Congress Looking at Additional Measures to Facilitate Commercial Space

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.