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.

 

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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.

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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.

 

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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.

 

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Uncommon Space

At the Galloway Symposium on December 13, 2017, Dr. Scott Pace, the Executive Secretary of the National Space Council gave a keynote address at the luncheon. The Galloway Symposium is an annual conference of space law practitioners, law professors, and other interested persons.  Amongst the many other heartening things Dr. Pace said, he explained that space is not a global commons:

Finally, many of you have heard me say this before, but it bears repeating: outer space is not a “global commons,” not the “common heritage of mankind,” not “res communis,” nor is it a public good.  These concepts are not part of the Outer Space Treaty, and the United States has consistently taken the position that these ideas do not describe the legal status of outer space.  To quote again from a U.S. statement at the 2017 COPUOS Legal Subcommittee, reference to these concepts is more distracting than it is helpful.  To unlock the promise of space, to expand the economic sphere of human activity beyond the Earth, requires that we not constrain ourselves with legal constructs that do not apply in space.

In 2015, Professor Henry Hertzeld of George Washington University and Christopher Johnson and Brian Weeden of the Secure World Foundation addressed this topic in  Simple Terms Mislead Us:  The Pitfalls of Thinking of Outer Space as a Commons.  A more comprehensive version is available here, but it may lurk behind a paywall.  In their article they discuss how we shouldn’t think of space as a commons and that what really constitutes the “province of all mankind” is not outer space itself but the activity of exploring and using it.  This was an eye opener for me.

First, they start with the text of Article I of the Outer Space Treaty, which says:

The exploration and use of outer space, including the Moon and other celestial bodies, shall be carried out for the benefit and in the interests of all countries, irrespective of their degree of economic and scientific development, and shall be the province of all mankind. Outer Space, including the Moon and other celestial bodies, shall be free for exploration and use by all States without discrimination of any kind, on a basis of equality and in accordance with international law, and there shall be free access to all areas of celestial bodies.

In explaining this language they note that it is exploration and use that is the province of all mankind:

Consequently, it is not the physical domain of outer space itself— the three dimensional expanse, beginning above airspace and extending infinitely outwards–which is the province of all mankind, but the activity itself, the “exploration and use” of outer space, which is addressed. This subtlety seems all too often lost on those whom believe that space (both void space and celestial bodies) somehow belongs to humanity. Rather, the exploration and use of space (both void space and celestial bodies) is free to be explored and used by States Parties to the treaty. Because the OST has been ratified or signed by all space-faring nations and this particular provision in Article I considered to have risen to the level of customary international law, all States across the world (and by inference, all peoples), enjoy this privilege to explore and use outer space. All too often, commentators and pundits remark that outer space itself belongs to everyone. It is in fact just the opposite. Space itself belongs to no one and the right to access, explore, and use space is granted to everyone.

They also note in passing that the Moon Treaty is of historical interest only.  The Moon Treaty serves as the source of the notion that the Moon and its natural resources are the “common heritage” of mankind.  It, however, is what the authors describe “as a failed exercise in treaty-making.”  Only 20 nations signed it, and none of those able to reach the Moon did so.

Although the authors do not provide a full description of the development and uses of the term “commons” what they describe proves helpful.  It is worth reading the whole discussion, which starts on page 5.  By Roman times, which was where all that Latin comes from, there were many forms of property:

whether property was in commercio or extra commercio, and if it was outside of commerce, whether it was res divine (in the control of the gods), res publicae (things open for public use and regulated by the government and not available for private ownership), res omnium communes (things legally not property because they were incapable of dominion and control); and res nullius, (things not possessed by an individual but capable of possession).18 Beyond these categories there are others, including various servitudes, which are similar to what we currently call easements, the right of a person to use another’s property. Similarly in English Common Law, the development of common areas was complicated…

The authors point out that outer space does not meet the criteria under which these terms apply:

all of these legal concepts of a commons need (1) a sovereign power to grant the territory to open use and to then grant whatever limited property rights are necessary for the continued existence of the commons over time, (2) an area of land or a region with well-defined borders, and (3) an economic foundation that requires or facilitates some basic human need (often food) that is more productive or efficiently performed collectively.

They note that outer space has none of these things.  Article II of the Outer Space Treaty prohibits claims of sovereignty.   Border are not well defined, and the terrestrial economy does not need outer space to survive.

Finally:

there is a logical contradiction in this discussion about outer space being treated as a commons. If a commons needs a sovereign government to grant the open territory to the use of all people, it is that government that has to oversee, regulate, and enforce that charter. Art. II of the OST prohibits national sovereignty in outer space. Thus, it is an area without a government. Even if all nations regard outer space as a “commons,” it is a very different concept from any commons that has been established in the past. There is no real legal precedent, no true means of oversight or enforcement, and therefore should not be confused with any of the many ways that concept has been applied to the territory or oceans of the Earth.

Why does all this matter?  Is it because of the tragedy of the commons (aka “the tragedy of the bunnies“)?  Or, is it because treating outer space as a commons provides a disincentive to private investment?

