NASA’s Civil Penalties as Adjusted for Inflation

On June 26, 2016, NASA released an interim final rule and request for public comments to adjust its civil monetary penalties to account for inflation.  Its new penalties apply to false claims, use of appropriated funds for lobbying or influencing certain contracts, and failures to report certain lobbying transactions.

Effective date:  August 25, 2017.

Comment deadline:  although the notice purports to request public comment, it does not provide a comment deadline.  Section V of the preamble invites comment. Because this is an interim final rule, an agency may change its rule in response to comments.  As the Federal Register explains:

Interim Final Rule: When an agency finds that it has good cause to issue a final rule without first publishing a proposed rule, it often characterizes the rule as an “interim final rule,” or “interim rule.” This type of rule becomes effective immediately upon publication. In most cases, the agency stipulates that it will alter the interim rule if warranted by public comments.  If the agency decides not to make changes to the interim rule, it generally will publish a brief final rule in the Federal Register confirming that decision.


FAA’s Office of Commercial Space Transportation Information Collection: Experimental Permits and Customer Survey

Experimental Permits.  On June 19, 2017, the FAA’s Office of Commercial Space Transportation released a request for comment on its proposed renewal of its collection of information from applicants for experimental permits.  Written comments are due August 18, 2017.  As background, the FAA states:

14 CFR part 437 established requirements for the FAA’s authority to issue experimental permits for reusable suborbital rockets to authorize launches for the purpose of research and development, crew training and showing compliance with the regulations. The information collected includes data required for performing a safety review, which includes a technical assessment to determine if the applicant can launch a reusable suborbital rocket without jeopardizing public health and safety and the safety of property. This information collection requirement is intended for incorporating acquired data into the experimental permit, which then becomes binding on the launch or reentry operator.   The applicant is required to submit information that enables FAA to determine, before issuing a permit, if issuance of the experimental permit would jeopardize the foreign policy or national security interests of the U.S.

Customer Survey.  On June 19, the FAA’s Office of Commercial Space Transportation also released a request for comment on its proposed renewal of its customer service survey.  This does not mean that AST is conducting the survey now, only that it is asking the Office of Management and Budget to renew a previously approved “information collection,” which is the technical term for the survey itself.  Written comments on the survey are due August 18, 2017.

One might think that the ultimate customer is the public, that is, those persons the FAA protects from errant launch vehicles.  However, “customer” applies here to those entities required by force of law to obtain authorization from the FAA in the form of a license or permit, including launch and reentry operators and spaceports.

Topics for comment.  For either of the FAA information collections, the FAA says you may comment on:

Whether the proposed collection of information is necessary for FAA’s performance; (b) the accuracy of the estimated burden; (c) ways for FAA to enhance the quality, utility and clarity of the information collection; and (d) ways that the burden could be minimized without reducing the quality of the collected information.


Procedural Protections of ASCFEA

As noted last week, the recently marked-up American Space Commerce Free Enterprise Act would require a non-governmental U.S. entity operating a space object to obtain certification  from the Department of Commerce. Last week’s post addressed some of the substantive issues in the bill. This week, we’ll take a look at the procedural protections the bill would offer.

Organizations: The first item of interest is the location of the regulator. Although the Federal Aviation Administration’s (FAA) Office of Commercial Space Transportation (AST) has issued a handful of payload reviews over the years for non-traditional space operations, the House Committee does not believe all space activities will have a transportation nexus requiring the FAA’s regulatory culture. Accordingly, the bill would place regulatory oversight and certification authority in the Department of Commerce’s Office of Space Commerce. The ASCFEA would provide that a space object whose operations are certificated by Commerce would not require an FAA payload review for purposes of determining consistency with national security, foreign policy, or international obligations. The FAA would, however, keep its authority to conduct a payload review for public health and safety and the safety of property. Presumably this means the FAA’s safety oversight would be confined to the safety of a launch or reentry, and not address the safety of an orbital habitat, lunar harpist, or Martian distillery. Some clarification may be in order if that is the case.

