The Space Show and Harmful Contamination. I am looking forward to being on The Space Show with Dr. David Livingstone this Sunday at 3 p.m. EDT. We will be talking about the applicability of the harmful contamination provision of Article IX of the Outer Space Treaty to the U.S. commercial sector. As noted in this post, the treaty’s restrictions on harmful contamination apply to government rather than private actors in outer space.
NOAA. As we have seen with other regulatory agencies, the Department of Commerce’s National Oceanic and Atmospheric Administration is requesting comments, in accordance with the President’s Executive Orders directing it to do so, on how it may streamline its regulations and guidance. Specifically, NOAA’s National Marine Fisheries Service and National Ocean Service request comment on their regulations and guidance. These Services administer laws that protect the environment, such as the Marine Mammal Protection Act, the Endangered Species Act, and the Coastal Zone Management Act. You may ask what this has to do with space law.
What this has to do with space law is that when the FAA issues a license to launch a launch vehicle or reenter a reentry vehicle, or to operate a launch or reentry site, that license is a “major federal action” under the National Environmental Policy Act, which means that the license applicant must provide extensive information to the FAA for the preparation of an environmental impact statement or assessment. Part of that information must show how the applicant will comply with the various environmental laws on the books, including those listed above. Applicants for site licenses spend a lot of money on these reviews. Accordingly, if you are a licensee or an applicant, now is your chance to have input on the regulations and guidance that implement those laws.
If you comment, you should, as NOAA strongly urges in its notice, follow a few protocols. They will make your comments easier to understand and be more persuasive and thus more effective. Cite to the specific provision in NOAA’s guidance or the Code of Federal Regulations. Explain the burden it imposes. Don’t just say it’s a burden, explain what harm it does and why and how. Even better, explain why the requirement is unnecessary or duplicative of another requirement. Maybe they’re both unnecessary. Do say why. The more detail you provide the better. Bald assertions that something is harmful won’t get you very far. When you are talking to an agency who thinks that its requirement is necessary, you have to do more than say, “nuh, uh.” That is what is called a legally insufficient comment and the agency may ignore it.
Every now and then it helps to cover certain basic information. Today we will talk about the Federal Register. (I know. Soon this blog will be guest-featured on Fun with Flags. It’s not everyone who’s waiting to be discovered by Big Bang’s Sheldon Cooper.) The Federal Register is, as everyone knows, a repository of recent regulations left by roving bands of regulators. It is also a treasure trove of transportation trivia. It publishes every week day and contains notices of proposed regulations, final rules, agency meetings, petitions for exemption, copyright royalty distributions for satellite transmissions, Coast Guard safety zones, airworthiness directives, and those mysterious self-regulating organizations that the Securities and Exchange Commission keeps mentioning. The Federal Register lets you find things and know things and tell other people about them. The Federal Register is a thing of beauty. Most importantly, it is legal notice to the world, to everyone from coal miners with pneumoconiosis to members of the military-industrial complex. If it’s in the Federal Register and it applies to you, it applies to you even if you don’t actually know about it.
The Office of the Federal Register, which runs the publication, describes it as the newspaper of the Federal Government. No actual news, however, is allowed. See 44 U.S.C. § 1505(b). Instead, the Federal Register contains:
(a) Proclamations and Executive Orders; Documents Having General Applicability and Legal Effect; Documents Required To Be Published by Congress. There shall be published in the Federal Register-
(1) Presidential proclamations and Executive orders, except those not having general applicability and legal effect or effective only against Federal agencies or persons in their capacity as officers, agents, or employees thereof;
(2) documents or classes of documents that the President may determine from time to time have general applicability and legal effect; and
(3) documents or classes of documents that may be required so to be published by Act of Congress.
44 U.S.C. § 1505(a). We can see from all this that an agency must publish its rulemakings, namely, its notices of proposed rulemakings and it final rules, because those have “general effect,” meaning they apply to groups of people, not to particular individuals. Internal agency procedures do not require Federal Register publication even though they may be of general effect for agency employees.
