ABA Interview

I participated in an American Bar Association round table discussion a few months ago with my friend and colleague Pamela Meredith, a fellow space lawyer.  The ABA captured the discussion in its publication The Air & Space Lawyer’s Winter 2017 edition.  If you are a member or subscriber, you can read it here.  The interviewer asked us about a range of topics, from the big issues in space law twenty years ago, to current issues, to our experiences as women in the field.  I am allowed to share what I said so long as it is clear that it may not be reprinted without permission from the ABA.

The Past. In response to questions about the FAA’s regulatory focus twenty years ago:

With geostationary and low Earth orbit satellites, the launch industry realized that expendable launch vehicles (ELVs) could be commercially viable. This was also after the Challenger accident, at a time when there was no more commercial activity on the space shuttle, which had forced industry to pivot back to ELVs. The Air Force also was very interested in fostering at least two ELVs so that there would be some competition. ELV companies, meanwhile, were attracted by the prospect of a market where not only the government but also commercial satellite operators would be their customers. This created considerable optimism about the industry’s commercial prospects and led to a significant infusion of capital in both satellite operators and the launch industry.

For the FAA, it was a time of great regulatory activity. We had previously relied so heavily on the Air Force for safety that the safety standards were rather nontransparent. The FAA sought to address this by publishing and codifying regulations. Not surprisingly, these regulations were similar to the Air Force’s practices and procedures. The FAA promulgated the so-called “launch rule” or core regulations governing launch vehicles. It took nine years to finalize those regulations.

The Present.  In response to a question about current issues:

The concept of space law has evolved from a rather academic focus on international treaties (dating back to the 1960s and 1970s) to the later emergence of national or domestic space laws. In the United States, this includes the regulatory roles and activities of the FAA, the FCC, and the National Oceanic and Atmospheric Administration (NOAA). As the focus has started to shift from expendable to reusable rockets, companies like SpaceX and Blue Origin are leading the way and hopefully will make space more accessible from an operational and cost perspective. Orbital debris, however, remains a significant and increasing concern. I was proud that the FAA was the first regulatory agency to issue debris rules, and the private sector is also attempting to address the problem (e.g., through the Space Data Association), which is appropriate because it is their property that would get destroyed if a collision occurs.

The Future.  In response to questions about what’s coming down the pike:

Looking to a future of people traveling to the Moon and Mars, property rights issues are likely to become critical, both with respect to moveable property and real property issues. In 2015, Congress recognized that space miners have property rights in the resources they extract. Congress did not, however, address questions regarding private ownership of land. Many academics think that the Outer Space Treaty prohibits private ownership of real property, but I do not agree. That question, however, is a live issue.


Pamela and I disagree on this, but there’s a provision in the Outer Space Treaty, Article VI, which says that each country must supervise and authorize the activities of its nongovernmental entities. This is not a self-executing provision, and the U.S. Supreme Court has held that a non-self-executing treaty is not domestically enforceable. This means that if someone wants to go play the harp on the Moon or brush her teeth in outer space, she doesn’t need a license. I use these frivolous examples intentionally to make the point that everything doesn’t need to be regulated just because you’re in outer space.



Launch Spectrum from the FCC

The Federal Communications Commission released its semiannual Unified Agenda in the Federal Register on January 12, 2018.  A rulemaking that has been on the agenda for several years now addresses spectrum allocation for three space-related purposes.  The notice of proposed rulemaking, Federal Earth Stations—Non-Federal Fixed Satellite Service Space Stations; Spectrum for Non-Federal Space Launch Operations, came out July 1, 2013, but, over four and a half years later, the FCC has yet to release its final rule.  The Agenda, in fact, states that the Commission has not determined the next action, indicating that a final rule may no longer be in the works.

In 2013, the Commission proposed to change its Allocation Table to provide access to spectrum on an interference-protected basis to Commission licensees for use during the launch of launch vehicles. The Commission also sought comment broadly on the future spectrum needs of the commercial space sector.  The FCC allows commercial operators, whether of satellites or radio stations, access to spectrum for commercial uses. The National Telecommunications and Information Administration (NTIA) administers spectrum set aside for federal users.   Accordingly, for government launches taking place at federal ranges such as Cape Canaveral Air Force Station or NASA’s Wallops Flight Facility, the government operators use federal spectrum and don’t apply to the FCC for a license as commercial operators must.  Instead, they obtain access through the federal range.

