It asks for comment on specific points:

[I]s it appropriate to deny access to every concerned frequency band if a system design does not allow for continuous U.S. coverage? What are the advantages of retaining, or removing, this coverage requirement? For parties that support retaining the domestic coverage requirement, are there particular considerations we should take into account when deciding whether or not to waive it in a particular case?

Don’t forget to comment even if you like the proposal.  There may be someone out there who doesn’t, and your arguments and reasons may be what tilts the balance in your favor.

Comments due:  January 2, 2018
Reply comments due: January 29, 2018

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Interplanetary Transport Licensing

Let’s say you have designed a spacecraft that will travel from Earth orbit to Mars.  Do you, a U.S. entity incorporated in one of the states of the Union, need a license from a federal agency for the activity of traveling between planets?  The proper answer is no.  Sure, other licenses will apply to related activities, but not to that one.

Being a savvy purchaser of launch services, you plan to place your spacecraft on board an expendable launch vehicle (ELV) operated by Launches ‘R Us.  LRU will first get your spacecraft off Earth.  Therefore, LRU needs a launch license from the Federal Aviation Administration.  Both of you may need communications licenses from the Federal Communications Commission to transmit back to the United States.  All space travelers want to be able to phone home.  If you or LRU have cameras capable of sensing Earth you will need remote sensing licenses from the National Oceanic and Atmospheric Administration.  You might, after all, take pictures of your home planet.

But you won’t need an interplanetary transport license because there isn’t such a thing.  Nor is there a certificate, permit, approval, authorization, or other term meaning the same thing as “authorize.”

FAA Licensing.  What about the FAA launch license, you ask.  Won’t that cover the trip to Mars?  (Being as savvy as you are, you are thinking it might be good to remain eligible for the FAA’s so-called “indemnification.”) The definitions in Chapter 509 of Title 51 of the U.S. Code (aka the Commercial Space Launch Act) show that at some point a launch ends.  The regulations by which the FAA implements the law are a little more clear.  Section 50902(7) of the statute says that “launch means to place or try to place a launch vehicle or reentry vehicle and any payload or human being from Earth–(A) in a suborbital trajectory; (B) in Earth orbit in outer space; or (C) otherwise in outer space ,….”  In other words, as far as the law is concerned, it is the placing of something somewhere that constitutes a launch.  The launch operator has placed your spacecraft “otherwise in outer space.”  Arguably, that could be Mars.  However, the FAA’s regulations recognize the subtle point and how launch only covers the placing of something somewhere, and clarify that launch ends for an expandable launch vehicle “after the licensee’s last exercise of control over its launch vehicle.” 14 CFR 401.5.  After releasing your spacecraft, the launch operator will shut down its upper stage to comply with the FAA’s debris mitigation requirements, and launch will be over.

The hypothetical posited above is easy.  Because LRU operates ELVs and not your spacecraft, LRU needs the launch license.  Not you.  Your spacecraft is a payload.  What if LRU operated a reusable launch vehicle?  Section 401.5 of the FAA’s regulations says that in that case, “launch ends after deployment of the payload.”  Again, as the payload operator you don’t need a launch license–it wasn’t your launch vehicle that got you where you are, after all–and the launch licensee, having deployed its payload, that is, your spacecraft, is now done with its launch.

I can see that you are getting kind of excited.  You think you are going to avoid all sorts of paperwork.  Still, you pause:  this is all very logical, but is it right?  (We all know that the two don’t necessarily go hand in hand.)  Now I’m getting excited, because yes, yes it is right, and I can show you where someone very authoritative said the same thing.  Let us turn to the Committee Report that accompanied Congress’s grant of reentry authority to the FAA.

Legislative History.  First, some historical context.  The FAA’s space office, back when it was still located in the Department of Transportation, started out with just the authority to license launches and the operation of launch sites.  When it tried to license a reentry of a reentry vehicle on the grounds that the vehicle was launching from space to Earth, the office received a stern letter from its Congressional overseers that the office was exceeding its authority.  Eventually, however, Congress did in the late 1990’s grant the office, now in the FAA, the responsibility for and the authority to license the reentry of reentry vehicles, namely, vehicles designed to return to Earth substantially intact.  It granted this authority with clear reminders that the FAA should not exceed it:

The original Act intended that a launch ends, as far as the launch vehicle’s payload is concerned, once the launch vehicle places the payload in Earth orbit or in the planned trajectory in outer space. The Committee wishes to make clear that the Secretary has no authority to license or regulate activities that take place between the end of the launch phase and the beginning of the reentry phase, such as maneuvers between two Earth orbits or other non-reentry operations in Earth orbit; or after the end of a launch phase in the case of missions where the payload is not a reentry vehicle.

