The Senate Commerce, Science, and Transportation space subcommittee has held two hearings seeking input on what more the commercial space industry needs legislatively to further its aspirations in exploiting space. The Commercial Space Launch Competitiveness Act (CSLCA) became law in 2015 and industry has a list additional provisions they believe could help, and apparent consensus on one that would not – changing the 50-year old Outer Space Treaty (OST).

The titles of both hearings began “Reopening the American Frontier” – evoking the country’s westward expansion in the 1800s. The April 26 hearing focused on reducing regulatory barriers while the May 23 hearing looked specifically at how the OST helps or hurts American companies.

The House Science, Space and Technology (SS&T) Committee held its own hearing on reducing regulatory barriers, which also included debate about the OST, in March. Right now, three key members of the House SS&T committee involved in space policy are circulating draft legislation that would assign most responsibility for regulating commercial space activities to the Department of Commerce (DOC). DOC currently regulates commercial remote sensing satellites – a topic on which House SS&T held a hearing last fall.

The bottom line of all the congressional activity is that there is strong support for U.S. companies that want to engage in commercial space endeavors, especially innovative “New Space” ventures like emplacing habitats in space or on the lunar surface, satellite servicing, and asteroid mining. A consensus seems to exist that the federal government should impose only a light hand of regulation – just enough to satisfy potential investors worried about the regulatory environment such ventures face and to ensure the U.S. fulfills its obligations under the OST. An often used phrase is “maximum certainty with minimal regulation.”

What is lacking is agreement on what the U.S. government is or is not required to do to fulfill its treaty obligations or what government agency should be in charge of whatever regulations are put in place.

The legal debate over what is required by the OST is intricate. Basically there are two schools of thought. One professes that because the treaty is not “self executing,” its provisions apply to the private sector only if Congress takes action to make it so. Otherwise the private sector is free to do whatever it wishes – “permissionless” regulation. The other asserts that treaties must be implemented based on their “plain meaning.” Article VI of the OST states that “[T]he activities of non-governmental entities in outer space … shall require authorization and continuing supervision” by the government that signed the treaty. The plain meaning of that, they argue, is that governments must give permission for a commercial (“non-governmental”) activity to take place and continually supervise it.

While there was no agreement on that score at any of the hearings, the Senate hearing in May focused on a somewhat different question – has the 50-year-old OST been so overtaken by events that the United States should withdraw from or seek to renegotiate it. None of the witnesses supported either of those courses of action preferring to focus on what Congress could and should do to resolve the issues domestically.

The following companies were represented at the April 26 Senate hearing: Bigelow Aerospace (Robert Bigelow), Blue Origin (Rob Meyerson), Made in Space (Andrew Rush), and Galactic Ventures (George Whitesides). Galactic Ventures includes Virgin Orbit, Virgin Galactic, and The Spaceship Company. Companies at the May 23 hearing were: Space Systems Loral (Mike Gold), Planetary Resources (Peter Marquez), and Moon Express (Bob Richards). Also testifying on May 23 were Pamela Melroy, recently retired from DARPA where she led the satellite servicing technology development program, and three space law experts (James Dunstan, Mobius Legal Group; Laura Montgomery, Ground Based Space Matters; and Matthew Schaefer, University of Nebraska College of Law).

Among the measures advocated by one or more of the witnesses at those hearings were the following:

