Sometimes when you start a new project or line of inquiry it’s helpful to knock out the deadwood first. Then you can work on the bits that will get you somewhere. I want to understand private property rights in outer space, and lots of people say the Outer Space Treaty forbids a private person’s rights in “real property,” namely, land. Article II of the Outer Space Treaty isn’t deadwood. It forbids national appropriation in outer space. Article IX, however, might be. I want to address it first because I have heard theories floated about how it may protect some property interests.
In law school we learned that property rights were a collection of rights, which one could separate and parcel out. My property professor called them a bundle of sticks. You could have a lifetime interest in a bit of land but no ability to sell it. That’s not the whole bundle, but it’s not nothing. You could lease someone’s land for a year, but then have to leave it. (That’s more of a twig.) Both the lease and the lifetime interest constitute limited property rights. My question then is: does Article IX afford some form of property right, not all of them, necessarily, but some?
It’s always nice, when practicing law, to read what the words say, since they are the best expression of what someone meant. When you’re writing a law or regulation, you’re supposed to say what you mean and mean what you say, so we’ll figure that applies to treaties, too. Given the Supreme Court’s propensity for treating treaties like contracts, this is likely a sound approach. So, what does Article IX say? Continue reading →
This is interesting. The link is to a Federal Register notice where NASA gives notice of its intent to grant an exclusive license for an invention for a multi-Gb/s laser communications terminal for mini-spacecraft. The notice provides interested persons 15 days to object:
The prospective exclusive license may be granted unless, within fifteen (15) days from the date of this published notice, NASA receives written objections including evidence and argument that establish that the grant of the license would not be consistent with the requirements regarding the licensing of federally owned inventions as set forth in the Bayh-Dole Act and implementing regulations. Competing applications completed and received by NASA within fifteen (15) days of the date of this published notice will also be treated as objections to the grant of the contemplated exclusive license.
There are a couple of interesting points. The first is that NASA says it won’t make any objections public, and that “to the extent permitted by law,” it won’t release the objections under the Freedom of Information Act. Potential objectors should bear in mind that FOIA is a federal statute, and that any grounds for withholding an objection from public disclosure would have to fall within one of FOIA’s enumerated exemptions.
The second interesting point is more frivolous and may be mostly interesting to me. When I wrote my bourgeois, legal science fiction novel, The Sky Suspended, the plot turned on a patent and the federal licensing of an interstellar star drive created by one company but licensed to its competitor. I based the novel’s plot on this statute, specifically paragraph (f) of 42 U.S.C. 2457, but the NASA notice is grounded in this one, 35 U.S.C. 207. Readers of the novel might point out that I clearly didn’t know about this objection process. They would be right, but I would explain that the book is alternate future history, somewhat like Michael Flynn’s books.
Anyway, anyone who wants to object to the exclusive license or file his or her own application has 15 days in which to do so.
UPDATE on May 8: Here’ssomething similar from the Department of the Navy, offering to license assigned patents.
Performance standards are the new* “in” thing in the regulatory world. Everyone wants them. Everyone notes how they offer greater flexibility, greater opportunity for innovation, and greater speed in adopting new designs. Everyone wonders why they didn’t do them sooner. When considering them, however, rule writers should keep in mind that the regulated people need to have some certainty as to what an acceptable demonstration of compliance might be.
What are these great things? In the regulatory world, performance standards are requirements that mandate satisfaction of a goal instead of requiring a specific design as the solution to a problem. Rather than saying that your time machine must carry six ounces of dilithium crystals for every fifty pounds of weight, the performance-based regulation says “Each time machine must possess sufficient power to return all occupants to the present.” The first version of the requirement envisions only one way of getting everyone back to the positive now, only one ratio, and only one acceptable power source for achieving that goal. The second approach focuses on the underlying goal, and allows any power source, any method, and any ratio so long as it works. Returning time travelers to the present has to work, because you can’t walk into today from yesterday but one second at a time, and if the time machine dumps you 24 hours earlier than now, you’ll stay there, possibly run into yourself, and create a temporal vortex in the time/space continuum. No one wants that.
The mandatory design solution is not without its admirers. It’s very easy to administer: if the time machine weighs 100 pounds, it better have 12 ounces of dilithium crystals powering it. No one need perform any additional analysis. It provides certainty. It’s what the guy who invented the time machine used, and he always brought everyone back, except for the time that wasn’t his fault. Lastly, the mandatory design solution forces manufacturers to ask for waivers and exemptions, so the Time Stream Administration can look at any deviations individually.
