Space Law, Separation of Powers, and Henry VIII

I don’t know a lot about UK law.  That won’t stop me from talking about it, of course, especially when it looks like the same problems visit space law on both sides of the pond, namely, questions regarding separations of powers.  In the United States we see very broadly drafted legislation in which our legislative body, the Congress, tells the agencies of the Executive Branch to license and regulate consistent with “national security” or “foreign policy” interests.  This direction cedes much legislative power to the regulatory agencies in the Executive Branch, and no one should claim surprise when its employees construe that delegation as a mandate to go farther in the exercise of their powers than Congress might have intended.

Apparently, other countries have the same problem.  In the linked story Professor Mark Elliott at Public Law for Everyone takes issue with a proposed Space Industry Bill.  The Space Industry Bill makes ‘provision about space activities and sub-orbital activities, and for connected purposes’.  Elliott considers it inappropriately broad in the powers it delegates to the Executive:

the Bill serves as nothing less than a case study in a variety of drafting techniques that are becoming increasingly common and which, individually and collectively, give rise to separation of powers concerns. It was partly for this reason that the House of Lords Constitution Committee published a report on the Bill in early September, albeit that that report did not attract quite as much attention as its latest intervention, published the previous day, in relation to the EU (Withdrawal) Bill.  There is, however, a connection between the two Bills. While the Withdrawal Bill is, without question, a uniquely egregious example of the executive seeking inappropriately broad and insufficiently controlled powers from Parliament, the Space Industry Bill serves as a more mundane example of the way in which the accretion of administrative law-making authority is becoming commonplace.

Elliott raises six concerns, one of which resembles a concern we face on this side of the Atlantic, too:  that the bill does not limit the executive’s rulemaking power.

Clause 67(1) provides that: ‘Regulations may make provision generally for carrying this Act into effect and for achieving the purpose set out in [clause] 1(1).’ And clause (1) says that the Bill has effect for the purpose of regulating space activities, sub-orbital activities, and associated activities carried out in the UK. The purpose of the Bill is thus set out in very broad terms indeed, rendering the clause 67(1) power commensurately wide. Among other things, the existence of such a power will make it relatively difficult to seek judicial review on the ground that the scope of individual powers conferred by the Bill have been exceeded. Indeed, the catch-all power in effect undercuts those limits, given that when they inconveniently apply so as to narrow specific powers in the Bill, the general power may instead be available.

Another complaint centers on the paucity of something called the affirmative procedure, where rulemaking may require the approval of both Houses of Parliament to go into effect:

while some of the regulation-making powers in the Bill are subject to the affirmative procedure, in a number of cases that procedure is required only upon the first use of the powers, subsequent uses being subject only to annulment — and so, in practice, to minimal-to-non-existent parliamentary control.

Elliott raises the concern that the executive could make regulatory changes without legislative review. The legislative review of the affirmative procedure sounds like the Congressional Review Act in the United States, although that provides for streamlining of a review process whereas the UK approach may be more fundamental.

Finally, we get to the Henry VIII power. According to the UK’s Parliament website it is quite as alarming as it sounds:

The Government sometimes adds this provision to a Bill to enable the Government to repeal or amend it after it has become an Act of Parliament. The provision enables primary legislation to be amended or repealed by subordinate legislation with or without further parliamentary scrutiny.

Such provisions are known as Henry VIII clauses, so named from the Statute of Proclamations 1539 which gave King Henry VIII power to legislate by proclamation.

How would it operate in the proposed Space Industry Bill?

the Bill provides that: ‘The Secretary of State may by regulations make provision that is consequential on any provision made by this Act.’ This broad power is a Henry VIII power because, according to clause 66(3), it can be used to ‘amend, repeal or revoke any enactment passed or made before this Act or in the same Session’. The use of Henry VIII powers normally is — and normally should — be subject to the affirmative procedure. However, this Henry VIII power is subject to that procedure only in part: it applies when regulations ‘amend’ primary legislation, but the annulment procedure applies otherwise — including, presumably, when primary legislation is repealed by regulations. It may be that ‘amend’ here is supposed to include ‘repeal’, but that seems unlikely, given that ‘amend’ and ‘repeal’ are specified separately in clause 66(3).

The professor concludes with some hope:

The fact that large volumes of delegated legislation are (deemed to be) necessary does not inevitably mean that constitutional principle [of separation of powers] must be sacrificed to the extent that it currently is. Indeed, our system, at present, is set up very poorly when it comes to the making of delegated legislation. Such legislation cannot normally be amended, meaning that it must be approved unless the nuclear option of outright rejection is to be taken; the House of Lords is subject to the threat of having its powers stripped away should it ultimately refuse to knuckle under; and Parliament in general lacks the capacity to exercise its own discretion so as to divert secondary legislation that is more than merely technical into elevated scrutiny processes.

(I think that the UK’s “delegated legislation” is somewhat akin to regulations issued by the Executive Branch in the United States.  Or, this may be another of those instances where, as Churchill or Shaw said, Great Britain and the United States are two countries separated by a common language.)