You will note that the Committee said that once the launch operator puts the payload on its planned trajectory in outer space launch is over.  Even if your spacecraft qualified as a reentry vehicle, the transit between Earth and Mars requires no launch license from the FAA because it “has not authority to license or regulate activities that take place between” launch and reentry.  Your spacecraft is not a reentry vehicle even if it lands on Mars, because the law defines a reentry vehicle as one designed to return to Earth, and Earth is not Mars.

Outer Space Treaty.  Finally, because you really are that savvy, you ask about Article VI of the Outer Space Treaty.  It requires that the countries who signed the treaty, and that includes the United States, must authorize and continuously supervise the acts of their nationals in outer space.  You are a U.S. national.  Does this mean you can’t send your private spacecraft to Mars without an interplanetary transport license even though none exists?  No, it doesn’t.  Article VI is not self-executing, which means that Congress would have to pass a law to cover interplanetary transport.  For a longer explanation, see my Senate testimony.  Going by last year’s press release on Moon Express, the FAA may have a different view, but that’s why it would be good for the President to issue an Executive Order on this topic.

 

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FAA Amends VAFB Airspace and NASA Issues Centennial Challenge for Habitat Printers

This week’s Federal Register offered two interesting space items.

The FAA amended multiple restricted areas around Vandenberg Air Force Base, California.  Vandenberg is a launch site for orbital launches, and the FAA’s technical amendment changes the coordinates for special use airspace under 14 C.F.R. part 73.  Part 73 governs limits the operation of aircraft within restricted areas.  Restrictions are in place during a launch.  Although this constitutes a regulatory change, because it is only a technical amendment, the FAA is not offering a comment period.

maritime limits change over time. The FAA has received updated digital data for maritime limits from NOAA. Digital data is more precise than measurements used in the past. The FAA, through the implementation of its data-driven charting process, was able to utilize this new data to accurately update the U.S. maritime limit boundaries used for aeronautical charting. Prior to the update, the maritime limit boundary data used for charting were over 25 years old. In applying the updated data, FAA found that some restricted area boundary descriptions, that were based on the maritime limits, did not correspond to the updated shoreline data. Consequently, there are minor mismatches between some restricted area latitude/longitude coordinates and the actual shoreline position. This rulemaking action updates the affected boundary coordinates of restricted areas R–2516, R–2517, R–2534A and R–2534B, in California to maintain the intended shape of the airspace in relation to the U.S. shoreline and to improve their representations on aeronautical charts.

Effective date: 0901 UTC, February 1, 2018.

 

Meanwhile, NASA announced a new Centennial Challenge competition for printing a habitat:

The 3D-Printed Habitat (3DPH) Challenge Phase 3 On-Site Habitat Competition is open, and teams that wish to compete may now register. Centennial Challenges is a program of prize competitions to stimulate innovation in technologies of interest and value to NASA and the nation. The 3DPH Challenge Phase 3 On-Site Habitat Competition is a prize competition with a $2,000,000 total prize purse to develop and demonstrate capabilities to autonomously manufacture through 3D-printing technologies a habitat on another planetary body using mission recycled materials and/or local indigenous materials. The Phase 3 competition consists of 5 levels. This technology demonstration competition has great potential value for terrestrial applications.

 

Registration Date:  Registration ends February 15, 2018.  See the notice for more dates of significance.

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Space Policy Proposal for the Trump Administration – Part 2 (Letters of Marque)

When I prepared last week’s post on CNAS’s proposed  Space Policy for the Trump Administration, I did not plan a two part series.  However, last week’s post got long, and, more importantly, the writers had proposed using letters of marque, which are semi-piratical and kind of glorious.  So that pretty much mandated a second post, because space pirates.  (Not really space pirates, of course, because letters of marque make otherwise questionable activities ok.)

Letters of Marque.  The authors raised the possibility of the government enlisting the private sector to clean up space debris.

Much in the same way as Congress used letters of marque to allow private maritime vessels to act as military tools of the state—with the promise of payment and profit for their efforts—the government could entice private space ventures to participate in a public mission: cleaning up space debris, acting as situational awareness networks, and servicing nearby satellites, among many other tasks.