Nonetheless, there is a growing consensus that good government requires performance based standards for purposes of transparency, encouraging innovation, and avoiding unnecessary costs. These are all virtues.
However, when it adopts performance based requirements, an agency should not lose sight of making all its requirements transparent. There is one last requirement at issue, and it plays an important role in the whole process, namely, the demonstration of compliance. At one end of the spectrum, we can be pretty sure the TSA won’t be satisfied with an applicant’s bald statement that his machine has enough power to bring everyone back. At the very least, the agency will want to know the proposed power source and how it works. What more would the agency want? A computer model or actual real-time testing? How many hours of testing or how many successful journeys would qualify a time machine using chewing gum as its power source? Should an agency mandate reliability and confidence levels? Should it put that out as guidance rather than a regulation? If it does, will it wind up treating similar applicants differently?
Agencies don’t always put their demonstrations in their regulations. One of the prettier performance standards I’ve seen is for human space flight. In 14 C.F.R. § 460.5(b), the FAA requires that “[e]ach member of a flight crew [aboard a licensed or permitted launch or reentry] must demonstrate an ability to withstand the stresses of space flight, which may include high acceleration or deceleration, microgravity, and vibration, in sufficient condition to safely carry out his or her duties so that the vehicle will not harm the public.” “In sufficient condition” to carry out one’s duties shows that a commercial flight crew member need not be a superhuman astronaut. One might only need to retain sufficient consciousness to work the controls . That the flight “may” include high acceleration suggests that all flights might not include that particular stress of space flight. If a capsule gets to space via a balloon, the operator might not need to demonstrate to the FAA that the crew member can withstand high acceleration. The requirement, in other words, is tailorable to the technology, and an applicant need only demonstrate that the crew can withstand the stresses of his particular vehicle.
However, what the regulation does not say is what a successful demonstration of compliance looks like. Does the flight crew have to undergo the anticipated stresses? How many times? To what level of reliability? Nine times out of ten? 99 times out of 100? The answers to these questions may reveal hidden costs of the regulation. While each applicant gets to make his case for his vehicle, operators of similar vehicles should be treated similarly. One crew member should not be required to undergo hours of high acceleration while another one is subjected to only minutes.
Consistency and fairness suggest that these unwritten “requirements” be made public. If the FAA finds one method of demonstrating compliance acceptable for certain circumstances, it could let everyone else know by publishing that method in an advisory circular. (The Administrative Procedure Act also requires the publication of an agency’s opinions.) Then, other operators with a similar flight profile would know that they could follow that method without long talks with the agency. Alternatively, that same operator might have something less costly in mind and could go to the FAA and makes it case for using a different demonstration. That demonstration could also be shared. Publication, of course, carries concerns regarding proprietary information, but those can be worked out.
None of this is to suggest that performance standards aren’t awesome. They are, but no one should lose sight of the question of how much advance notice is necessary regarding the demonstrations of compliance.
*”New” is a relative term. In the regulatory world, “new” can span a couple decades.
I will be on The Space Show tonight at 5:00 p.m. EDT to discuss commercial space regulation and Article VI of the Outer Space Treaty with host Dr. David Livingstone. You can listen at www.TheSpaceShow.com. I’m looking forward to this.
Update (the next day): Well, that was a lot of fun! The shows get archived and podcast, so if you want the link to last night’s show, go here: http://www.thespaceshow.com/show/20-mar-2017/broadcast-2886-laura-montgomery
How we write things matters. How we write regulations really matters because regulations can influence design and make people spend money. One small but important area of regulations is the definitions. If you are going to regulate something, you need to define and identify what you are regulating. That’s all you need to do. After you’ve defined the object, you can impose any design requirements or operational restrictions in a different paragraph, a different section, somewhere else, just not in the definitions.
This is a nice, clean approach that avoids legal problems, brain-breaking confusion, and just plain stalling out when it’s time to administer the regulations. Waivers and exemptions illustrate this point nicely. Let’s say someone asks you for a waiver from a requirement. If you’ve loaded the requirements into what should only be a description, how do you waive a definition? You don’t.