If I am reading this correctly, the UK’s proposed Space Industry Bill should receive careful scrutiny before it serves as a model for any U.S. legislation.

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Demonstrating Compliance with a Performance Standard

Performance standards are the new* “in” thing in the regulatory world. Everyone wants them. Everyone notes how they offer greater flexibility, greater opportunity for innovation, and greater speed in adopting new designs. Everyone wonders why they didn’t do them sooner.  When considering them, however, rule writers should keep in mind that the regulated people need to have some certainty as to what an acceptable demonstration of compliance might be.

What are these great things? In the regulatory world, performance standards are requirements that mandate satisfaction of a goal instead of requiring a specific design as the solution to a problem. Rather than saying that your time machine must carry six ounces of dilithium crystals for every fifty pounds of weight, the performance-based regulation says “Each time machine must possess sufficient power to return all occupants to the present.” The first version of the requirement envisions only one way of getting everyone back to the positive now, only one ratio, and only one acceptable power source for achieving that goal. The second approach focuses on the underlying goal, and allows any power source, any method, and any ratio so long as it works. Returning time travelers to the present has to work, because you can’t walk into today from yesterday but one second at a time, and if the time machine dumps you 24 hours earlier than now, you’ll stay there, possibly run into yourself, and create a temporal vortex in the time/space continuum. No one wants that.

The mandatory design solution is not without its admirers.  It’s very easy to administer:  if the time machine weighs 100 pounds, it better have 12 ounces of dilithium crystals powering it.  No one need perform any additional analysis.  It provides certainty.  It’s what the guy who invented the time machine used, and he always brought everyone back, except for the time that wasn’t his fault.  Lastly, the mandatory design solution forces manufacturers to ask for waivers and exemptions, so the Time Stream Administration can look at any deviations individually.

Nonetheless, there is a growing consensus that good government requires performance based standards for purposes of transparency, encouraging innovation, and avoiding unnecessary costs.  These are all virtues.

However, when it adopts performance based requirements, an agency should not lose sight of making all its requirements transparent.  There is one last requirement at issue, and it plays an important role in the whole process, namely, the demonstration of compliance.  At one end of the spectrum, we can be pretty sure the TSA won’t be satisfied with an applicant’s bald statement that his machine has enough power to bring everyone back.  At the very least, the agency will want to know the proposed power source and how it works.  What more would the agency want?  A computer model or actual real-time testing?  How many hours of testing or how many successful journeys would qualify a time machine using chewing gum as its power source?  Should an agency mandate reliability and confidence levels?  Should it put that out as guidance rather than a regulation?  If it does, will it wind up treating similar applicants differently?

Agencies don’t always put their demonstrations in their regulations.  One of the prettier performance standards I’ve seen is for human space flight.  In 14 C.F.R. § 460.5(b), the FAA requires that “[e]ach member of a flight crew [aboard a licensed or permitted launch or reentry] must demonstrate an ability to withstand the stresses of space flight, which may include high acceleration or deceleration, microgravity, and vibration, in sufficient condition to safely carry out his or her duties so that the vehicle will not harm the public.”  “In sufficient condition” to carry out one’s duties shows that a commercial flight crew member need not be a superhuman astronaut.  One might only need to retain sufficient consciousness to work the controls .  That the flight “may” include high acceleration suggests that all flights might not include that particular stress of space flight.  If a capsule gets to space via a balloon, the operator might not need to demonstrate to the FAA that the crew member can withstand high acceleration.  The requirement, in other words, is tailorable to the technology, and an applicant need only demonstrate that the crew can withstand the stresses of his particular vehicle.

However, what the regulation does not say is what a successful demonstration of compliance looks like.  Does the flight crew have to undergo the anticipated stresses?  How many times?  To what level of reliability?  Nine times out of ten?  99 times out of 100?  The answers to these questions may reveal hidden costs of the regulation.  While each applicant gets to make his case for his vehicle, operators of similar vehicles should be treated similarly.  One crew member should not be required to undergo hours of high acceleration while another one is subjected to only minutes.

Consistency and fairness suggest that these unwritten “requirements” be made public. If the FAA finds one method of demonstrating compliance acceptable for certain circumstances, it could let everyone else know by publishing that method in an advisory circular. (The Administrative Procedure Act also requires the publication of an agency’s opinions.) Then, other operators with a similar flight profile would know that they could follow that method without long talks with the agency.  Alternatively, that same operator might have something less costly in mind and could go to the FAA and makes it case for using a different demonstration.  That demonstration could also be shared.  Publication, of course, carries concerns regarding proprietary information, but those can be worked out.

None of this is to suggest that performance standards aren’t awesome.  They are, but no one should lose sight of the question of how much advance notice is necessary regarding the demonstrations of compliance.

*”New” is a relative term.  In the regulatory world, “new” can span a couple decades.

