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.

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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.

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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.

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Testimony to House Space Subcommittee

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,[1] 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

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Chairman Babin on International Obligations in Space

On February 7, 2017, at the FAA’s Commercial Space Transportation Conference, Representative Brian Babin, Chairman of the Space Subcommittee of the House Science, Space and Technology Committee spoke on how the U.S. can fulfill its international obligations for commercial actors in outer space.  If you wish to read his whole speech, this link will take you there:   FAA conference Feb 7 2017 .  Among other topics, he addressed questions raised by Article VI.  As GroundBased readers know full well, Article VI of the Outer Space Treaty 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.”  The Chairman responded to this provision in a very thoughtful fashion.  First, he lays out the domestic philosophy of governing.

[T]he government’s role isn’t to give you permission to do something. The government’s role should be limited to only those areas that require its intrusion, which is a high bar. The burden of proof shouldn’t be on the individual to demonstrate the “right” to act; the burden of proof should be on the state when it seeks to restrict liberty.

In thinking about how this clear statement of philosophy might play out, I see two possible paths.  In the one path, the executive branch’s agencies would recognize that because Article VI is not self-executing, and if Congress hasn’t passed a law like it did when it told the FAA to authorize launch, reentry and spaceports, then Article VI poses no barrier to any particular activity.  In the second, Congress itself would pass legislation reminding everyone of that point.  (I am nervous about processes where Congress would assign an agency the job of “defaulting to approval.”  I suspect that was the original intent behind the FAA’s payload review, but I’m not sure it’s worked out that way.  The better course might be to create a notification regime, or, better yet, to ensure that an applicant need apply for nothing to operate in outer space.)

The Chairman also discussed what he did not want to see:

[T]he Constitution places the responsibility upon Congress to make legislative determinations regarding what requires federal authorization and supervision. It should not be the case that everything anyone does in outer space requires federal approval. Article 6 grants States the discretion to decide what must be authorized to assure conformity with treaty obligations and how it is to be supervised. Transferring this authority to the executive branch raises serious concerns given how vast the scope of regulatory oversight would be.

Legislative Responsibility and Due Process.  Chairman Babin raises a couple of interesting legal points with this observation.  As he notes, it is Congress, not the Executive Branch that makes the legislative decisions about what requires federal oversight.  Also, if the U.S. decides that more private activities in outer space require oversight, we should identify what those activities are.  As the Supreme Court has said on more than one occasion, due process considerations of notice and transparency require that an ordinary person be able to tell what is forbidden and what is required.  Saying everything must be authorized would be so broad as to create constant confusion.  People would convince themselves that the law cannot possibly apply to playing the piccolo or anything else equally mundane.  But we lawyers read the words of a law with exactitude, and if the law says everything then the law means everything.  The agency charged with enforcing any such law would have to apply the words as written.  Recently, we’ve seen pie in the sky and a proposal for lunar brewing.  Are those activities so hazardous they require the expenditure of taxpayer resources?

Discretion.  The Chairman is correct to note that the treaty “grants States the discretion to decide what must be authorized to assure conformity with treaty obligations and how it is to be supervised….”  (Emphasis added).  This means that a country might decide not to regulate the lunar harpist, but go all in on the lunar brewer.

The Chairman also echoes the Supreme Court in noting that, for a treaty that is not self-executing,

the executive branch, unless explicitly authorized by Congress, should not deny an American citizen the right to explore and use Outer Space. I hope that the incoming Trump Administration will closely examine this topic, because this question of how we will regulate our private sector activities is not simply academic. I believe it is one of the fundamental space policy questions of our time. America is great because it is a country where you have the freedom to create without government permission. We are all free, unless we chose, through our legislative process, to limit our freedoms.

Self-executing.  As this blog has discussed, Article VI is not self-executing, which means that Congress must provide direction before the executive branch may attempt to enforce that provision.  It would be wonderful indeed if the new Administration were to issue a statement recognizing that if Congress has not forbidden a space activity, then that activity  is allowed, thus putting to bed the regulatory uncertainty that plagues some.  Then, if an agency sought more authority over the private sector it would have to go through the usual exercise of demonstrating to Congress a real need to burden the private sector.

 

 

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Thoughts on Current Events in Congress and the Administration: the CRA and an E.O.

Congressional Review Act  The Wall Street Journal’s Kimberly Strassel wrote last week about far-reaching implications of the Congressional Review Act, noting that Congress can overrule some regulations and guidance promulgated since 2009, depending on whether the agency promulgating the rules filed a report with Congress.

The accepted wisdom in Washington is that the CRA can be used only against new regulations, those finalized in the past 60 legislative days. That gets Republicans back to June, teeing up 180 rules or so for override.

