Bridenstine: Legislation Necessary to Regulate New Types of Commercial Space Activities

Rep. Jim Bridenstine (R-OK) used a teleconference meeting of the FAA’s Commercial Space Transportation Advisory Committee (COMSTAC) today to explain why he believes legislation is indeed necessary to ensure that the U.S. government complies with the 1967 Outer Space Treaty in authorizing and continually supervising U.S. companies engaged in non-traditional commercial space activities.  His draft legislation was the topic of the teleconference, a timely discussion coming just one day after Rep. Brian Babin (R-TX) expressed a very different point of view.

The COMSTAC meeting was announced weeks ago with the single purpose of discussing Bridenstine’s draft legislation.  COMSTAC advises the FAA’s Office of Commercial Space Transportation (AST).  Its members represent many of the companies involved in both traditional and non-traditional space businesses. Mike Gold, Vice President of Washington Operations for SSL (formerly Space System Loral), chairs the committee, which reports to FAA/AST Associate Administrator George Nield. 

The purpose of the telecon was to allow government experts — from Bridenstine’s office and executive branch agencies — to explain to COMSTAC’s industry members what the draft legislation would do and why, and get their input.

Bridenstine, Nield and Gold have been in the forefront of an ongoing debate over how to create a U.S. regulatory system that facilitates new space ventures like private space stations or asteroid mining while complying with U.S. obligations under the Outer Space Treaty (OST).  Article VI of the OST requires governments to authorize and continually supervise the activities of their non-governmental entities, like companies.

Until recently, private sector space activities fell under existing regulatory authorities established by law: FAA (launch and reentry), the Federal Communications Committee (spectrum use), or NOAA (commercial remote sensing).   No agency has yet been designated, however, to regulate new commercial space ventures to put space stations in Earth orbit, send spacecraft to the Moon, Mars and asteroids, perform on-orbit satellite servicing, or a host of other non-traditional space businesses.  Many of those companies argue that potential investors want to know what the regulatory environment will be before putting their money on the table.  They want the government to make decisions now.

Moon Express, which plans to launch a lunar lander next year, recently received government approval using the interagency payload review process currently implemented by FAA/AST, but it took 7 months and is only for that one launch.  It did not set a precedent for future such endeavors by Moon Express or other companies.

Bridenstine has been a leader in Congress in drafting legislation to address these issues and advocates for the FAA to be assigned the role of issuing “mission authorizations” for non-traditional space activities.  He personally participated in the telecon today along with Christopher Ingraham, his staffer working on these issues.   Bridenstine explained that his top concern is that a U.S. company will proceed with a plan to put a spacecraft on the Moon or conduct on-orbit servicing or some other new type of activity only to have a “near-peer” country like Russia or China complain at the last minute that the United States is violating the OST.  That would put the United States “in a difficult position,” he argues. Therefore he sees the need for “airtight” legislation that sets up a process by which the government authorizes and supervises these private companies.  Once a company has gone through the process, the United States can unequivocally demonstrate to the international community that it has, in fact, complied with the treaty.  

The Obama Administration has been open to working with these new companies, but he wonders if that will remain true over the long term future.  He insisted that Congress “needs to exert its authority and power so that whatever administration comes next or is in place 50 years from now, the process exists” and is not subject to a new administration’s “whims.”  He also worried that without a legislative solution, it could become a matter of “executive branch regulation by default.”  That opens the possibility of some agency saying no, with no recourse for the private sector.

Others participating in the telecon brought up another concern — that an agency other than FAA, with less experience in a broad range of commercial space businesses, might decide that it wants to regulate these new commercial space activities and “fill the void.”  Several mentioned that the FCC apparently is indicating such an interest.   Ingraham said that he has heard over the past few months that FCC wants to regulate on-orbit servicing and space traffic management, for example.

The State Department and the White House Office of Science and Technology Policy (OSTP) have been closely involved in these issues.  OSTP’s Ben Roberts stressed that the Obama Administration’s interest is not to add regulations or burden companies, “but to make it easy for us to say yes.”  Section 108 of the last year’s Commercial Space Launch Competitiveness Act (CSLCA) required OSTP to submit a report on how to deal with these issues and recommend a solution.  It sent the report to Congress earlier this year along with draft legislation to implement it.  It proposed that the FAA’s parent, the Department of Transportation (presumably delegating it to FAA), be assigned the role of issuing mission authorizations for these new types of commercial endeavors using an “enhanced” payload review process.  Roberts said today that OSTP is not wedded to that proposal, however.  “We’re not tied to a particular solution,” but need a mechanism that allows the government to authorize such activities “clearly and crisply,” he said.

It is the State Department that must explain to other countries how the United States is fulfilling its treaty obligations and thus has a keen interest in these issues.  Brian Israel of State’s Office of Oceans, International Environmental and Scientific Affairs, said one problem State has today is that under the interagency process for payload reviews it can only can say “yes” or “no,” not “yes, but.”   Although it may agree with what an applicant wants to do, it cannot set conditions, approving the application as long as a company takes certain actions.  For example, the State Department could say yes to the Moon Express application because it is launching a technology demonstration mission with limited capabilities and the company proactively agreed to abide by international planetary protection requirements, but that might hold true for a future application, he said.

A number of the COMSTAC members expressed reservations about various provisions in Bridenstine’s draft bill, however.  Bridenstine assured them that additional input is welcomed.  He also acknowledged that there is little time left in this session of Congress to get such legislation passed and he may wait until the next session to introduce it. 

Others see a need for more immediate action.  In an interview after the telecon, Gold told SpacePolicyOnline.com that “there are no three words more pernicious to commercial space operators than ‘continuing government supervision’ and we need to take rapid action to lock in a benign light-touch regulatory approach” as exemplified in the Bridenstine draft bill.  Gold, who worked for Bigelow Aerospace until recently, is a veteran of the years-long effort to get relief for commercial communications satellite companies from stringent International Traffic in Arms Regulations (ITAR) put in place at the turn of the century. He sees many parallels between the ITAR debate and this discussion.

Laura Montgomery, a former FAA attorney now in private practice, challenged this entire approach to these issues, however.  She is not a member of COMSTAC, but the public is allowed to participate in these meetings.  She argued that the treaty creates obligations for the government, not the private sector.

Her comments were along the same lines as those of Rep. Babin at a Commercial Spaceflight Federation breakfast yesterday. Babin argued that 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.  He thinks there should be a presumption that the private sector activities are authorized and the government should only become involved if it has met certain conditions.

COMSTAC plans to continue the discussion about Bridenstine’s draft legislation at its October meeting.  Gold said that Observations, Findings and Recommendations (OFRs) might be adopted at that time to provide COMSTAC’s formal views to FAA/AST.