Numbers: The bill appears to require—but for all practical purposes at best encourages—the Secretary of Commerce to require, to the maximum extent practicable, only one certification for multiple operations of a single space object, for multiple space objects that carry out substantially similar operations, and for the use of multiple space objects to carry out a single operation. Although this language leaves much to the Secretary to decide about what constitutes an operation and whether it is single or multiple, there are advantages to the bill’s encouragement. First, it encourages the Secretary to treat certifications more like a driver’s license.  I go back to the State of Maryland in seven years for my license renewal, rather than every time I plan to get in my car.  This is more efficient.  The FAA offers a similar authorization called the launch operator license. Inspection of the active license list shows that it issues both launch operator, which is like a driver’s license, and launch specific–which applies to only particular launches–licenses. (Yes, the terminology is confusing because all operators of a launch vehicle are called launch operators.) For a Secretary so inclined, certification may efficiently cover more activities than not. A disadvantage to the bill’s approach is that it leaves that determination up to the Secretary, who may have a very narrow definition as to whether another operation is substantially similar enough to come under a single certification or not. Operators would have to seek interpretations from the Secretary repeatedly so as not to run afoul of the law, an exercise which may cause delay as much as obtaining a modification to an existing certification would.

Application requirements: Interestingly, the proposed legislation spells out the application requirements, thus limiting the ability of the Secretary to engage in far-ranging fishing expeditions. Typically, legislation does not do this, which means that a regulatory agency may ask for any information that may arguably fit within its authority. Additionally, a regulatory agency might ask for highly detailed information, but the bill states that an application “shall include only the following information….” (emphasis added).

After reviewing the application, if the Secretary determines that the application satisfies the statutory requirements, the Secretary must approve the application. If the Secretary denies the application (and only the Secretary may issue a denial), the Secretary must provide the applicant in writing a clearly articulated rationale for the denial that provides the applicant guidance on how to address the issue in a subsequent application. The Secretary must also inform the Congressional oversight committee of the reason for the denial. We may hope that Congressional oversight would ensure that any denial was solidly grounded in a statutory basis.

If the Secretary does not make a determination within the deadline, the certification “shall be approved without condition.” This provides an obvious incentive for the Secretary to make a determination because failing to decide means approving. Even if the Secretary’s review is slowed by other agencies, their failure to provide a response in a timely way will not mean that the decision gets put off but that a decision is forced. This would likely provide a disincentive for consulting with other agencies in the interest of time, and it might force other agencies who do get consulted to be able to explain themselves very quickly if they have a serious issue.

Tolling:  The Secretary may not toll the review period. This is also rather clever.  Review of a similar scenario may provide context.  The FAA has a statutory limit on how long it may take to conduct a review of a launch, reentry, or site license. If the FAA’s review takes longer than 180 days, the FAA must notify the House oversight committee within 30 days. In an attempt to be nice to applicants who submit incomplete applications, which happens, the FAA instituted the practice of tolling—stopping the clock from running on the 180 days—if the FAA has to wait for additional information for the application to be complete. This is nice (and, yes, “nice” is a legal principle) because, while it saves the FAA from having to deny an application for incomplete information, it saves the applicant from being denied a license and having to start the 180-day clock all over again from the beginning.

What happened, however, was that rather than appreciating the niceness no one liked being tolled. This provision may reflect that distaste. With the statute spelling out relatively straightforward application requirements, tolling should be unnecessary.  Additionally, with the shorter review period, it looks like it will be less painful to have to re-submit an application.  The lack of tolling would force a very clear decision process on the Secretary.  If an applicant failed to provide all required information or attestations, the Secretary (without delegating to the Office of Space Commerce) would have to deny the application him or herself. This would involve the Secretary in oversight of the application review period, which could lead to inquiries as to why the applicant wasn’t told sooner that information was missing.

What is most interesting, however, is that lacking the ability to toll makes it hard for the regulator to ask follow-up questions that may exceed the information required by statute. Any request for “more” that might result in issuing a denial will reach the attention of both the Secretary and the House oversight committee. A request for “more’ that merely misses the deadline will result in approval.  This may help keep the regulator confined to its statutory mission rather than seeking to add to it.  Fishing expeditions that exceeded the agency’s statutory authority would result in the clock running out and the deadline being missed.  If the Secretary is not able to articulate a rational basis for a denial, approval would be automatic.  In short, although at any given moment an applicant might wish tolling was available, in the long run its lack should force everyone to communicate issues more quickly so they might be solved, or recognize that they are too amorphous to reduce to a clearly articulated rationale, which is what would be necessary for a lawful denial.


Adverse Possession in Space

Mackey Chandler’s short story Adverse Possession deals with a confrontation between an official ship from Earth reaching Mars and finding, much to the consternation of all, that this particular celestial body is already inhabited.  The story is set in the near future, close enough that readers who are space lawyers may feel compelled to assess the situation in light of current law.  SPOILER ALERT (this is where you pause and go read the charming and entertaining story–it’s a fun, quick read.  I’ll wait):  What threw me was that Mars was not inhabited by Heinlein’s fundamentally scary Martians, or by Edgar Rice Burrough’s Deja Thoris and Tars Tarkas, but by people from Earth.