This is charming, and presumably letters of marque are not the same as government contracting.  Although the authors may have raised letters of marque purely for historical context, the somewhat hostile implications of these instruments spark questions for debris removal. The U.S. Constitution, Art. I, Sec. 8, cl. 11, states that the Congress shall have the power to “Declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water.”  According to scholars,

At the time of the Founding, the sovereign authorized holders of letters of marque and reprisal to engage in hostile actions against enemies of the state. The common understanding of “Reprisal” is a seizure of property (or sometimes persons) of a foreign state for redressing an injury committed by that state.

If the authors do indeed recommend the use of letters of marque, it could mean they recommend the removal of orbital debris with or without the debris owner’s permission, up to and including the debris of foreign nation states.  Would it be better if that’s not what they mean?

Regardless of whether the government issued letters of marque or merely entered into contracts with the private sector, would the proposal run afoul of Article VIII of the Outer Space Treaty?  Article VIII says that ownership of an object is not changed by it being in space.  This suggests that a space object cannot be considered abandoned.   Just to make it really hard to hold a civic clean-up day, that same provision says that “[s]uch objects or component parts found beyond the limits of the State Party to the Treaty on whose registry they are carried shall be returned to that State Party, which shall, upon request, furnish identifying data prior to their return.”  I’ve heard lots of of people say that one may not salvage in space due to the requirement that objects be returned to the state of registry. Are they right?  One would need to check before issuing letters of marque or even taking the more plebeian route available through the Federal Acquisition Regulations.

Could, however, the maritime analog apply here?  After all, you can own something terrestrially but abandon it or otherwise sit on your rights.  Article VIII says that “ownership of objects…is not affected by their presence in outer space.”  Arguably, if ownership is not affected by being in space, all the usual rules of ownership, including principles of abandonment, might not be affected either.  There is however, the owners’ pesky anticipation of getting their stuff back if someone else gets a hold of it.  Nonetheless, this perspective creates interesting possibilities.

Finally, for anyone sailing the stellar seas under a letter of marque, it might be good to know where liability lies before starting to scavenge in orbit.  Personally, I’d go look at state laws regarding tow truck operations.

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Opportunity to Comment on Repeal of or Changes to Space Rules Extended

By notice dated November 3 in the Federal Register, the Department of Transportation announced that it is reopening the comment period for its Regulatory Review.  This notice applies to, among other regulatory regimes, the commercial space regulations of 14 C.F.R. Ch. III.  Commenters must file by December 1, 2017.

The original notice explained that DOT needed to know about regulations that would be appropriate for suspension, repeal, replacement, or modification.  It asked the public to consider whether any of its regulations provided the opportunity to, in relevant part:

(4) eliminate conflicts and inconsistencies with the rules of other Federal agencies or state, local, or tribal governments, … (6) revise regulations in which technology, economic conditions or other factors have changed in the area affected by the regulation; (7) reconsider regulations that were based on scientific or other information that has been discredited or superseded; (8) reconsider the burdens imposed on those directly or indirectly affected by the regulation and, specifically, those that are costly when compared to the benefit provided; (9) reconsider burdens imposed on small entities; (10) foster innovation by revising regulations to include performance standards for regulatory compliance; and (11) reduce burdens by incorporating international or industry consensus standards into regulations.

Additionally, DOT provides guidance on how to make any comments submitted more useful:

1. Specific reference. A specific reference to the policy statement, guidance document, regulation, or other agency action that imposes the burden that the comment discusses. This should be a citation to the Code of Federal Regulations, a guidance document number, or an Internet link. A specific reference will assist the Department in identifying the requirement, the original source of the requirement, and relevant documentation that may describe the history and effects of the requirement.
2. Description of burden. A description of the burden that the identified policy statement, guidance document, regulation, or other agency action imposes. A comment that describes how the policy statement, guidance document, regulation, or other agency action is burdensome is more useful than a comment that merely asserts that it is burdensome. Comments that reflect experience with the requirement and provide data describing that experience are more credible than comments that are not tied to direct experience. Verifiable, quantifiable data describing burdens are more useful than anecdotal descriptions.
3. Description of less burdensome alternatives. If the commenter believes that the objective that motivated the policy statement, guidance document, regulation, or other agency action may be achieved using a less burdensome alternative, the commenter should describe that alternative in detail. Likewise, if the commenter believes that there is not a less burdensome alternative or there is not a legitimate objective motivating the requirement, then that should be explained in the comment.