In order to avoid pointing fingers, I will indulge my fondness for science fiction to illustrate the concern. Let’s say that someone has invented a time machine. As a well-informed TSA (Time Stream Administration) regulator you know that sending people back in time more than a year wreaks havoc with the space-time continuum, creates alternate timelines in which the internet is not invented and you might have to live there, and sends vast waves of energy pulsing out from the sun to engulf your home planet in radiation. So, that’s all bad. You don’t want to approve a time machine that travels back more than ten months because you like margin. How do you go about it?
The right way would be to define a time machine with enough precision and clarity that the time machine operators know you are talking about their machine, but not so much that machines that don’t fit the definition but still accomplish time travel are left out. Thus, you can say something like “a ‘time machine’ means a machine that travels forwards or backwards in time.” This definition may require some tweaking, but it will do for now. Then, over in a different section of the regulations you can say something like “No person may operate a time machine to travel farther back in time more than ten months.” (I know, I know: what if she takes it back 8 months and then another 8 months? This post isn’t about that. But if you want to write a guest post…..?). This very hygienic approach avoids all sorts of problems.
Sometimes, however, regulators focus on the ultimate approval, and if you do that, you might not want to give your approval to a time machine that will take people back to visit London in the 18th century where they’ll win the Longitude Prize years early, and then, somehow, the internet won’t get invented. If that is your sole focus you might be tempted to define a time machine as “a machine that travels backward in time by ten months and forward in time.” (Traveling to the future does not bring about the heat death of our home planet. Everyone knows that.) Please resist this temptation. Later when someone invents a time machine that doesn’t do all the bad things you addressed in the preamble to your notice of proposed rulemaking, you might legitimately want to waive the ten-month prohibition. Now you can’t, because it’s not a prohibition. It’s part of the description of what a time machine is. Also, all those other requirements and prohibitions that you put into the right place in the regulations won’t apply to time machines not meeting your definition. This will matter if you want to approve something that’s perfectly safe without going through a whole new rulemaking.
What follows is my written testimony to the House Space Subcommittee on the role the Outer Space Treaty plays in the regulatory responsibilities of the United States. It’s long, and much of it will be familiar to regular Ground Based readers, but there are some new thoughts regarding paths forward, and it puts together what I have covered here over the past months.
Testimony of Laura Montgomery
Before the Committee on Science, Space, and Technology
Subcommittee on Space
Regulating Space: Innovation, Liberty, and International Obligations
March 8, 2017, Rayburn Building
Chairman Babin, Ranking Member Bera, and Members of the Subcommittee, thank you for inviting me to participate in this important discussion and to address the role Article VI of the Outer Space Treaty plays in the regulatory responsibilities of the United States. As someone who hopes to see people beyond Low Earth Orbit again in my lifetime, and who hopes to see commercial space operations other than launches, reentries, and communications satellites, I respectfully recommend that the United States not regulate new commercial space activities such as lunar habitats, mining, satellite servicing, or lunar beer brewing for the wrong reason: the belief that Article VI makes the United States regulate either any particular activity or all activities of U.S. citizens in outer space. Regulations already cost American industry, the economy, and the ultimate consumer upwards of four trillion dollars, according to recent research from the Mercatus Center, so we should think carefully before creating more drag on the space sector.
A misunderstanding of the Outer Space Treaty looms as possible regulatory drag, because many claim Article VI of the treaty prohibits operations in outer space unless the government authorizes and supervises—which I’ll refer to as “oversees” or “regulates”—those activities. Although Article VI states that “[t]he 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,” to interpret this as forbidding unauthorized, private space activity is wrong for three reasons. The treaty does not forbid private operators from operating in outer space. It does not say that either all or any particular activity must be authorized. And, finally, Article VI is not, under U.S. law, self-executing, which means that it does not create an obligation on the private sector unless Congress says it does.
In order to put to bed the regulatory uncertainty arising out of these misunderstandings, Congress could take a number of different approaches. The most certain and long-lasting approach, however, and the one that would reduce the opportunities for confusion, misunderstanding, and regulatory overreach, would be for Congress to prohibit any regulatory agency from denying a U.S. entity the ability to operate in outer space on the basis of Article VI. Continue reading →
The Space Subcommittee of the House Science Committee on Science, Space, and Technology will hold a space regulation hearing on Wednesday, March 8 at 10 a.m. in the Rayburn Building. The hearing is titled Regulating Space: Innovation, Liberty, and International Obligations. I am honored to be included on the witness list.