How the heck did people of Earth get to Mars with no one knowing about them?  Under current law space flight participants have to sign reciprocal waivers of claims with the U.S. Government and, as of 2015, with the launch operator.  The launch operator has to get an FAA license to get off Earth, and that process involves saying where you are going.   (Sure, these laws may not survive the future, but laws seem hard to repeal, even those that are designed to sunset.  How many times have the so-called “indemnification” provisions of the Commercial Space Launch Act been extended?  A lot.)  It seems that someone at the FAA would know that people had gone to Mars and who they were, and might mention it in passing during an inter-agency meeting or three.  We know for sure the agency would have issued a press release.  Had the secret travelers availed themselves of the regulatory provisions protecting proprietary information?   Even though I have said SPOILER ALERT I will not give away the answer.  I will only say it’s not legal.  Any comments to this post should be appropriately cited.

About the Books Tab: I like science fiction. I like space law. The Book Tab contains science fiction books or short stories I come across that touch upon some element of space law. When I find an issue of space law in near future science fiction I will mention the book and the issue, and you can find links in the post and at the Book Tab. The Book Tab also contains my books, of course, even though two of them are purest space opera with not an ounce of space law to them. (That’s because it’s my blog.) The other two are bourgeois, legal science fiction full of space law and policy wonkery.  They’re the ones without a space marine on the cover.



The FCC and Internet Freedom

The Federal Communications Commission released a notice of proposed rulemaking that is of regulatory, if not space law, interest.  The FCC

proposes to end the Commission’s public-utility regulation of the Internet and seeks comment on returning to the bipartisan, light-touch regulatory framework that saw the free and open Internet flourish prior to the 2015 adoption of the Commission’s Title II Order.  Specifically, the NPRM proposes to return broadband Internet access service to its classification as an information service, return the classification of mobile broadband to its classification as a private mobile service, and eliminate the Internet standard. The NPRM also seeks comment whether the Commission should keep, modify, or eliminate the bright-line rules set forth in the Title II Order.

The term “light-touch” does sound familiar to those of us following the progress of the debate on whether the United States must regulate all space activity.

Deadline:  Comments are due on or before July 17, 2017, and reply comments are due on or before August 16, 2017.


Thoughts on the ASCFEA (including a modest proposal on how to pronounce it)

The American Space Commerce Free Enterprise Act cleared the House Space Science and Technology Committee on June 8 by voice vote. Marcia Smith has a nice description of the goings-on, including sponsors, amendments, and the Committee’s summary, at SpacePolicyOnline.

Setting aside my own views that authorizing and supervising any particular activity—much less all of them—is unnecessary, and noting concerns over the breadth of authorizing the operation of a space object, this bill is a much better model of what a light and transparent version of regulation could look like than either the previous Administration’s “Section 108” proposal or an enhanced payload review. Both proposals would have allowed regulatory agencies and those with whom they consulted a heavy hand and uncabined discretion to impose conditions and create delay. The ASCFEA (might we get consensus on pronouncing it a-s-C-fea? It’s really hard to remember all those letters in the right order) would require a non-governmental U.S. entity operating a space object to obtain a certification to do so from the Department of Commerce. The bill also would reform the remote sensing licensing process. Three points are of initial interest with respect to the non-traditional operators: the definition of a space object, the orbital debris provisions, and what amounts to a prohibition on nuclear weapons and weapons of mass destruction consistent with Article IV of the Outer Space Treaty.

Space object. Under the bill, a space object would consist of “a human-made object located in outer space, including on the Moon and other celestial bodies, with or without human occupants, that was launched from Earth, such as a satellite or a spacecraft, including component parts of the object; and all items carried on such object that are intended for use in outer space outside of, and independent of, the operation of such object.” A space object would not be “an object inside a space object that is only intended for use inside the space object.” Nor could it be “an article manufactured or processed in outer space that is a material.” Lastly, a space object would not be “an article intended for use outside of a space object as part of the certified operations of the space object.”

These definitions are far superior to the Section 108 proposal, which would have required approval of the operation of anything and everything one might take into space. However, the bill’s definitions might stand some tightening up so as to leave less discretion to the Secretary of Commerce. Discretion is nice for the Secretary, but creates regulatory uncertainty for operators and invites regulatory overreach. We might anticipate that the Secretary of Commerce will conduct a rulemaking to clarify these issues. Rulemakings take about five years.