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An Agency’s Rulemaking Priorities for Space Transportation

An agency’s notice of proposed rulemaking (an NPRM) does not get written overnight. An agency must identify a problem, come up with its proposed solution, justify it by explaining the legality and need for it in an explanatory preamble, and subject it to a regulatory evaluation, which is bureaucrat-speak for an analysis of the costs and benefits of the proposed requirements.

Sometimes the public and industry are surprised by an NPRM. They don’t need to be. A Unified Agenda provides the public a way to learn about an agency’s rulemaking priorities. The Unified Agenda reports regulatory and deregulatory activities under development in the agencies of the federal government, but not Congress. Fall editions provide The Regulatory Plan, in which agencies state their regulatory priorities and identify their most significant regulatory activities in the coming year. An agency may also list long-term actions scheduled for more than 12 months away. They may list completed actions as well.

This page provides a space for inputting the agency you are interested in. The FAA is in the Department of Transportation, so I selected that, and it took me here. I scrolled down, and noticed rulemakings addressing both aviation and space. There is one, for example, for a rulemaking on Reciprocal Waivers of Claims for Licensed or Permitted Launch and Reentry Activities. If you click on the linked RIN number and scroll down, you’ll see that it shows links to the Federal Register notices for the NPRM and for a re-opening of the comment period. There is no link to a final rule, but it’s always good to check–using the search engine of your choice. It turns out that the final rule has been published, and may be found here.

The list contains other space rules, including one addressing risk (which we know is out as a final rule, too), civil penalties (which we can tell apply to space because the summary refers to part 460 of the Title 14 of the Code of Federal Regulations (CFR)), orbital debris (in which the FAA proposes to align its requirements with government guidelines and practices), procedures and equivalent level of safety determinations (which we know because the summary contains numerous citations to parts of 14 C.F.R. chapter III), and flight restrictions in the proximity of launch and reentry operations (which relies on the Federal Aviation Act for its authority).

From this exploration we can see that the Unified Agenda is a useful tool. It may not always provide the latest information, so double checking the status of any given item is a good idea.

 

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How to Learn about the FAA’s Risk Criteria and Calculations

I received a question from someone interested in what literature might be available for understanding the FAA’s risk criteria for expected casualties (Ec —pronounced “E sub c”), and how Ec is calculated.

One of the best ways to understand an agency’s regulations is to read the two preambles that accompany the regulations. You can find preambles in the Federal Register. You will find the FAA’s commercial space transportation regulations at Title 14 of the Code of Federal Regulations, Chapter III.  Chapter III applies to FAA licensing, permitting, and the regulation of launch and reentry vehicles and the operation of launch and reentry sites, and contains parts 400 through 460. Part 420 contains the requirements for a licensed launch site operator. Part 460 applies to human space flight. Other parts apply to expendable launch vehicles, reentry, enforcement, and financial responsibility.

An explanatory preamble accompanies an agency’s proposed new rules. Another preamble, which also discusses any comments the agency received from the public, accompanies the agency’s release of its final rules. For Ec, there are now a number of preambles that help to understand those calculations.

If you just want to understand what Ec is, the discussions of the risk requirements in part 420 for launch sites—aka spaceports—are a great place to start because they discuss two simplified versions of the calculations and thus make a good primer for newbies.  The notice of proposed rulemaking for 14 C.F.R. part 420 is here.  The final rule and disposition of comments is here.  Do be aware that these are early versions of the FAA’s risk requirements, and the FAA made  changes later, and apply to persons applying for a license to operate a launch site. Launch operators must look elsewhere.

A launch operator of expendable launch vehicles (ELVs) will be more interested in the risk requirements of 14 C.F.R. part 417, and an operator of a reentry vehicle, including reusable launch vehicles (RLVs), will find its risk criteria in parts 431 and 435.

The FAA recently changed its risk requirements for ELVs, RLVs and spaceports.  The agency proposed to do so in this notice of proposed rulemaking.  It released the final version of the new regulations and a discussion of the comments it received in this final rule.   When you are reading recent documents such as these, note the references to earlier notices of proposed rulemaking and final rules.  You may find discussions there that explain something the new regulations don’t address.

Practitioner’s Note:  When referring to the FAA’s space regulations in their entirety, do refer to 14 C.F.R. ch. III.  Do not refer to them as 14 C.F.R. part 400.  Part 400 only contains two sections, and there are many more parts.

 

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Are There Two Regimes for Commercial Space Transportation?

I received a question in response to Monday’s post that raised foundational issues: why are there are two regimes to address commercial space transportation? The writer referred to the United States Code and the Code of Federal Regulations. Not everyone who reads this blog is a lawyer, and middle school civics doesn’t really cover the administrative state, so this post will go over fundamentals. The quick answer is that there are not two regimes. The regulatory regime is a subset of the legislative regime. The regulatory regime carries out Congress’s legislative directions.

The mechanics of it all

We all learned in school that there are three branches of government. Congress, which is the legislative branch, writes the laws. The executive branch, headed by the President and consisting of all the agencies, carries out the laws. And the judiciary tells the first two if they got anything wrong when someone complains. Things are, of course, more complicated than that. Continue reading

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