Babin Wants Regulatory Rethink for Commercial Space

Rep. Brian Babin (R-TX) wants a complete rethinking of the government’s role in regulating new commercial space ventures like asteroid mining.  Rep. Jim Bridenstine (R-OK) has been championing an expansion of the regulatory authority of the FAA’s Office of Commercial Space Transportation (AST), an approach also endorsed by the Obama Administration. The FAA’s Commercial Space Transportation Advisory Committee (COMSTAC) will discuss a draft Bridenstine bill tomorrow.  Babin is saying wait — expanded government regulation may not be the answer.

Babin chairs the Space Subcommittee of the House Science, Space, and Technology (SS&T) Committee and gave a comprehensive address on the topic at a Commercial Spaceflight Federation (CSF) breakfast meeting this morning.  Offering historical examples of where government attempts to regulate new technologies were “ill-conceived,” he contended that other ways should be found to satisfy U.S. obligations “without stifling innovation or smothering the embers of creativity.”

The issue stems from U.S. government obligations to authorize and continually supervise the space activities of non-government entities, like companies, under Article VI of the 1967 Outer Space Treaty.  Babin defended the Treaty itself, saying it is “just as relevant today” as it was 50 years ago.  It was adopted by the U.N. General Assembly on December 19, 1966; opened for signature on January 27, 1967; and entered into force on October 10, 1967.  He characterized negotiations over the treaty in that Cold War era as reflecting two very different philosophies, communism and freedom.  “Fortunately, the United States position was accepted” and Article VI allows for non-government entities to engage in space activities freely.

Another positive feature is that the treaty does not dictate how signatories should fulfill their Article VI obligations, he pointed out, leaving it up to each nation.  Today, as innovative non-traditional space activities are emerging, the United States needs to decide what to do, but it should not quickly jump to the conclusion that more regulation is the answer. “While some may see regulations as the easiest way to ‘check the box’ on satisfying our international obligations … I would challenge all of you to explore more creative options.”

Section 108 of last year’s Commercial Space Launch Competitiveness Act (CSLCA) required a report from the White House Office of Science and Technology Policy (OSTP) recommending an approach.  The report was delivered to Congress earlier this year recommending that FAA/AST’s authority be expanded to approve “mission authorizations” for companies that want to build space stations in Earth orbit, create lunar bases, mine asteroids, or other non-traditional commercial space activities.  That approach is favored not only by OSTP and FAA/AST, but by Bridenstine who has been in the forefront of raising these issues in Congress and the space policy community.

Some of the companies interested in non-traditional space activities are represented on COMSTAC, which provides advice to FAA/AST.  It is scheduled to discuss a draft Bridenstine bill tomorrow at 3:00 pm ET via teleconference.  The meeting is open to the public (dial-in instructions are available here.)

Babin wants other options considered, however.  He feels the OSTP proposal places the burden on companies to demonstrate their consistency with U.S. obligations, foreign policy and national security when it should be the other way around.  “Instead, we should have a regime in which the private sector activities are presumed authorized and only after the government has met certain conditions can it place restrictions on an activity.”

He is particularly concerned about language in the OSTP proposal that requires interagency concurrence.  He noted that it is very similar to requirements NOAA must observe in granting licenses for commercial remote sensing satellites.  NOAA is supposed to make decisions on license applications within 120 days, but that has turned into three years for one applicant, with no information provided on who in the interagency process objects, why, or when a resolution might be forthcoming.  Babin does not want the same fate for the new non-traditional commercial space efforts.  He used the NOAA example to counterbalance arguments that FAA/AST’s authority should be expanded so companies can have regulatory certainty to ease investor concerns.  With regulations like that, he argued, uncertainty is created, not resolved.   His subcommittee held a hearing on NOAA’s commercial remote sensing license process last week (SpacePolicyOnline.com will post a hearing summary soon).

Babin cited FAA/AST’s recent approval of an application by Moon Express to launch a lunar lander as an example of how the current system can be made to work, but argued that Moon Express should have had a “framework — not necessarily predicated on federal regulations — that presumes their activity is authorized and places the burden on the government to demonstrate otherwise.”   Moon Express co-founder and CEO Bob Richards said that it took about 7 months for the company to get that approval by going to each involved government agency and voluntarily disclosing information each needed to sign off. 

“America is great because it is a country where you have the freedom to create without government permission. … Whether or not our system of values will be carried by the future pioneers of outer space will likely hinge on the degree to which America is able to unleash the awesome power of freedom and protect against government regulatory intervention.”

Babin went on to discuss Space Traffic Management (STM) and Space Situational Awareness (SSA), two other areas where expanded FAA/AST authorities are being discussed.  Babin argued that other options with greater private sector involvement should be explored.  “That isn’t to say that nothing can or should be done [by the government], just that we should be cognizant of existing authorities and consider a wide array of solutions, rather than resorting to the crutch of regulatory expansion.”

He plans “substantive hearings” once several outstanding reports required by CSLCA are delivered and “legislative solutions, if necessary.”