Taking a lunar habitat with human occupants as an example, we can figure the habitat is a space object. The electric toothbrush is not a space object because it is intended for use inside the habitat space object. The distillery for a little home brew in the habitat is not a space object either. However, if you put a distillery on the Moon outside the borders of our now-growing Selene City, the distillery becomes a space object even though it wasn’t when it was inside Selene and possibly posing a greater hazard. I think I’d put a dome over my external distillery, and get a permit for the dome.

I’m not sure where a space suit falls. On the one hand, if you put on a space suit to go outside an orbital habitat to test your courage and take a little tour of the stars, your jaunt is arguably divorced from the operations of the habitat and your space suit is now a space object that requires a certificate. On the other hand, if you are donning the space suit to conduct repairs on the habitat, you could argue you don’t require certification for the space suit because fixing the habitat is part of its “certified operations.” An operator could side-step this type of question by describing all possible operations involving an object and its related objects, particularly those that interface with vacuum, which seems to be a line the bill draws.

Is vacuum the line to draw? If one were regulating for safety it would make sense. The lack of air outside can pose a hazard to people. Perhaps the bill’s lack of certification requirements for activities inside a space object shows that the main concern is knowing where everything is so the federal government may be ready to address potential interference issues with foreign nations under Article IX.   Will agencies such as the State Department accept the fact that activities may take place inside a space object that do not get their own individual certification?

Orbital debris. The Section 108 report sought protection of the U.S. government’s uses of space.  In what may be an attempt to allay concerns over the space assets of the federal government, the bill would require an applicant to describe how it proposed to operate and dispose of its space object so as to mitigate the generation of orbital debris. The bill would define “space debris mitigation” to mean “efforts to prevent on-orbit breakups; remove spacecraft that have reached the end of their mission operation for useful densely populated orbit regions; and limit the amount of debris released during normal operations of a space object.”  Section 80103(a) requires an applicant to provide a description of its mitigation plans, which under section 80104 must account for U.S. best practice guidelines, although storage of a spacecraft would be allowed.

Attestations consistent with Outer Space Treaty obligations on the United States. In its application, the applicant must attest that its proposed space object is not and will not carry a nuclear weapon or weapon of mass destruction, and that the space object will not be operated or used for the testing of any weapon on a celestial body. This is consistent with the directions in Article IV of the treaty that

States Parties to the Treaty undertake not to place in orbit around the Earth any objects carrying nuclear weapons or any other kinds of weapons of mass destruction, install such weapons on celestial bodies, or station such weapons in outer space in any other manner. The Moon and other celestial bodies shall be used by all States Parties to the Treaty exclusively for peaceful purposes. The establishment of military bases, installations and fortifications, the testing of any type of weapons and the conduct of military maneuvers on celestial bodies shall be forbidden.

The bill would condition grant of a certification on the applicant attesting it would not do these things. Note that the bill would require no attestations or plans regarding harmful contamination, and does not grant the Secretary the authority to require such attestations.

Conditions to ensure treaty conformity. The bill would allow the Secretary to impose conditions on a certificated entity to ensure compliance with an Outer Space Treaty provision applicable to a non-governmental U.S. entity. In other words, the non-interference provisions of Article IX, which apply to non-governmental entities, could provide a basis for imposing a condition on a certificated entity, but the harmful contamination provisions, which only apply to States Parties, would not. (If the language of section 80103(c)(1) is not clear enough, (c)(2)(C) is very blunt and clear in saying “The Federal Government shall not presume all obligations of the United States under the Outer Space Treaty are obligations to be imputed upon United States nongovernmental entities.”) If conditions would not cure a potential violation, the Secretary would be able to deny the applicant a certificate.

The bill contains a multitude of procedural protections. Some of them are rather clever, but I have exceeded this post’s word limit and may address those protections later. Also, the version I have does not contain the June 8 amendments.



ABA Air and Space Law Forum June 8

I am looking forward to the American Bar Association’s Space Law Symposium this Thursday, June 8, 2017, at the University Club in Washington, D.C.  The Symposium will be all day, and at 2:30 I will be on a panel called Mars, the Moon, and the Legal and Policy Implications of Human Space Exploration.  I will talk about the FAA’s human space flight requirements, pose a question about planetary protection in the context of human settlement, and maybe stray into the issues surrounding authorization and supervision of U.S. persons in outer space.