Companies Agree FAA Best Agency to Regulate Non-Traditional Space Activities

Representatives of four major companies agreed yesterday that the FAA’s Office of Commercial Space Transportation (FAA/AST) is the best federal agency to be placed in charge of regulating non-traditional space activities to ensure compliance with the 1967 Outer Space Treaty.  They also agreed that regulatory certainty is key to the success of their ventures, so although they want a “light hand” of regulation, they do want some.

Lockheed Martin, Sierra Nevada Corporation (SNC), Orbital ATK, and Astrobotics were represented on a panel organized by the Space Transportation Association (STA) that also included George Nield, the head of FAA/AST, and was chaired by Mike Gold of MAXAR Technologies.  MAXAR Technologies is the new name of MacDonald Dettwiler & Associates (MDA), which already owned Space Systems Loral and recently purchased DigitalGlobe.  Radiant Solutions is a fourth component of the newly branded company.

Debate is ongoing over how much regulation is needed to ensure that U.S. entities comply with U.S. obligations under the Outer Space Treaty’s Article VI.  It requires governments that are signatories to the Treaty to “authorize and continually supervise” activities by their non-governmental entities, like companies.

In response to direction from Congress in the 2015 Commercial Space Launch Competitiveness Act (CSLCA), the Obama Administration’s Office of Science and Technology Policy (OSTP) considered the issue of which agency should take the lead in regulating non-traditional space activities such as asteroid mining, commercial space stations, and satellite servicing.  Currently, FAA/AST regulates launches into and reentries from space, NOAA regulates commercial remote sensing satellites, and the FCC assigns radio frequencies and geostationary orbital slots.  What agency should oversee the new activities is the question.

OSTP recommended hat FAA/AST be designated as the lead agency for “mission authorizations,” but no legislation passed by end of the Obama term doing so.  This year, the House Science, Space, and Technology Committee approved legislation that would assign that role to the Department of Commerce.  At the panel discussion yesterday, Orbital ATK Staff Vice President Jim Armor revealed that the FCC provided that authorization for Orbital ATK’s satellite servicing mission scheduled for launch one year from now.

The lack of a single entity with that responsibility creates uncertainty for the companies planning to engage in non-traditional activities according to the panel.  Nield argued that without regulatory certainty, companies would be left with the choice of slowing down their activities while the government determined what to do, proceed anyway with the risk that someone in the government will tell them later they are not allowed to do something, or take their activities to another country where there is greater regulatory certainty, like Luxembourg.

Jennifer Warren,Vice President for Technology Policy and Regulation at Lockheed Martin, MaryLee Pollitt, Trade Compliance Analyst at SNC, Armor from Orbital ATK, and Dan Hendrickson, Vice President of Business Development for Astrobotics agreed on several major points:

• Regulatory certainty is needed so companies can quantify the risks of proceeding with new types of space activities.
• Companies need a clear designation of who in the U.S. government has supervisory authority under Article VI and FAA/AST should be that entity because it already has an excellent track record.  Warren said it has the right mindset and culture to encourage such activities.
• While regulation is needed, it should be with a light touch.
• The Outer Space Treaty should not be abandoned or modified.  Warren stressed that the fact that it provides sufficient flexibility for countries to determine their own methods for assuring compliance should not be “underestimated.”

As an example of the current confused process, Armor detailed the steps that Orbital ATK went through to get approval for its satellite servicing mission, Mission Extension Vehicle-1 (MEV-1), which will be launched a year from now on a Proton rocket.   They involved the FAA/AST for a launch and payload review, NOAA for a remote sensing license because the cameras on the system used for proximity operations see Earth in the background, agencies involved in the ITAR export control process, and the FCC for radio frequencies.

Armor said the company was surprised that it needed the NOAA commercial remote sensing license and noted that in August NOAA changed its rules.  Now Orbital ATK also will have to get written consent from the owner/operator of any other satellite the system might inadvertently image or, if it does not have approval, purge the data, which he says is not possible.  Thus, operational plans for MEV-1 are in “disarray.”  He called for the government to have a single entity — a clearinghouse — where companies can go to get requisite approvals and argued FAA/AST should be that entity.  He also said it would be helpful to speed up the process, noting that it has taken 7 years to get to this point.

Most of the discussion dealt with obtaining authorization to proceed with a mission, but the Treaty also requires “continuing supervision” of those activities. Gold commented that there are no two words in the English language that worry him more than those.  The term is vague.  Nield said it will need to be more than a company submitting a plan that gets put on a shelf.  Continuing engagement will be required between a company and the government as missions progress and changes are made, but the process should not be burdensome.  Warren pointed out that there needs to be an obligation to report anomalies, for example, because the space environment needs to be safe for everyone to operate in, with billions of dollars of investments at stake.

As to whether that could impose a burden on companies, some of the panelists said it would not be very different fom what is already required under other regulatory policies, like export controls.  Pollitt pointed out that many companies have internal compliance departments already to handle regulatory matters.  Asked if that could be a problem for smaller companies getting started in non-traditional space activities, Hendrickson said no because all companies have to be responsible actors.