Senate Hearing on Reopening the American Frontier

On Tuesday this week, May 23, the Senate Subcommittee on Space, Science, and Competitiveness held a hearing titled Reopening the American Frontier: Exploring How the Outer Space Treaty will Impact American Commerce and Settlement in Space. There were two panels, and I was on the first panel with my friends and colleagues Jim Dunstan of Mobius Legal Group and Matt Schaeffer, professor of law and co-director of the space, cyber and telecommunications program at the University of Nebraska’s law school. We were asked to address possible impacts of the Outer Space Treaty on the expansion of our nation’s commerce and settlement in outer space. My testimony is available here, and Professor Schaeffer’s is available here.

Mine is substantially similar to what I provided the House space subcommittee in March, but this time I emphasized more the importance of recognizing that the “harmful contamination” provisions of Article IX do not apply to private actors, and that human beings should not be treated as contaminants no matter how germy we are.

I found Jim Dunstan’s testimony particularly helpful and edifying, and strongly urge everyone to read the whole thing, but I want to highlight certain of his points. He makes some of the same points I have stressed in the past with regard to the import of Article VI’s call for authorization and supervision not being self-executing, but he has his own take on why the United States need not regulate more than it already does. The following outtakes highlight Jim’s perspectives:

  • The “authorization” and “supervision” components of Article VI are subsidiary to the overall structure of Article VI which places both the responsibility and liability for treaty violations and damages for space activities on the nation itself. A failure to either authorize or continually supervise the activities of private nationals merely increases the risk that a country might be liable for damages;

  • Article VI is not “self-executing,” meaning that the authorization and supervision language is not the “law of the land” in the United States, absent domestic legislation implementing Article VI. The case of Medellin v. Texas makes a clear distinction between treaty provisions that, by their language and nature, become the “law of the land” in the U.S., and those treaty provisions that require domestic implementation to have the force of law;

  • The Tenth Amendment (echoing the Declaration of Independence) provides the required “authorization” component of Article VI for Americans;

  • Congress has the discretion, as a matter of both international and American constitutional law, to decide how to implement its Article VI responsibility to provide “ongoing supervision” for private American actors in space;

With respect to Article VI and the previous administration’s report calling for the regulation of all U.S. missions in space he says:

The White House report notes, correctly, that some planned missions involve activity that is not currently regulated and then concludes, incorrectly, the U.S. is not meeting its obligations under Article VI. But Article VI does not, in and of itself, require any specific form of authorization and supervision—or that, in the absence of such, non-governmental activities are prohibited.

Interestingly, Jim ties treaty compliance to the fact that Article VI explicitly lays out the consequences for any lack of authorization and supervision:

 A lack of supervision is not, in and of itself, a violation of international law; it merely raises the chances that a non-governmental activity might run afoul of the OST prohibitions and that the country responsible be held liable for consequential damages because that country’s citizens seek to engage in a behavior that is a per se violation of the OST, or creates a probability that those activities will interfere with the activities of another space activity resulting in harm (e.g., orbital collision or frequency interference).  Congress now has the opportunity to decide where on that continuum of regulation it wishes to place the United States.

This might mean, as well, I’m figuring, that even a country that puts round the clock surveillance on its private actors and asks for the whole gamut of risk assessments, hazard analyses, mitigation plans, FMECAs, and FMAs before granting an authorization, may still be internationally responsible for any damage that private actor might cause. One response to this liability exposure that we’ve seen in the United States is to require launch and reentry licensees to obtain third party liability insurance under 51 U.S.C. ch. 509.

As for authorization, Jim looks to the Tenth Amendment of the Constitution:

The White House Section 108 Report also ignores the fact that in the United States, innovative outer space activities are already authorized. That authorization predates the space era by nearly 200 years. As Americans, we declared in 1776 that “[w]e hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.” The Tenth Amendment to the U.S. Constitution carries through this concept when it states that “[t]he powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” In short, absent a constitutionally consistent law prohibiting “innovative space activities,” Americans are authorized to pursue those activities. In other words, that which is not forbidden is permitted.

The above provides real food for thought, and I applaud Jim’s insights and am very glad he shared them with the subcommittee.

I don’t agree that Article IX ‘s harmful contamination provisions are self-executing or even applicable to private actors, applying as they do to “States Parties,” but I addressed that in my own testimony, as linked above.


Senate Space Subcommittee Hearing

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


What is the Federal Register? A Thing of Beauty

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

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

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

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

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

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

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

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

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

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

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

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

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


Space Workers

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

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

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

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





Podcast for Hotel Mars Now Available

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