Paragraph (c) suspends the publication requirements in the event of an attack on the continental United States. (Not sure what that means for Hawaii).
The Federal Communications Commission is a little weird. The FCC releases its documents before they get published in the Federal Register, which means if you know where to look for them you can get a head start in, for example, commenting on a rulemaking. The deadlines on the comment period don’t start until Federal Register publication, so one gains a little time, but one must watch for the Federal Register so as not to miss the comment period on a notice of proposed rulemaking. Back in the day, law firms would send paralegals to the FCC to pick up a stack of paper to see what the FCC’s releases held. Now, you can go here for, for example, satellite issues.
When I first stared practicing law, the Federal Register arrived at my old law firm printed on cheap, thin paper, bound; the savvy lawyers in the firm would check its table of contents every day to see whether there was anything to fuss about. The Federal Register will now email you its daily table of contents. You can sign up here. Later, when I worked for the Federal Aviation Administration, and I knew about the things I cared about before they were published, I almost never checked it. I didn’t need to, but I should have, and I would have if I’d known about this email service. I truly believe that. Despite my otherwise shocking indifference, when the rules I worked on came out, I would wait until the people who logged and docketed were done with the Federal Register and fish them out of the recycling bin. I liked having paper copies for myself, and I’d pass extras along to the person in AST whose rule it was. It was a tangible sign you’d worked on something.
You do not need to be a lawyer to benefit from checking every day. If you wheel electrical power, you might care about the Federal Energy Regulatory Commission, or maybe the emission rules of the Environmental Protection Agency. If you trade in securities, you might want to know what the SEC is thinking of requiring of you so you can get your comments in on any proposed regulations. As a space lawyer, I check the Federal Aviation Administration for commercial space transportation, the Federal Communications Commission for telecommunication satellites, and for remote sensing the National Oceanic and Atmospheric Administration, which also has notices about fisheries, lots of notices. I don’t read the ones about the fish.
Sure, there’s a regulatory slow down, but that doesn’t mean nothing is happening. The Federal Register still contains notices of public meetings and other interesting things that may provide helpful parallels. Also, if you start reading the table of contents now, you’ll get in the habit while it’s easy, and then, later, be one of the first to know when something does make it through. If you are a law student taking Administrative Law you should subscribe and treat the Federal Register as a palate cleanser in between all the heavy reading. It’s kind of like Reddit. Sort of.
I don’t know, this whole topic might be too exciting for Fun with Flags.
I read John Varley in my teens. I had a subscription to Analog, or, Galaxy, it might have been; and Varley’s short stories showed up there regularly. He was really close to Heinlein in my pantheon of favorite authors. I read The Ophiuchi Hotline when it came out, and waited eagerly for Titan and its sequels.
I grew up, I went to law school, I worked for a law firm. I changed jobs and became a space lawyer for the Federal Aviation Administration and worked on commercial space transportation issues under the Commercial Space Launch Act (CSLA). (Of course, none of the views expressed here represent those of my former employer, especially the stuff about John Varley). So, about a decade ago, when I saw Red Thunder, a really fun book about a group of young people with a secret space engine trying to get to Mars before anyone else, I was very happy to pick it up.
Reading it was just heaven, until it got to a certain point: the point where our heroes agreed amongst themselves they didn’t need much in the way of regulatory approvals, aside from getting clearance from the FAA’s Air Traffic (which, if I recall correctly, everything being secret and all, I don’t think they bothered with). But, and here’s the sad part, the characters made no mention of FAA launch licensing. They only defied Air Traffic , but they should have also defied the FAA’s Office of Commercial Space Transportation.
How could John Varley have let me down like this? He could talk about Air Traffic control, but not about the licensing requirements of the Commercial Space Launch Act? What was wrong with him? Did science fiction writers have no regard for the law? Michael Flynn knew about the CSLA, and its administrators showed up as petty bureaucrats in Firestar. That was cool. He was up to snuff. But John Varley? Continue reading →
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. It 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.
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.