Draft Bill Would Give Commerce, Not FAA, "Mission Authorization" Function

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.