by Jacqueline E. Serrao with the blog faculty
If you’re unlucky enough to get stuck on the tarmac in a commercial airplane for three hours or more, be sure you’re in a New York airport when it happens. On December 20, 2007, a federal judge dismissed Air Transport Association of America, Inc.’s (ATA) challenge to New York’s airline passenger bill of rights. Starting January 1st, 2008, this unprecedented New York law requires airlines to provide food, water, clean toilets, and fresh air to passengers stuck on the ground for more than three hours. Additionally, such airlines are also now subject to fines of $1,000 per violation per passenger in civil penalties.
Sounds like basic human rights, no? ATA, and others argue not. While the U.S. District Judge Lawrence E. Kahn concluded those airline provisions are “presumed” and constitute a health and safety issue – not airline “services”, ATA argued that pro-passenger law is pre-empted by the Airline Deregulation Act of 1978. The Airline Deregulation Act of 1978 provides that States “may not enact or enforce a law … related to a price, route, or service of an air carrier…” (49 U.S.C. §41713(b)(1)).
Is the provision of food, water, clean toilets, air, considered airline “services”? Or, is it a matter of public health and safety; one of the most established areas of State police power? Well, in New York, keeping people on grounded airplanes for hours without the basic necessities is considered a public health risk.
As other States have watched New York with a curious and watchful eye, and airline delays remain prevalent, this movement is bound to spread across the rest of the country… and its courtrooms. Let’s see what 2008 brings!
Res Communis wishes you a happy holiday season. Be sure to follow Santa with NORAD tonight as he makes his worlwide dash with all those presents. While you watch, you can contemplate the exstensive aerospace law issues that accompany his trip. Happy Holidays!
by P.J. Blount with the blog faculty
NASA has mandated that the avionics software for the Ares I booster be open source (hat tip Dick’s Rocket Dungeon). The legal document under which this is done is the NASA Open Source Agreement v. 1.3. The effect is that, while Boeing will be responsible for building the initial rocket, in the future other companies will be able to bid on contracts. This is because the software infrastructure will be non-proprietary, thereby making it easier for a new company to step in and do work.
by P.J. Blount with the blog faculty
The Directorate of Defense Trade Controls (DDTC) has released a final rule governing the transfer of technical data through Technical Assistance Agreements (TAA) under the International Traffic in Arms Regulations (ITAR) (hat tip ExportLawBlog). The rule effects the transfer of data to nationals of thirds party countries under TAAs. The old rule did not allow for transfer without specific permission from the DDTC. The new rule allows the transfer if the four conditions are met:
§ 124.16 Special Retransfer Authorizations for Unclassified Technical Data and Defense Services to Member States of NATO and the European Union, Australia, Japan, New Zealand, and Switzerland.
The provisions of § 124.8(5) of this subchapter notwithstanding, pursuant to this subsection the Department may approve access to unclassified defense articles exported in furtherance of or produced as a result of a TAA/MLA, and retransfer of technical data and defense services to individuals who are third country/dual national employees of the foreign signatory or its approved sub-licensees provided they are nationals exclusively of countries that are members of NATO the European Union, Australia, Japan, New Zealand, and Switzerland and their employer is a signatory to the agreement or has executed a Non Disclosure Agreement. The retransfer must take place completely within the physical territories of these countries or the United States. Permanent retransfer of hardware is not authorized.
The Aerospace States Association is hosting a Capitol Hill Hearing on Export Controls on March 11, 2008.
Capitol Hill Hearing on Export Controls
March 11, 2008
1:00 p.m. Introduction Lieutenant Governor Brian Dubie, VT
Congressman Brad Sherman*, CA
Congressman Donald Manzullo, IL
1:30 Industry Panel
1:30 Marion Blakey, President & CEO, AIA
1:45 Pete Bunce, President & CEO, GAMA
2:00 David Logsdon, Executive Director, Space Enterprise Council, U.S. Chamber of Commerce
2:15 Academia Panel
2:30 Prof. Bob Twiggs*, Stanford University
2:45 Dr. Thomas Zurbuchen, University of Michigan
3:00 Dr. Claude Canizares, MIT
3:15 Government Panel
3:30 Joseph Rouge*, Acting Director, National Security Space Office
3:45 Jason Bolton*, U.S. Department of Commerce
4:00 Shana Dale*, Deputy Director, NASA
4:15 Media Panel
4:15 Miles O’Brien*, CNN
4:30 Tony Velucci, McGraw Hill
4:45 Lon Rains, Space News
5:00 Closing Remarks Lieutenant Governor Brian Dubie
* Invited, but not yet confirmed
The National Center for Remote Sensing, Air, and Space Law is proud to announce the The 2nd International Conference on the State of Remote Sensing Law at the University of Mississippi School of Law in Oxford, MS on 17-18 January, 2008. The cost of the event is $125, which covers meals and conference materials. A PDF of the agenda is available, and registration is open.