• Make permanent the FAA’s authority to indemnify commercial space launch companies against certain third party claims, which expires in 2025 (Galactic Ventures);
• Maintain the “learning period” for commercial human spaceflight through 2023 during which time the government may not impose further regulations (Galactic Ventures);
• Implement a consistent national legal environment of informed consent requirements for commercial human spaceflight to avoid potentially conflicting state laws and legal interpretations (Galactic Ventures);
• Streamline the regulation of hybrid launch systems that involve both aircraft and spacecraft (Galactic Ventures);
• Streamline the licensing of, or implement new regulatory guidelines for, space support vehicles for hire like Virgin Galactic’s WhiteKnightTwo aircraft (Galactic Ventures);
• Streamline the process within the FAA – between the Air Traffic Organization (ATO) and the Office of Commercial Space Transportation (AST) – for integrating space traffic into the National Airspace System  (Galactic Ventures);
• Provide sufficient funding to AST so it can do its work efficiently and effectively (Galactic Ventures);
• Review and revise government acquisition processes for commercial services to emphasize rapid procurement of innovative capabilities (Galactic Ventures);
• Refrain from allowing government-funded programs to compete directly with commercially available or emerging services (Galactic Ventures);
• Maintain the policy of prohibiting commercial use of excess ballistic missiles (Galactic Ventures);
• Fill vacancies on the Export-Import Bank’s Board of Directors so it can restore normal operations (Galactic Ventures);
• Continue to review and update the International Traffic in Arms Regulations (ITAR) and modernize the Missile Technology Control Regime (MTCR) to avoide stifling American innovation or business (Galactic Ventures);
• Make decisions about how to transition from the International Space Station to commercial space stations (Bigelow Aerospace);
• Align Air Force and FAA requirements for obtaining approval for reusable launches and landings instead of the current duplicative system (Blue Origin);
• Designate the FAA as the single point of contact with sole authority to regulate commercial launches and reentries regardless of location or type of launch (Blue Origin);
• Affirm that intellectual property developed in space by companies, whether in a commercial or government facility, will be held by the company that creates it (Made in Space);
• Clarify how the U.S. government interprets and fulfills its obligations under the Outer Space Treaty, but do not withdraw from it or try to open it for renegotiation (consensus of the witnesses at the May hearing);
• Establish a predictable, transparent, efficient process that provides certainty for investors and companies seeking to engage in commercial space activities (Moon Express, Space Systems Loral); and
• Modify the current regulatory system at AST rather than setting up new bureaucracies and processes at another agency (Space Systems Loral).

Subcommittee chairman Sen. Ted Cruz (R-Texas) ended the May hearing by saying it is the committee’s intention to move forward with legislation to create a system that incentivizes investment and maximizes the potential of space.

As noted, three House members are circulating their own draft legislation that would assign most regulatory responsibility for commercial space regulations to the Department of Commerce, although it envisions very little regulation at all. The bill has not been introduced yet, but could be at any time.

Strictly speaking, legislation is supposed to follow a process where a bill is introduced and referred to one or more committees that hold hearings followed by markups. The bill is then reported from committee, usually with a written text that explains the committee’s intent. Then the bill is debated on the floor of the House or Senate and passed (or not). In the past several years, however, it has become commonplace for bills to be introduced and go directly to the floor, with any negotiations taking place behind closed doors. Time will tell which path any new commercial space legislation will take.

NOAA’s FY2018 budget request shows a sharp decline in spending for its satellite programs.  Some of that is due to planned reductions as development programs ramp down, but the Polar Follow On program would suffer a significant cut and plans for new space weather satellites would not materialize. 

NOAA operates the nation’s civil geostationary and polar-orbiting weather satellites.  For years, it has been developing a new generation of Geostationary Operational Environmental Satellites (GOES) through the GOES-R program, a set of four satellites (GOES-R, -S, -T and -U).   GOES-R itself was launched last year and redesignated GOES-16, but the series is still referred to as GOES-R.  The budget for that program declines steeply from $753 million appropriated in FY2017 to $519 million requested for FY2018, but it is a planned reduction that was projected in last year’s budget.

NOAA is also building a new generation of polar-orbiting weather satellites – the Joint Polar Satellite System (JPSS).  That program is also ramping down as launch of JPSS-1 nears.  It is scheduled for September 2017.  The FY2018 request for JPSS is $776 million, compared to $787 million appropriated for FY2017. 

The JPSS program funds only the first two satellites in the series, however.  The next two spacecraft, JPSS-3 and -4, are called the Polar Follow On (PFO) program. The FY2018 request is for only $180 million, a sharp drop from the $329 million it received for FY2017 and the $586 million that was projected for this program last year.  Projections for the next four years now are shown only as “TBD.”

NOAA’s budget documentation says the agency will “initiate a re-plan” for PFO and “work to improve its constellation strategy considering all the polar satellite assets to ensure polar weather satellite continuity while seeking cost efficiencies, managing and balancing systems technical risks and leveraging partnerships.”

