Comments to the FAA on an Enhanced Payload Review

I submitted the following comments to the FAA on Monday, September 12, 2016. The FAA wanted to know whether the public had any concerns it should pass along to the members of its advisory committee regarding Representative Bridenstine’s (R-Okla.) proposal to enhanced the FAA’s oversight of payloads on launches and reentries licensed by the FAA.

I am providing the comments here because I will be discussing each of the issues in greater detail over the coming months, and this serves as a general introduction to the issues.


I am writing in response to the FAA’s notice of August 24, 2016, requesting comments on a legislative initiative for an enhanced FAA payload review. The following comments address why such a change is not necessary, and also make more specific recommendations. First, it is not legally correct that Article VI of the Outer Space Treaty of 1967 presents a barrier to commercial activity, notwithstanding views to the contrary. Second, the proposal to use the FAA’s payload review lacks the specificity necessary for adequate notice to the regulated community and appears to address far too broad an array of possible activity. This raises both due process concerns and may constitute too broad a delegation of Congress’s legislative authority to the executive branch. Third, this initiative provides an opportunity to clarify what treaty provisions apply to the commercial sector so as to avoid unintended and costly burdens. Finally, the draft raises a question as to whether it would supplement or supplant the requirements of the Administrative Procedure Act.

Article VI is not a barrier to U.S. commercial activity

Article VI of the Outer Space Treaty of 1967 states, in relevant part:

States Parties to the Treaty shall bear international responsibility for national activities in outer space, including the moon and other celestial bodies, whether such activities are carried on by governmental agencies or by non-governmental entities, and for assuring that national activities are carried out in conformity with the provisions set forth in the present Treaty. The activities of non-governmental entities in outer space, including the moon and other celestial bodies, shall require authorization and continuing supervision by the appropriate State Party to the Treaty.

One interpretation of this provision maintains that the United States must enact legislation to cover the activities of commercial actors in outer space. This interpretation is neither necessary nor correct.

Commercial operators should be able to operate in outer space now without any change in U.S. domestic law. Article VI of the Outer Space Treaty does not require the U.S. Government to authorize or supervise any particular activity. Nor does Article VI require the U.S. Government to authorize or supervise all activities. Instead, Article VI is not self-executing under the Supreme Court’s criteria. This means, as the Court stated in the 2014 case US v. Bond, treaty provisions such as Article VI create obligations only for the States Parties and do not by themselves, give rise to domestically enforceable law. Not being self-executing, Article VI creates no barrier to commercial activity under the law. The FAA should be able to grant positive payload determinations under existing statutory criteria without regard to Article VI.

Lack of Notice and Overly Broad Legislative Delegation

The proposed enhanced payload review fails to provide commercial actors adequate notice as to what activity must obtain authorization, and thus raises due process concerns and non-delegation concerns. The current and enhanced payload reviews shift the decision making expected of the legislative branch to the executive branch.  This means that industry would still be unclear what object or activity required federal authorization and oversight.

Notice: In criminal and First amendment cases, the Supreme Court has noted that regulatory laws must give fair notice of conduct that is forbidden or required. Here, the payload review is somewhat ambiguous. On the one hand, it could be read to mean that the FAA may stop a launch or reentry if the payload’s launch or reentry (that is, its flight) would jeopardize the statutory areas of concern. On the other hand, a broader interpretation of the payload review could all the FAA to assess the payload’s eventual operation. If the second interpretation were to apply, the payload operator would not know which activities required approval. Many benign activities take place without government authorization or oversight.

If a person planned to deploy an electric toothbrush, would the operator have to declare its use to the FAA? If a person chose to play a harp on the Moon for personal enjoyment would the harpist require federal oversight? An operator’s failure to mention a host of benign activities to the FAA could result in non-compliance if the second interpretation prevailed. As the Supreme Court has said, persons of common intelligence should not have to guess as to what activities require approval.

Legislative Delegation: This lack of clarity should not be remedied by turning over the question of what requires regulation to the executive branch. The Constitution charges Congress with making the legislative determinations regarding what requires federal oversight. It should not be the case that everything anyone does in outer space requires federal scrutiny. Even on its own terms Article VI leaves to the signatory states the decisions as to what must be authorized or overseen and how often something must be overseen.  Transferring those questions to the executive branch raises Constitutional non-delegation concerns given how vast the scope of regulatory oversight would be.

Applicability of Treaty Provisions

An area where Congressional clarity could help would be to address the question of what treaty provisions apply to commercial actors. There is confusion on this front, and the draft bill leaves the issue unaddressed. For example, Article IX of the Outer Space Treaty provides that States Parties must pursue their studies and explorations so as to avoid “harmful contamination.” On its face, this admonition does not apply to anyone but the States Parties. Nonetheless, the Article VI proviso that States Parties must “assur[e] that national activities are carried out in conformity with the provisions set forth in the present Treaty” has led to a belief that all provisions of the treaties apply to commercial actors, even when the provisions only state that they apply to States Parties.

This belief ignores the better interpretation, which is that when the drafters of the Treaty intended a particular provision to apply to non-governmental entities they said so.  For example, in contrast to the harmful contamination provision, Article IX contains a provision that does apply to non-governmental entities, namely, the requirement for a State Party to consult if “it or its nationals” might interfere with others in outer space. This language shows that when they meant a provision to apply to non-governmental entities, the drafters of the Treaty were able to say so. Accordingly, both the current and the proposed enhanced payload reviews requirement of general adherence to international obligations leave a very important question unaddressed, with the result that industry may experience costs Congress never intended it to bear.

Administrative Procedure Act

Under current law a payload operator is entitled to a hearing on the record if the FAA issues a negative payload determination.  Do we know the intent of the requirement for the Secretary to issue a rationale separate from what the Administrative Procedure Act already requires?  Does it supplement the due process protections currently available or supplant them?  To avoid confusion, this should be clarified.

Thank you for the opportunity to comment for the COMSTAC.