***

But what Mr. Gaziano told Republicans on Wednesday was that the CRA grants them far greater powers, including the extraordinary ability to overrule regulations even back to the start of the Obama administration. The CRA also would allow the GOP to dismantle these regulations quickly, and to ensure those rules can’t come back, even under a future Democratic president. No kidding.

Here’s how it works: It turns out that the first line of the CRA requires any federal agency promulgating a rule to submit a “report” on it to the House and Senate. The 60-day clock starts either when the rule is published or when Congress receives the report—whichever comes later.

According to Todd Gaziano, former counsel to a Congressional sponsor of the law, not all agencies file the required reports, so that the clock doesn’t start running for Congress to use the CRA. In other words, if an agency issued a major rule in 2014, but did not send Congress its report on the rule, and the new administration submitted a report today, Congress would have 60 days to use the CRA process.

One point to consider is that Congress has always had the power to undo a regulation it didn’t like. What the CRA does is require the Executive Branch to disclose its regulations to the Congress and provide for a far quicker consideration process, thus making the whole exercise more simple and more likely to happen.

Another interesting point is that the effective date of the rule itself may depend on whether a report gets filed. 5 U.S.C. 801(a)(3) states that a major rule shall take effect 60 days after the latest date on which Congress receives the report or the rule is published in the Federal Register.  If Congress did not receive a report, is the rule not effective?

One of the most interesting questions that the CRA presents is whether the law provides for Congress to invalidate part of a “rule.” A rule means many things in the lingo of an agency. People will say that they are working on a “rule,” and the rule will contain paragraph after paragraph, page after page, of requirements. Despite the vernacular, each of those requirements is a rule.  14 C.F.R. § 417.107 is one section in the FAA regulations governing launch safety, but it alone contains many requirements, many rules. Often an agency determines what a “rule”– in the bureaucratese sense–will contain based on what is ready to change. For example, the FAA’s original spaceport requirements at 14 C.F.R. part 420 addressed a plethora of different topics, including flight safety analysis, explosive siting, coordination with Air Traffic Services, and procedural requirements. The explosive siting requirements in turned addressed the storage and handling of, and safe separation distances for, solid propellants, fuels, and oxidizers. It seems plausible that Congress could invalidate parts of a rulemaking, since so many of them deal with so many different topics. After all, Congress may do so even without the CRA, albeit more slowly.

Executive Order:  One Rule Passed, Two Rules Repealed On January 30, 2017, President Trump released an Executive Order directing agency heads to identify for elimination two regulations for every new one issued:

any new incremental costs associated with new regulations shall, to the extent permitted by law, be offset by the elimination of existing costs associated with at least two prior regulations. Any agency eliminating existing costs associated with prior regulations under this subsection shall do so in accordance with the Administrative Procedure Act and other applicable law.

As in the usual way of things, existing regulations must be repealed through the standard rulemaking process, where a proposed repeal is shared with the public for notice and comment. The E.O.’s real bite comes from its requirement that agency heads keep the total costs of new and repealed regulations to zero, unless otherwise required by law or consistent with written advice from the Office of Management and Budget. In order to achieve a total annual cost of zero, agencies must offset new regulatory costs by the elimination of existing regulatory costs. Each agency will be assigned costs caps, and OMB will provide guidance on how to implement the new order. The WSJ reports that this is not uncommon:

Canada requires every rule that creates another hour of paperwork for business compliance to be offset one for one. The United Kingdom and Australia have harder versions that require the costs of new rules to be offset by deregulation of comparable net value.

What counts as an offsetting cost? It will be interesting to see if OMB allows agencies to offset requirements without regard to the identity of the affected industry. The Federal Aviation Administration, for example, regulates both aviation and space transportation. Could the FAA achieve its annual regulatory budget by increasing costs on one mode of transportation and offsetting those new costs with savings applied to another mode of transportation? Likewise, could the Federal Communications Commission offset costs imposed on satellite services with savings on terrestrial providers?

The Order states that the “regulations” and “rules” to which it applies do not include “regulations issued with respect to a military, national security, or foreign affairs function of the United States.” Although the FAA issues its launch and reentry licenses and permits consistent with the national security interests of the United States, this Order will likely apply to the FAA’s space regulations unless it can be successfully argued that the FAA’s Office of Commercial Space Transportation has a national security function of its own. That seems unlikely.

Practioner’s Note: If one were to be trying to find out whether an agency submitted its required report on a particular rule, the Senate appears to have an accessible list here. Not being a millennial, I have not yet found the House version. If anyone has that, please let me know in comments or through my contact information and I will amend this post. Also, I found the Senate version through pure serendipity, by plugging in the name of a published FAA rule, and the link doesn’t appear to be devoted solely to reports.

 

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