NOAA also is responsible for providing operational space weather data on solar activity that can affect space and ground systems.  It operates the Deep Space Climate Observatory (DSCOVR) and began planning for new satellites to replace it.  The FY2017 budget request called for initiating a new Space Weather Follow-on program of two satellites, the first of which would be launched before DSCOVR exceeds its design lifetime.  The budget request was $2.5 million and Congress doubled that to $5 million.  The projection was for the Space Weather Follow-on to get $53.7 million in FY2018 and ramp up thereafter.  Instead, the FY2018 request is only $500,000.  The Senate just passed the bipartisan Space Weather Research and Forecasting Act (S. 141) to improve space weather forecasting, although it focuses on agency roles and responsibilities, not funding.

The budget request supports NOAA’s commercial weather data pilot program, though only at $3 million compared to the $5 million appropriated for FY2017.  It also supports ground systems for radio occultation data (COSMIC-2), but not new satellites.

A draft bill being circulated for discussion would assign to the Department of Commerce (DOC) responsibility for registering non-government space activities to ensure, among other things, compliance with U.S. treaty obligations.  For more than a year, the FAA’s Office of Commercial Space Transportation (FAA/AST) has been in the forefront of such discussions.  The draft bill instead would consolidate most of the government’s authority for overseeing commercial space activities in DOC’s Office of Space Commerce and elevate that office to a higher level in the department.

The draft American Space Commerce Free Enterprise Act of 2017 is a comprehensive commercial space regulatory streamlining bill being circulated for comment by Reps. Lamar Smith (R-TX), Brian Babin (R-TX) and Jim Bridenstine (R-OK).  Smith chairs the House Science, Space, and Technology Committee.  Babin chairs its Space Subcommittee.  Bridenstine is a member of both and a candidate to become the next NASA Administrator. 

Last year, Bridenstine was championing the idea of expanding FAA/AST’s responsibilities to include what is sometimes called “mission authorization” — providing the authorization and continual supervision of non-governmental space activities required by Article VI of the 1967 Outer Space Treaty. It was also the position of the Obama White House’s Office of Science and Technology Policy (OSTP), which was required by the 2015 Commercial Space Launch Competitiveness Act (CSLCA) to submit a report to Congress with recommendations on how to fulfill those treaty obligations.  OSTP submitted the report on April 4, 2016.  FAA is part of the Department of Transportation (DOT) and OSTP recommended that DOT take on the mission authorization task.

SpacePolicyOnline.com obtained a copy of the new draft legislation.  It does not use the term “mission authorization,” but the function would be assigned to the Department of Commerce instead of FAA.  The bill is much more far-reaching, however.  It basically would reset U.S. government oversight and regulation of commercial space activities, consolidating most of it at Commerce and giving the department only a very light regulatory hand.

In a written statement to SpacePolicyOnline.com, Bridenstine said that although his American Space Renaissance Act (ASRA) last year called for expanding FAA’s regulatory role, he now is supporting the approach proposed in this draft legislation.  “I laid out one legislative solution in [ASRA], but my objective over the past several years has been to find a solution that can gain a consensus on Capitol Hill and achieve that policy outcome.  Working closely with Chairman Smith and Chairman Babin, we have developed proposed legislation to create certainty with minimal regulatory burden for the commercial space industry.  This is a strong starting point and I look forward to working with the chairmen and stakeholders to strengthen the bill.”

Responsibilities today are split.  FAA/AST regulates and facilitates commercial space launch and reentries (but not what takes place in space).  The Federal Communications Commission (FCC) assigns radio spectrum to commercial satellite operators ensuring compliance with International Telecommunication Union (ITU) requirements and promulgates space debris mitigation regulations. NOAA, part of the Department of Commerce, licenses commercial earth remote sensing satellites.

The Office of Space Commerce (OSC) also is part of NOAA.  Created in the 1980s, originally it was part of the Secretary of Commerce’s office, but later was renamed the Office of Space Commercialization and transferred to NOAA, one of the dozen bureaus and offices in the Department.  CSLCA restored its original name and this bill would restore its original status.  Instead of being part of NOAA and headed by a director appointed by the Secretary of Commerce, the office would be physically located at the same place as the Secretary of Commerce and headed by an Assistant Secretary of Commerce for Space Commerce appointed by the President with the advice and consent of the Senate.  That person would report directly to the Secretary.

