House Passes Legislation Creating, Reforming Commercial Space Regulation

Today the House passed the American Space Commerce Free Enterprise Act by voice vote with bipartisan support.  The bill modernizes the existing regulatory system for commercial remote sensing satellites and designates the Department of Commerce as the agency responsible for regulating new “non-traditional” commercial space activities.  Action now moves to the Senate.

House Science, Space and Technology (SS&T) chairman Lamar Smith (R-TX) led floor debate on the bill, H.R. 2809, though it was not a debate as much as an affirmation of bipartisan support.

Smith said the bill  “declares that America is fully open for business in space.” Rep. Ami Bera (D-CA), Ranking Member of the Space Subcommittee, managed the bill for Democrats and asserted that while the bill is not perfect, it “strikes a fair balance in achieving the goal of certifying non-traditional commercial space activities that don’t fit within the current regulatory structure.” However, he spelled out some changes Democrats will be seeking as the legislative process continues.

Key provisions of the bill as passed include the following:

• The Department of Commerce is designated as the “one stop shop” for regulation of commercial space activities, except for activities currently regulated by other federal agencies (the FAA for commercial launches and reentries, and the FCC for assigning radio frequencies). The Department will be the federal entity to authorize and continually supervise U.S. private sector activities in space as required by the 1967 Outer Space Treaty.  The Office of Space Commerce within the Department is assigned this responsibility.  That office already exists, but is currently part of NOAA.  It will be elevated to report directly to the Secretary of Commerce. The bill authorizes $5 million in FY2018 and FY2019 for the Office.  NOAA’s Office of Commercial Remote Sensing Regulatory Affairs is to be abolished no later than one year after the date of the bill’s enactment.
• Beginning one year after the date of enactment, no U.S. entity may operate a space object unless the Secretary of Commerce has issued a “certification” for it. Only one certification is needed for the entity to conduct multiple operations using a single space object; operate multiple space objects that carry out substantially similar operations; or use multiple space objects to carry out a single space operation.
  • The Secretary has no more than 90 days to approve or deny an application for a certification. If no action is taken within the 90 days the application is automatically approved.
  • If the application is denied, the applicant must be informed of the reasons within 10 days of the denial and Congress must be notified.
  • If the Secretary determines the application violates U.S. international treaty obligations, the Secretary may condition the proposed operation to the extent necessary to comply with those obligations, or if that is not possible, deny the application. The Federal Government shall interpret and fulfill its treaty obligations in a manner that minimizes regulations and limitations on the freedom of U.S. nongovernmental entities to explore and use space and promotes free enterprise in space.  The Federal Government shall not presume all U.S. obligations under the Outer Space Treaty are obligations of U.S. nongovernmental entities.  Guidelines promulgated by the Committee on Space Research (COSPAR) are not international obligations of the United States.  (COSPAR issues planetary protection guidelines for protecting other celestial bodies from harmful contamination by Earth spacecraft and to protect Earth from harmful contamination by material brought back to Earth from other celestial bodies, referred to as forward and back contamination.)
  • Applications for certification must include a space debris mitigation plan.
  • The holder of a certification must inform the Secretary if there are material changes to the object or its operations before launch or during the course of operations.
• The Secretary must establish a Private Space Activity Advisory Committee.  The bill sets its requirements.
• The President shall protect the interests of U.S. entity exploration and use of outer space, including commercial activity and the exploitation of space resources, from acts of foreign aggression and foreign harmful interference; protect ownership rights of U.S. entity space objects and obtained space resources; and ensure that U.S. entities operating in outer space are given due regard.
• Regulation of commercial remote sensing satellites is modernized with provisions that set stricter time limits for the government to approve license applications and makes the process more transparent. The Secretary may waive the requirement for a permit for a remote sensing system if it is ancillary to the object’s primary purpose or too trivial to require a determination.
  • As with other commercial space activities, the Secretary has 90 days to approve or reject an application or it is automatically approved.  If it is denied, the applicant must be informed within 10 days as to the reasons why . The Secretary shall consult with the heads of other agencies as the Secretary considers necessary.   The President may extend the review period for an additional 60 days to further evaluate national security implications, but only if the President notifies Congress with clear and convincing evidence of the need for the additional time.   If the Secretary determines in consultation with the Secretary of Defense that the system poses a significant threat to national security, the application may be denied.  The bill specifies what constitutes a “significant threat.”
  • The Secretary shall establish an Advisory Committee on Commercial Remote Sensing.  (Such a committee already exists, but it would be abolished along with the existing NOAA Office of Commercial Remote Sensing Regulatory Affairs.)
• The Secretary shall review the operations of space objects certified under the act to determine whether the interaction between such operations and the operations of a Federal Government space object present a substantial risk to the physical safety of a space object operated by either party.  If there is, the Secretary is to facilitate discussions and encourage voluntary agreements on solutions. Nothing in this section shall be construed to grant additional authority to the Secretary to regulate or place conditions on such activities.
• The President shall, to the maximum extent practicable, interpret and fulfill international obligations to minimize regulations and limitations on the freedom of U.S. nongovernmental entities to explore and use space.
• Nothwithstanding any other provision of law, outer space shall not be considered a global commons.
• The Comptroller General of the United States (who heads the Government Accountability Office — GAO) shall submit a report to Congress within 180 days of enactment on the pros and cons of elevating the FAA’s Office of Commercial Space Transportation to the Office of the Secretary of Transportation (where it was located prior to 1995).
• The Secretaries of Commerce and Defense and the Director of National Intelligence shall submit a report to the Advisory Committee on Commercial Remote Sensing within 180 days of enactment on whether there is a need to regulate space-based radio frequency mapping.  The Advisory Committee shall review the report within 90 days and submit its opinion directly to Congress with no review or changes by the Administration.

Improvements Bera said Democrats will seek as the bill progresses through the legislative process include ensuring that relevant federal agencies can weigh in on whether proposed commercial activities could affect the physical safety of U.S. government operations, including human spaceflight; that relevant government expertise and measures are taken to prevent harmful contamination of planetary surfaces; that national security and intelligence agency concerns are addressed; and ensuring the Office of Space Commerce has the necessary resources to do its job.

Rep. Ed Perlmutter (D-CO) raised the issue of whether the FAA rather than the Department of Commerce should be given the responsibility for regulating non-traditional space activities.  The bill assigns it to Commerce, but during committee markup of the bill last summer, Democrats argued for the FAA to take on regulation of these new space activities as had been recommended by the Obama Administration’s Office of Science and Technology Policy.   The FAA’s Office of Commercial Space Transportation already regulates commercial space launch and reentry and some argue that it should be expanded rather than creating a new bureaucracy at Commerce.  Although the Trump Administration is already moving to place the responsibility at Commerce, and this legislation does that as well, Democrats apparently remain uncomfortable with it.  Perlmutter said he hopes the discussion continues “and we can reach a consensus.”