The 2nd International Conference on the State of Remote Sensing Law
The National Center for Remote Sensing, Air, and Space Law
Mississippi School of Law
17 – 18 January 2008
08:00 – 08:15
Welcome Dean Samuel Davis, University of Mississippi School of Law
08:15 – 08:45
Keynote Prof. Joanne Irene Gabrynowicz, Director, The National Center for Remote Sensing, Air, and Space Law Mississippi School of Law
Session I: Developments in National Legislation, Regulations, and Policy I
08:45 – 09:15 Belgium
Dr. Jean François, Mayence Lic. LLM, (confirmed)
Head, International Relations, Legal Dept., Federal Office for Science Policy, Kingdom of Belgium
09:15 – 09:45 Brazil
Hilcéa Santos Ferreira (confirmed)
Foreign Affairs, National Institute for Space Research (INPE)
09:45 – 10:45 Canada
Mr. Bruce Mann, P.Eng., Barrister and Solicitor.
Dept. of Foreign Affairs and InternationalTrade, Dept. of Justice, Canada (confirmed)
Dr. Thomas Gillon, Remote Sensing Space System Policy and Licensing Officer, NonProliferation
and Disarmament(Chemical, Biological and Conventional) Division, Dept. of Foreign Affairs and International Trade Canada (confirmed)
10:45 – 11:00 BREAK*
11:00 – 11:30 France
Dr. Philippe Achilleas (confirmed)
IDEST, Université Paris Sud
11:30 – 12:30 Germany
German Aerospace Center DLR, Head Legal and Business Support (confirmed)
German Aerospace Center DLR, Asst. to the Member of the Executive Board (confirmed)
12:30 – 13:45 LUNCH and Speaker (TBD)
Session 2: Developments in National Legislation II
13:45 – 14:15 India
Prof. Balikista Reddy (confirmed)
NALSAR University of Law, Hyderabad
14:15 – 14:45 Japan
Prof. Kazuto Suzuki
Associate Professor, University of Tsukuba (confirmed)
14:45 - 15:15 United Kingdom and EU
Prof. Ray Harris
Executive Dean, Faculty of Social and Historical Sciences, University College of London
15:15 – 15:45 United States
Mr. Glenn E. Tallia, (confirmed)
Department of Commerce/National Oceanographic and Atmospheric Agency General Counsel
15:45 – 16:00 BREAK*
Session 3: Round Table Discussion
16:00 – 17:30 Moderator, Prof. Joanne Irene Gabrynowicz
17:30 Adjourn for the day
Session 4: Remote Sensing and Litigation
08:30 – 09:30 Certifying Aerial and Satellite Data for Use in Litigation Under the U.S. Federal Rules of Evidence
Prof. Ronald J. Rychlak
MDLA Professor of Law, Associate Dean for Academic Affairs, University of Mississippi, School of Law;
Prof. Joanne Irene Gabrynowicz
Director, The National Center for Remote Sensing, Air, and Space Law Mississippi School of Law;
Mr. Rick Crowsey
President,Crowsey Incorporated, USA (confirmed)
Sovereign Corporate Symbiosis: Wilson v. Imagesat International, Shareholders’ Actions, and the Dualistic Nature of State Owned Corporations
Mr. James A. Crook
JOURNAL OF SPACE LAW, The National Center for Remote Sensing, Air, and Space Law,
Mississippi School of Law (confirmed)
Session 5: Remote Sensing and the Internet
09:30 – 10:30
Geospatial Imagery Search Engines: What People are Seeing and Why They Are Talking About What They are Seeing
Ms. Michelle Aten
Asst. Director, The National Center for Remote Sensing, Air, and Space Law, Mississippi School of Law (confirmed)
Smallsats, Tacsats, and Constellations: Imagery or Intelligence on the Internet?
Ms. Hilary Hageman (invited)
Corporate Counsel, Senior Director for Compliance CACI International, Inc.
State Role in Controlling Remote Sensing and Geospatial Information
Ms. Laura Jennings
National Geospatial Intelligence Agency, Deputy Chief, Acquisition and Intellectual Property
10:30 – 11:00 Break*
Session 6: Legal Interfaces: Remote Sensing and the Law of Intellectual Property; Privacy; and Taxations
11:00 – 12:00
The Legal Interface of Intellectual Property and Remote Sensing Law
Professor of Law, The University of Mississippi School of Law (confirmed)
A Mosquito in the Ointment: Adverse HIPPAA Implications for Health Related Remote Sensing Research and a “Reasonable” Solution
Paul M. Secunda
Jessie D. Puckett, Jr. Lecturer andAssistant Professor of Law, The University of Mississippi
School of Law (invited)
Taxation of Satellites Activities Under U.S. Federal Regulations
Associate Professor of Law The University of Mississippi School of Law (confirmed)
12:00 – 12:30 Wrap – up
* Law students will be available during breaks for brief presentations on selected
by P.J. Blount with the blog faculty
Here’s another space related snippet from the Joint Explanatory Statement to Accompany Consolidated Appropriations Amendment Division B–Commerce, Justice, Science which gives explanations about the amendments to HR 2764: Consolidated Appropriations Act 2008. It calls for Congress to grant further funding for Arecibo Observatory and to have the National Research Council do a report on NASA’s approach to Near Earth Objects (hat tip planetarydefense):
Further, the Appropriations Committees are concerned that NASA may reduce support for the Arecibo Observatory which is used by NASA to observe and detect NEOs. The committees believe that this observatory continues to provide important scientific findings on issues of near-space objects, space weather, and global climate change, as well as numerous other research areas. The Committees believe that these endeavors will have scientific merit far beyond the end of the decade. NASA is directed to provide additional funding for the Arecibo Observatory.