Comments due by:  December 1, 2017

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Space Policy Proposal for the Trump Administration – Part 1

Dr. Jerry Hendrix and Adam Routh of the Center for a New American Security (CNAS) recently published  A Space Policy for the Trump Administration.  For those interested in what the authors have to say about civil and national security space, please follow the link.  This analysis  focuses on interpretations of the Outer Space Treaty that could aid space commercialization.

Outer Space Treaties.  In what is music to my own ears, the authors advocate:

significant changes in the nation’s interpretation and enforcement of international laws that apply to space activities [and] expansion and freeing of the commercial space sector to fully harness the resources and wealth of space, … .

Specifically, the authors propose that the administration provide clarifying guidance on the space treaties:

Ambiguity in the 1967 Outer Space Treaty is both a benefit and a curse: although allowing countries to interpret the requirements and restrictions may provide a certain level of freedom, the treaty also contains internal conflicts that provide grounds for possible future conflict with regard to resource development. The Trump administration needs to provide a clear strategy for U.S. space policy efforts and assert a broader interpretation of the 1967 Outer Space Treaty. Because crafting a new international space agreement would be time-consuming and difficult, the best strategy is to provide clarifying guidance with regard to interpreting the current treaty for both domestic and international space actors.

The authors recommend proposing legislation to authorize and supervise space activities, but I did not find in the proposal the “significant changes in interpretation that the authors earlier advocated.  My own view is that the administration could reduce regulatory uncertainty regarding Article VI’s requirement that each country authorize and continuously supervise the acts of its national in outer space. A simple Executive Order might suffice to rein in those regulatory agencies that believe they can and should deny access to space on the basis of a non-self-executing treaty provision such as Article VI.

The authors quote my testimony regarding Article VI, specifically that “Article VI leaves it to each country to decide which particular activities require regulation, how that regulation will be carried out, and with how much supervision.” What I hope they understand is that one of the points I was making was that not all activities require authorization and supervision.  From a standpoint of national interest, it would be reasonable for the U.S. to decide that only those activities which would, as the first portion of Article VI says, require the United States to “bear international responsibility” serve as candidates for regulation.  This suggests that the United States should authorize and supervise private activities that might expose the country to liability claims, namely, dangerous activities for which regulation would provide some added value.  Thus, the manufacture of cigarettes in orbit might require regulation, whereas robotic mining in the asteroid belt might not.  Other space activities do not, under current law, require authorization.

The authors recommend a light regulatory touch.   One important point to remember is that no regulatory touch stays light forever.  When it passed the Federal Aviation Act, Congress directed the FAA to impose minimum standards in the interest of safety.  Hardly a day goes by now that the FAA does not issue new airworthiness directives.  Similarly, back when the Departments of Commerce and Transportation were each vying to be the agency that regulated commercial space transportation, the decision was made, according to Norman Bowles’ description of events, on the basis of an agreement that the Office of Commercial Space Transportation not be placed in the FAA.  Guess where it is now?  (Personally, I think the FAA is as good a place as any to house commercial space transporation, but I raise the matter to show that unwritten understandings and intentions don’t always survive changes of personnel.)

Accordingly, Article VI is one treaty provision that would benefit from the authors’ recommendation that “the best strategy is to provide clarifying guidance with regard to interpreting the current treaty.”  Rather than calling for the passage of more legislation mandating regulation—however “light”—the President could issue an executive order clarifying that Article VI does not provide regulatory agencies such as the Federal Aviation Administration grounds for denying access to space.

Property Rights.  Property rights provide another opportunity for interpreting the Outer Space Treaty in a manner conducive to private investment and enterprise.  Article II of the treaty says:

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.

Article II’s bar applies to national appropriation, not private appropriation.  Given that Article II itself applies to national appropriation it, on its face, does not implicate private appropriation. To the extent that Article VI calls for countries to ensure their nationals’ conformity with the treaty, a less burdensome interpretation of Article II’s national appropriation ban would be that Article II did not intend private actors to serve as a conduit for national appropriation. Accordingly, state owned enterprises would not be able to appropriate outer space, but purely private entities could.  The President could make clear by Executive Order that this is the U.S. interpretation, thus reducing uncertainty for investors and the rest of the private sector.

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Commercial Space in Draft DOT Strategic Plan. Opportunity for Comment.

By Federal Register notice, the Department of Transportation released for public comment a draft of its Strategic Plan for FY 2018-2022.  Comments are due November 13, 2017.  Although the draft focuses on trains, planes, drones, and automobiles, it also touches upon commercial space transportation, and some of its more general points have implications for commercial space.