For a few decades now, commercial launch operators have launched from federal launch sites such as the Cape and Wallops. The FCC has been issuing Special Temporary Authorizations under Part 5 of its experimental rules to allow commercial operators access to the ranges’ federal spectrum.  STAs do not provide an operator protection from interference from federal users, and each commercial proposal to use the federal spectrum must be granted on an individual basis.  As Commissioner Clyburn noted,

Given the high cost of launches and the safety concerns of manned spaceflights, relying on non-interference use of spectrum, is not a practical, long-term solution. Therefore, this NPRM offers well-defined application and coordination processes, to enable commercial operators, to directly acquire the optimal type of licenses needed, for communications during space launches. The Notice of Inquiry (NOI) section of the item properly tries to anticipate other communications needs of commercial space missions, such as re-entry, or the “on orbit” phase of a mission, that could require changes in spectrum allocations.

The safety system for a launch vehicle depends on signals to and from the rocket arriving at their intended destinations, so that the operator may know if the vehicle is off course and then transmit a signal to destroy it.  At a federal range, a federal safety officer transmits the destruct signal.  The FCC saw two possible factors that might require commercial access to the spectrum used for destruct signals:  a commercial operator seeking to use its own equipment, and the advent of commercial spaceports not operated by NASA or the Department of Defense.  In the meantime, it looks like commercial launch operators will continue to rely on the federal ranges for destruct actions.


Incidental Harassment Authorization Issued to SpaceX

On December 26, 2017, the National Marine Fisheries Service of the National Oceanic and Atmospheric Administration published a notice in the Federal Register that it had issued SpaceX an incidental harassment authorization for its sonic booms

to incidentally harass, by Level B harassment only, marine mammals during boost-back and landing of Falcon 9 rockets at Vandenberg Air Force Base in California, and at contingency landing locations in the Pacific Ocean.

People speak of the FAA having exclusive jurisdiction over regulating launches.  Section 50919(a) of the Commercial Space Launch Act states that, except as provided by the CSLA, “a person is not required to obtain from an executive agency a license, approval, waiver, or exemption to launch a launch vehicle … .”  So why did SpaceX need NOAA’s authorization for the landing of its first stage?

Arguably, SpaceX didn’t.  It needed NOAA authorization for something different, the harassment of marine mammals.  The FAA authorizes the launch, but the activity of harassing a marine mammal is different, and thus regulated by a different agency.  However, one might wonder whether NOAA isn’t regulating the noise of the launch.  If the aviation side of the FAA doesn’t regulate the noise of launch vehicles, how does NOAA get to?  Another thing a person might wonder is whether NOAA’s  marine fisheries service falls under 50919(b)’s exceptions to the statement that a launch operator need not obtain other approvals.  Paragraph (b) says “This chapter does not affect the authority of” the FCC or “the Secretary of Commerce under chapter 601 of this title.”  Yes, NOAA and the marine fisheries service are located within the Department of Commerce, but Chapter 601 of Title 51 applies to remote sensing, not to marine mammals.  Perhaps Congress did not grant the marine fisheries service an exception?

I’m about to start teaching space law at Catholic University’s law school in a couple days.  Accordingly, I am training myself to raise questions for discussion.  Who knows, this one could be on an exam.  The questions should provide only the beginning of the analysis.



Guidance on Guidance from the Administrative Conference of the United States

By notice in the Federal Register, the Administrative Conference of the United States published five new recommendations for regulators.  ACUS is an independent federal agency charged with convening experts from the public and private sectors to recommend improvements to administrative process and procedure, including those of such space regulators as the Federal Aviation Administration, the Federal Communications Commission, and the National Oceanic and Atmospheric Administration. ACUS intends its initiatives to promote efficiency, participation, and fairness in federal regulations.  In that regard the recommendation regarding policy guidance is worth looking at more closely.  The rest encompass plain language, marketable permits, learning from experience, and waivers and exemptions.

Defined.  First, what is a policy statement and how does it relate to administrative law?  Quoting from the 1947 Attorney General’s Manual on the Administrative Procedure Act, ACUS says:

General statements of policy under the Administrative Procedure Act (hereinafter policy statements) are agency statements of general applicability, not binding on members of the public, ‘‘issued . . . to advise the public prospectively of the manner in which the agency proposes to exercise a discretionary power.’’  Interpretive rules are defined as rules or ‘‘statements issued by an agency to advise the public of the agency’s construction of the statutes and rules which it administers.’’