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FCC Adopts Final Rule for Non-Geostationary, Fixed-Satellite Service Systems

The Federal Communications Commission announced by notice in the Federal Register that it is adopting new regulations for non-geostationary, fixed-satellite service systems.  The FCC intends them to better reflect current technology and to promote operational flexibility.  The new rules go into effect January 17, 2018.  As is common with the FCC, the Federal Registers contains a summary, and the full text is available here on the FCC’s website. The full text shows that the FCC is also releasing a further notice of proposed rulemaking to address procedural matters.

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Trump Administration’s Unified Agenda for Space Transportation Regulation

The Trump Administration has released its Unified Agenda, and it contains several upcoming space transportation rulemakings.  For a description of how to navigate the Unified Agenda, go here.

Neomi Rao, the administrator of the Office of Information and Regulatory Affairs in the Office of Management and Budget, described the Administration’s regulatory goals in the Wall Street Journal:

Agencies are now expected to regulate only when explicitly authorized by law—and to follow the proper procedures. The same standards now apply to regulatory and deregulatory actions. If the government exercises its regulatory power, it should do so with fair notice and due process, and only upon a conclusion that the regulation is necessary and that the benefits of the regulation justify its costs.

Regulatory reform not only promotes individual liberty and a flourishing economy, it also supports constitutional democracy. Through OIRA’s regulatory review process, we ensure that agencies stay within the legal authority given by Congress. When the law provides discretion, we work with agencies to ensure that regulatory policy reflects presidential priorities. This executive direction makes the rule-making process democratic and accountable.

Notices of Proposed Rulemaking.  An orbital debris mitigation proposal describes the costs and benefits as around $30 million without actually identifying the mitigation measures proposed.  Since I worked on this one while I was at the FAA I will do no more than provide a link, and leave analysis and speculation as an exercise for the reader.

The FAA also proposes to clarify and streamline some regulations:

This action would revise part 413 to allow specified pre-flight operations prior to license approval, remove obsolete, non-functional, and in some cases duplicative, part 417 ground safety regulations, expand the term of a reusable launch vehicle (RLV) license (part 431) and reentry operator license (part 435) from two years to five years, and clarify the differences in the meaning of the term safety approval as referenced in parts 415 and 431.

I did not work on this project which leaves me free to note that when I originally skimmed this I thought the FAA planned to fix its part 414 safety approval regulations. Current regulations lead people to think that safety approvals may be granted more broadly than the Commercial Space Launch Act actually allows.  However, the referenced safety approvals appear to apply to licenses.  I was therefore incorrect.  The FAA calls this one deregulatory.

Another new, deregulatory proposal for risk to ships would align the FAA’s requirements in parts 417, 431, and 435, for protecting ships during launch or reentry with new practice at USAF ranges, offering operators another option for compliance. If a near real-time assessment demonstrated that the total mission risk was satisfied given the best available data on the conditions during flight launch could proceed.  It will be interesting to see if that translates into functionally dropping the risk threshold for ship hit.  Under current regulations an operator must satisfy total mission risk requirements for all three hazards AND the ship hit requirements.  If I am understanding this correctly, the FAA proposes to allow satisfaction of one requirement (total risk, which excludes ships) to remove the other (the ship hit requirement).  Perhaps “total mission risk” does not mean the risk assessed under 14 CFR 417.107(b)(1), which applies to the “total risk” of debris, toxic releases, and far field blast overpressure.  This will be interesting to read when it comes out.

The final new deregulatory proposal would update the FAA’s regulations to conform to the changes Congress made in 2015 to the Commercial Space Launch Act.  Presumably, this action would clarify that space flight participants must now enter into reciprocal waivers of claims with launch and reentry operators authorized by the FAA.   Also, it may make clear that many obligations under the FAA’s rules do not apply to government astronauts.

Final Rule.  Lastly, the Agenda projects release of a final rule.  In 2016 the FAA published “Updates to Rulemaking and Waiver Procedures and Expansion of the Equivalent Level of Safety Option.”  The Agenda states that the final rule should have come out in November of this year, so perhaps we may expect it soon.

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Change to Presidential Space Policy

In 2010, President Obama issued a National Space Policy.  This morning, the Federal Register released President Trump’s amendment to that policy.

The 2010 Policy stated that NASA shall  “set far-reaching exploration milestones,” and, by 2025, begin crewed missions beyond the moon, including to asteroids.  Also, the policy directed NASA to send humans to orbit Mars and return them safely to Earth by the mid-2030’s.

The new policy repeals that paragraph and states that NASA shall:

Lead an innovative and sustainable program of exploration with commercial and international partners to enable human expansion across the solar system and to bring back to Earth new knowledge and opportunities. Beginning with missions beyond low-Earth orbit, the United States will lead the return of humans to the Moon for long-term exploration and utilization, followed by human missions to Mars and other destinations;

The new directive does not contain dates, but it directs NASA to return people to the Moon and then on to Mars, and establishes that the lunar missions have long-term exploration and utilization as their goal.

 

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Catholic University Columbus School of Law

I will be teaching a seminar in space law at Catholic University’s Columbus School of Law starting in January.  I’m working on the syllabus.  Part of me wanted to divide things up by regulatory agencies.  However, topics are proving more natural.  Orbital debris, for example, will get its own class.  There are enough rules and guidelines about it alone.  Property rights also deserves its own session.  I will, however, devote at least two classes to the FAA’s regulation of commercial space.  It deserves no less.

 

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