Today, OSC is a very small office with a budget in the hundreds of thousands rather than millions.  It is responsible for promoting commercial space activities, but its budget in FY2015 and in FY2016 was only $600,000.  The Obama Administration requested a $1.4 million increase for FY2017, bringing the total to $2 million, but Congress provided only $200,000 of that increase, giving the office a total of $800,000 for FY2017.

The revitalized OSC envisioned in this draft legislation would play a much bigger role.  U.S. non-governmental entities would need to register their activities with OSC, which could accept or deny the registration based on strict rules and timetables established in the bill.  For example, the Secretary of Commerce would have 60 days to approve an application or not.  If it is disapproved, a clear explanation must be provided and the applicant may reapply to address the shortcomings.  If the Secretary does not act within 60 days, the application is automatically approved. The Secretary could waive registration for a space object if it is “too
trivial or minor to merit consideration” or would be operated in
conjunction with another space object that is registered. 

Once a registration is approved, no other part of the government could prevent launch or reentry on the basis of national security, foreign policy, or U.S. international obligations. It is solely the Secretary of Commerce’s responsibility to determine if the proposed activity conforms with U.S. international obligations such as preventing the launch of nuclear weapons or weapons of mass destruction, as required under the Outer Space Treaty.  In a sense, this is the mission authorization function envisioned by OSTP, although it is not called that in the draft bill.

The FAA/AST would retain its role in regulating commercial space launch and reentries, but no longer could review U.S. payloads for anything other than safety.  Its current authority to review payloads for safety, national security, foreign policy and international obligations would apply only to foreign payloads under this draft bill. The FCC would still assign radio spectrum, ensure compliance with ITU international obligations, and regulate communication satellite operations, but no longer would be involved in on-orbit space debris or end-of-life satellite operations or ensuring compliance with any U.S. foreign obligations. NOAA’s Office of Commercial Remote Sensing Regulatory Affairs would be abolished, with OSC taking on those duties.

The House Science, Space, and Technology Committee has already held several hearings on commercial space topics over the past year or so, including regulation of commercial remote sensing satellites. That committee took the lead in crafting and passing existing law on that topic — the 1992 Land Remote Sensing Policy Act.   Despite its best efforts to set time limits on how long the government can take to approve applications to build, launch and operate commercial remote sensing satellites, however, national security agencies have “stopped the clock” on some applications, turning what should be a 120-day process into one that can take years.  Much has changed in the commercial remote sensing satellite marketplace since 1992 as well, making the regulatory environment ripe for review.

This draft legislation would streamline that process.  It states as U.S. policy that “to the maximum extent practicable, the Federal government shall take steps to protect the national security interests of the United States that do not involve regulating or limiting the freedoms of United States non-governmental entities to explore and use space, which shall include Federal government agencies mitigating against any threats to national security posed by United States citizen exploration and use of outer space by changing Federal government activities and operations.”

The Secretary of Commerce, and only the Secretary of Commerce, is authorized to permit U.S. entities to operate commercial remote sensing satellites: “No other agency has the authority to authorize, place conditions on, or supervise space-based remote sensing systems.”  Furthermore, the Secretary may not place conditions on the permits approved for such U.S. systems if substantially similar capabilities are already available or expected to become available in 3 years from other domestic or foreign commercial sources.  As with the other commercial space activities, the Secretary has 60 days to make a decision or the permit is automatically approved.  If the Secretary determines the system poses a “significant” national security threat, the permit may be granted with conditions to ameliorate those concerns, or denied.  The word significant is defined as imminent, cannot practically be mitigated by changes to federal government activities or operations, and is not currently presented by a foreign actor or expected to be within 3 years.

This draft bill builds on hearings already held by the committee, including one in March that aired different points of view on how to ensure U.S. compliance with the Outer Space Treaty.  Whether the committee will hold a hearing specifically on this bill or not remains to be seen.  The purpose of circulating the discussion draft is to gather input from those who would be affected by it and then determine the next steps.