Neither policy statements nor interpretive rules require public notice and comment, and agencies often refer to them as guidance.  The ACUS recommendation applies only to policy statements.  The FAA’s guidance falls into this category.

Improper treatment of guidance as mandatory.  ACUS took pains to note the many benefits of policy statements, including their flexibility and how much easier they are to issue than are regulations.  However, one drawback is that policy statements, too, acquire an improper, but nonetheless present, mandatory patina of their own:

…modern regulatory schemes often have structural features that tend to lead regulated parties to follow the policy statement’s approach even if in theory they might be legally free to choose a different course, because the costs and risks associated with doing so are simply too high. This is often the case if statutes or regulations (a) require a regulated party to obtain prior approval from an agency to obtain essential permissions or benefits; (b) subject a regulated party to repeated agency evaluation under a legal regime with which perfect compliance is practically unachievable, incentivizing the party to cultivate a reputation with the agency as a good-faith actor by following even non-binding guidance; or (c) subject the regulated party to the possibility of enforcement proceedings that entail prohibitively high costs regardless of outcome, or can lead to sanctions so severe that the party will not risk forcing an adjudication of the accusation.

Both launch and satellite operators may feel the pressure to follow non-binding guidance given that they need licenses from the FAA, the FCC, and NOAA.  At the FAA, an operator must renew its license every five years, if not more frequently, thus placing it in the position of undergoing repeated regulatory review.  The FAA’s Office of Commercial Space Transportation issues guidance, some in the form of Advisory Circulars, some other under names.

ACUS goes on to note that internal agency incentives may cause agency officials to treat the “guidance” in a policy statement as mandatory:

Officials who behave inflexibly may be seeking to balance the importance of being flexible against stakeholder demands to honor other, competing values that officials would be remiss to ignore. For example, if one regulated firm argues for a different approach from that in a policy statement and the agency approves, this may prompt other firms to criticize the agency for not keeping a level playing field among competitors; may cause other firms to lose faith in the agency’s consistency and predictability, which may render them less likely to trust and cooperate with the agency; and may open the agency to accusations of favoritism from non-governmental organizations (NGOs), the media, and congressional overseers.

In principle, one way an agency might reconcile these understandable pressures would be to prepare and disseminate written reasons when it approves an approach different from that in a policy statement, thereby making the same reasoning available to all similarly situated parties going forward. This transparency helps level the playing field, makes agency behavior more predictable, and diminishes concerns about favoritism. But agencies might still find inflexibility the easier course and adopt it by default, because reason-giving requires agency resources. Besides this, there are additional organizational reasons for inflexibility: Some agency offices, by reason of their usual day-to-day business, are socialized to be less receptive to stakeholder requests than others; higher-level officials have institutional reasons to back the decisions of their subordinates; and the distinction between binding and nonbinding policies is counter-intuitive for many officials, at least without substantial training.

Opportunity for public comment.  ACUS recommends considering public participation in the formulation of a policy statement such as guidance.  One benefit of allowing the public to comment on a draft is that  participation may help those who lack the resources to fight an enforcement action brought for a violation of a purportedly non-binding guidance.

ACUS advises treating its recommendation for public participation with care, because it sees drawbacks to implementing it too widely.  Specifically,

a broad mandate applied to a resource-strapped agency may cause the agency to fail to process and incorporate comments and instead leave many policy statements in published ‘‘draft’’ form indefinitely, which may at least partly defeat the purpose of participation and cause stakeholder confusion. Second, a broad mandate may so legitimize policy statements in the eyes of the agency that such statements could end up largely supplanting legislative rulemaking.

Both possibilities are real risks, and ACUS identifies them because they happen.

Publication of acceptable alternatives for transparency.  The specific recommendations start on page 61736, but one in particular bears mention.  ACUS recommends something that should be standard practice.  Specifically, when the agency accepts a proposal for a lawful approach other than what the guidance of a policy statement says is acceptable, and the new approach seems likely to apply to other situations and persons, the agency should share its decision and the reasons for it with other persons who might benefit from it.  (This sharing should, of course, be subject to protections for confidential business or personal information.)  The best way to share this information is through the Federal Register, but an agency’s website can also help ensure that people actually see it.