Harris Asks Agencies for Proposals on Novel Commercial Space Regulation

At her second meeting of the White House National Space Council, Vice President Kamala Harris asked all Council members to submit proposals on how to regulate “novel” commercial space activities — those not already regulated. Last month Harris highlighted the need to create a clear, consistent, and flexible regulatory environment to attract investors and ensure U.S. leadership. The question of which agency should be in charge of overseeing these new types of space businesses has been debated for years without resolution.

On August 12, Harris met with leaders of nine companies engaged in novel commercial space activities such as satellite servicing, space stations, private astronaut missions, and satellite remote sensing in Oakland, CA. Pointing out that current space regulations were “written for a space industry of the last century,” she announced that the next Space Council meeting would address the issue.

Yesterday’s Space Council meeting at NASA’s Johnson Space Center gave some Council members and industry representatives an opportunity to voice their views, but no decisions were reached. Instead, Harris asked all 19 Council members to submit proposals to her within 180 days on how to regulate these new types of commercial space activities.

Harris said the Administration is developing “the first rules as a framework for novel space activities.”

Today, private space companies have capabilities that would have been difficult to imagine even a decade ago.  Today, private companies can dock satellites in orbit.  They can capture and move space debris out of the way of our satellites and space stations.  And soon, they will be able to repair and even build new structures while in orbit.

These novel activities will enable America’s continued leadership in space. But because these capabilities are so new, few rules currently exist to ensure that they are conducted safely, effectively, and sustainably, which is why, in consultation with civil and commercial stakeholders, our administration is currently developing the first rules as a framework for novel space activities. — Vice President Harris

As she said in Oakland, space regulations were first written in the last century. The Department of Transportation (DOT) was tasked with regulating commercial space launches and the Department of Commerce (DOC) with commercial satellite remote sensing in the early 1980s. Both agencies did just rewrite their regulations during the Trump Administration, but they remain limited to those businesses. Space launches and reentries are regulated by the Federal Aviation Administration’s Office of Commercial Space Transportation (FAA is part of DOT). Commercial satellite remote sensing is regulated by the National Oceanic and Atmospheric Administration’s Office of Space Commerce (NOAA is part of DOC).

That means getting to and from space is regulated by the FAA, but except for commercial remote sensing, what happens in earth orbit and beyond generally is not. There are a few exceptions. For example, satellites that detect radio frequency emissions from earth-based transmitters, like Hawkeye 360, are subject to electronic privacy laws. The FAA has an “informed consent” requirement for passengers on commercial human spaceflights, but is prohibited by law from writing stricter rules at least until next year. And the Federal Communications Commission (FCC), which assigns the radio frequencies needed for communications between a satellite and Earth, requires companies to deorbit satellites in low Earth orbit within 25 years of the end of their mission lifetime and it is planning to reduce that to 5 years through a proceeding underway right now.

But what is missing is an agency with regulatory authority over the growing number of other activities in earth orbit and beyond like satellite servicing, space debris removal, commercial space stations, and operations on and around the Moon, all of which are already happening or will be in the next few years.

Commercial space advocates argue that regulatory certainty is needed to attract investors. In addition, Article VI of the 1967 Outer Space Treaty requires signatories to authorize and continually supervise the space activities of non-governmental entities, such as companies.

Which agency should be assigned this “mission authorization” role has been debated for years. DOT and DOC are the top contenders because they already have some space regulatory responsibilities. (NASA is not a regulatory agency.)

The Obama Administration wanted DOT to be given that role. The Trump Administration favored DOC and then-Secretary of Commerce Wilbur Ross was eager to take it on. Congressional action is needed to authorize an agency to take on a new function like this and Congress came close to passing legislation in 2018 to create a Bureau of Space Commerce within DOC, but it was defeated for unrelated reasons.

There the matter has rested despite the accelerating growth in commercial space activity. Harris’s Oakland event last month was the first hint that the White House was ready to engage the issue. The suddenly-arranged meeting took place just a week after the FCC decided to move into other areas of commercial space regulation like satellite servicing.

The FCC is not part of the Executive Branch, though its members are nominated by the President, and basically is filling a commercial space regulation vacuum. Chairwoman Jessica Rosenworcel was invited to participate in yesterday’s Space Council meeting. She explained what the FCC is doing “to help grow the space economy and also protect space and make sure it’s sustainable,” including updating the orbital debris mitigation requirements, which will be discussed at the FCC’s September 29 meeting.

Harris invited several Space Council members to weigh in on the issue. DOT Deputy Secretary Polly Trottenberg and DOC Deputy Secretary Don Graves among others agreed on the need for regulatory certainty. Graves argued that DOC has “unique insights into innovative space operations” through its regulation of commercial remote sensing satellites and U.S. exports as well as its roles in Space Situational Awareness/Space Traffic Management and protecting intellectual property. He called for creating a “space portal” as an entry point for space enterpreneurs looking for guidance on the regulatory process.

A panel of private sector witnesses also supported Harris’s call for regulatory certainty. Ruth Stilwell from Aerospace Policy Solutions, Chris Kunstadter from AXA XL, and Babak Nikravesh from Morrison Foerster agreed that enabling an innovative U.S. commercial space industry requires a transparent, predictable and flexible regulatory environment. Kunstadter noted that insurance companies like his can incentivize clients to be “safe and responsible” in their use of space, but the government can also do that “through regulation and being a role model.”