Safety.  The plan mentions commercial space transportation as an example of a mode of transportation that poses new and poorly understood hazards:

Regulatory agencies must reimagine existing regulations and develop flexible regulations that do not create unnecessary barriers while promoting safe and efficient deployment of private transportation service.  For instance, unmanned aircraft systems and commercial space flights pose new and poorly understood hazards into the national air space, requiring more collaborative, data informed and risk-based safety management approach to emerging safety risks. Public agencies need to find avenues for collaboration that benefit both parties, … .

The concern over commercial space flight could arise out of two points.  As it was decades ago, commercial space flight is still new, and the technologies range from pointy-end-up expendable launch vehicles to rockets launched from carrier aircraft to reentry capsules.  This makes more difficult to implement the typical approach of standardizing a regulatory response. The second is the lack of data.  Although the space sector has a good understanding of the hazards, the flight rate for launch and reentry offers nothing close to the kind of data available to DOT for aviation and automobiles.

International: On the international front we see that “The DOT will promote exports by providing technical assistance to encourage international adoption of U.S. transportation standards and regulations.”  The FAA’s Office of Commercial Space Transportation has been engaged in similar efforts for years, and it’s good to see official support for that endeavor.

Regulation:  On the regulatory front, the plan states that DOT will implement the President’s executive orders on regulatory reform. Additionally, “DOT will also identify opportunities to facilitate, improve, and expedite the exemption and special permit processes to support deployment of innovative technologies and practices.”  This could bode well for aircraft operators who wish to receive exemptions from aviation regulations in order to participate in commercial space activities.

Environmental reviews.  Although the following sets out a plan to improve the environmental review process for infrastructure grants, the National Environmental Policy Act (NEPA) also applies to other major federal actions.  Major federal actions include the licensing of launches, reentries, and the operation of launch and reentry sites.  The proposed streamlining could aid commercial space environmental reviews:

The environmental review and permitting process in the United States is fragmented, inefficient, and unpredictable. Existing statutes have important and laudable objectives, but the lack of cohesiveness in their execution make the delivery of infrastructure projects more costly, unpredictable, and time-consuming, all while adding little environmental protection. The median time to complete an environmental impact statement (EIS) is approximately four years or more. The full environmental review process on complex projects can exceed 10 years. More efficient and effective Federal infrastructure decisions can transform our economy, so the Federal Government, as a whole, must change the way it processes environmental reviews and authorization decisions. DOT will be a leader in implementing Executive Order 13807 and other White House directives on speeding the permitting process, meeting a two-year deadline for Federal infrastructure projects.

Operators might consider filing comments to highlight the need for streamlining the NEPA review in the licensing context, too.

Comments due:  November 13, 2017.

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Space Law, Separation of Powers, and Henry VIII

I don’t know a lot about UK law.  That won’t stop me from talking about it, of course, especially when it looks like the same problems visit space law on both sides of the pond, namely, questions regarding separations of powers.  In the United States we see very broadly drafted legislation in which our legislative body, the Congress, tells the agencies of the Executive Branch to license and regulate consistent with “national security” or “foreign policy” interests.  This direction cedes much legislative power to the regulatory agencies in the Executive Branch, and no one should claim surprise when its employees construe that delegation as a mandate to go farther in the exercise of their powers than Congress might have intended.

Apparently, other countries have the same problem.  In the linked story Professor Mark Elliott at Public Law for Everyone takes issue with a proposed Space Industry Bill.  The Space Industry Bill makes ‘provision about space activities and sub-orbital activities, and for connected purposes’.  Elliott considers it inappropriately broad in the powers it delegates to the Executive:

the Bill serves as nothing less than a case study in a variety of drafting techniques that are becoming increasingly common and which, individually and collectively, give rise to separation of powers concerns. It was partly for this reason that the House of Lords Constitution Committee published a report on the Bill in early September, albeit that that report did not attract quite as much attention as its latest intervention, published the previous day, in relation to the EU (Withdrawal) Bill.  There is, however, a connection between the two Bills. While the Withdrawal Bill is, without question, a uniquely egregious example of the executive seeking inappropriately broad and insufficiently controlled powers from Parliament, the Space Industry Bill serves as a more mundane example of the way in which the accretion of administrative law-making authority is becoming commonplace.

Elliott raises six concerns, one of which resembles a concern we face on this side of the Atlantic, too:  that the bill does not limit the executive’s rulemaking power.