In order to assist Congress in determining the optimal approach regarding the Arecibo Observatory, NASA shall contract with the National Research Council to study the issue and make recommendations. As part of its deliberations, the NRC shall review NASA’s report 2006 Near-Earth Object Survey and Deflection Study – and its associated March 2007 Near-Earth Object Survey and Deflection Study as well as any other relevant literature. An interim report, with recommendations focusing primarily on the optimal approach to the survey program, shall be submitted within 15 months of enactment of this Act. The final report, including recommendations regarding the optimal approach to developing a deflection capability, shall be submitted within 21 months of enactment of this Act. The NRC study shall include an assessment of the costs of various alternatives, including options that may blend the use of different facilities (whether ground- or space-based), or involve international cooperation. Independent cost estimating should be utilized.
by P.J. Blount and the blog faculty
Debate continued today on HR 2764: Consolidated Appropriations Act 2008. Here is a snipet of space related debate from Rep. Mark Udall (D-CO):
In addition, I am glad that there is funding within NASA’s earth science account to initiate important climate research missions as well as well as an endorsement of language in the House-passed Commerce, Justice, Science appropriations report that called for continued support for climate sensors already in development. This includes the Total Solar Irradiance Sensor, TSIS, which is being built by the University of Colorado’s Laboratory for Atmospheric and Space Physics.
However, as chairman of the House Space and Aeronautics Subcommittee, I am disappointed that to construct a bill the President would sign, the higher funding levels for the National Aeronautics and Space Administration, NASA, provided in both the House and Senate bills had to be sacrificed. It is clear that Congress recognizes the value of NASA’s activities in science, aeronautics, and exploration, and I hope the President will send Congress a budget request next February that would give NASA the resources it needs to carry out its important missions.
See our report from earlier today on the same bill for some background information.
by P.J. Blount with the blog faculty
A move to consolidate 11 appropriations bills was introduced in Congress on Monday in H. Res 878 and was passed by the House. This resolution amends (H.R. 2764) and titles it Consolidated Appropriations Act 2008.
NASA appropriations are included in the bill at reduced levels than those originally passed by the House and Senate, and the controversial Mars exploration language has survived (see generally Commercial Space Watch).
It seems that the Commercial Orbital Transportation Services (COTS) dispute between NASA and Rocketplane Kistler has also recieved Congressional attention in the Omnibus bill (hat tip NASA Watch). In the Joint Explanatory Statement to Accompany Consolidated Appropriations Amendment Division B–Commerce, Justice, Science the following passage can be found:
The amended bill provides $160,000,000 for the Commercial Orbital Transportation Services (COTS) program, which is intended to demonstrate private sector technologies that could potentially resupply the International Space Station in the future. However, the Appropriations Committees note that one of the two COTS contracts is currently in dispute, and are concerned by NASA’s recent decision to re-compete the disputed contract before all challenges have been resolved. In doing so, NASA could potentially create a liability to fund three proposals instead of two as originally envisioned, increasing the costs of this program to the taxpayers. Therefore, NASA is directed not to select a new contractor until all challenges are decided. Further, the Government Accountability Office (GAO) is directed to perform a full review of COTS program expenditures and management.
If passed this couls slow NASA’s plans to recompete the portion of the funds that remained after NASA cancelled its Space Act Agreement with Rocketplane Kistler. For background check out Appealing COTS: RpK’s Avenues for Relief and NASA Moves Ahead with COTS Despite Bid Protest.
The full text of the Consolidated Appropriations amendment can be found at the House Committee on Rules website.
by P.J. Blount with the blog faculty
Congressman Dave Weldon (R-FL) announced that he would be introducing a bill that would keep the Space Shuttle flying until Orion is ready to replace it. The bill calls for $1.6 billion to speed the development of Orion, $819 to reimburse NASA for costs after Columbia, $1.2 billion to help out science projects cut in recent years, and “such sums as necessary” to keep the shuttle flying two missions a year until Orion is developed (Space Politics). This comes to a total of about $10 billion.
It should be noted that this is an authorizing bill and not an appropriations bill, so the funds are not garaunteed unless granted in an appropriations bill. Res Communis’ research shows that the bill has not yet been introduced.
Weldon ( as well as others) has been active recently with a conference amendment to keep the Shuttle flying (Res Communis).