Clause 67(1) provides that: ‘Regulations may make provision generally for carrying this Act into effect and for achieving the purpose set out in [clause] 1(1).’ And clause (1) says that the Bill has effect for the purpose of regulating space activities, sub-orbital activities, and associated activities carried out in the UK. The purpose of the Bill is thus set out in very broad terms indeed, rendering the clause 67(1) power commensurately wide. Among other things, the existence of such a power will make it relatively difficult to seek judicial review on the ground that the scope of individual powers conferred by the Bill have been exceeded. Indeed, the catch-all power in effect undercuts those limits, given that when they inconveniently apply so as to narrow specific powers in the Bill, the general power may instead be available.

Another complaint centers on the paucity of something called the affirmative procedure, where rulemaking may require the approval of both Houses of Parliament to go into effect:

while some of the regulation-making powers in the Bill are subject to the affirmative procedure, in a number of cases that procedure is required only upon the first use of the powers, subsequent uses being subject only to annulment — and so, in practice, to minimal-to-non-existent parliamentary control.

Elliott raises the concern that the executive could make regulatory changes without legislative review. The legislative review of the affirmative procedure sounds like the Congressional Review Act in the United States, although that provides for streamlining of a review process whereas the UK approach may be more fundamental.

Finally, we get to the Henry VIII power. According to the UK’s Parliament website it is quite as alarming as it sounds:

The Government sometimes adds this provision to a Bill to enable the Government to repeal or amend it after it has become an Act of Parliament. The provision enables primary legislation to be amended or repealed by subordinate legislation with or without further parliamentary scrutiny.

Such provisions are known as Henry VIII clauses, so named from the Statute of Proclamations 1539 which gave King Henry VIII power to legislate by proclamation.

How would it operate in the proposed Space Industry Bill?

the Bill provides that: ‘The Secretary of State may by regulations make provision that is consequential on any provision made by this Act.’ This broad power is a Henry VIII power because, according to clause 66(3), it can be used to ‘amend, repeal or revoke any enactment passed or made before this Act or in the same Session’. The use of Henry VIII powers normally is — and normally should — be subject to the affirmative procedure. However, this Henry VIII power is subject to that procedure only in part: it applies when regulations ‘amend’ primary legislation, but the annulment procedure applies otherwise — including, presumably, when primary legislation is repealed by regulations. It may be that ‘amend’ here is supposed to include ‘repeal’, but that seems unlikely, given that ‘amend’ and ‘repeal’ are specified separately in clause 66(3).

The professor concludes with some hope:

The fact that large volumes of delegated legislation are (deemed to be) necessary does not inevitably mean that constitutional principle [of separation of powers] must be sacrificed to the extent that it currently is. Indeed, our system, at present, is set up very poorly when it comes to the making of delegated legislation. Such legislation cannot normally be amended, meaning that it must be approved unless the nuclear option of outright rejection is to be taken; the House of Lords is subject to the threat of having its powers stripped away should it ultimately refuse to knuckle under; and Parliament in general lacks the capacity to exercise its own discretion so as to divert secondary legislation that is more than merely technical into elevated scrutiny processes.

(I think that the UK’s “delegated legislation” is somewhat akin to regulations issued by the Executive Branch in the United States.  Or, this may be another of those instances where, as Churchill or Shaw said, Great Britain and the United States are two countries separated by a common language.)

If I am reading this correctly, the UK’s proposed Space Industry Bill should receive careful scrutiny before it serves as a model for any U.S. legislation.

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New Title: Far Flung

I have a new science fiction addition to the Book Tab:  Far Flung.  Although this novelette has been out for about a year, and contains no  space law per se, it does have maritime law, a certain amount of bureaucracy, and pirates.  Also, it’s chronologically the first title in my Ground Based universe for those who care about such things.  It comes before Manx Prize, a novel about orbital debris.  All of this allows me to rationalize mentioning it on my space law and policy blog.

Description:  In the very near future a seastead offers consumers a choice in governing systems. Navy Captain Adam Tenney’s daughter takes that offer, but what can he do for her when pirates threaten the seastead, the U.S. refuses to recognize it, and a desk job traps him on land?

Check it out!

About the Book Tab:  I like space law.  I like science fiction.  Except for my own Waking Late books, which are purest space opera, the books and stories in the Book Tab have some aspect of space law.  If someone who is not me wrote one of those books, you will find I have discussed its space law issues somewhere on my blog.

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