Senate Bill Puts DOT in Charge of Non-Traditional Space Regulations, Extends ISS to 2030

A new Senate bill, the Space Frontier Act, would put the Department of Transportation (DOT) rather than the Department of Commerce (DOC) in charge of authorizing non-governmental space activities not already regulated under other federal law.  It is at odds with legislation in the House and space policy directives signed by President Trump.  The legislation would also keep the International Space Station (ISS) operating until 2030 instead of 2025 as the Trump Administration proposed.

The bill, S. 3277, has bipartisan co-sponsors:  Sen. Ted Cruz (R-TX), Sen. Bill Nelson (D-FL), and Sen. Ed Markey (D-MA).  Cruz chairs the Space, Science, and Competitiveness subcommittee of the Senate Commerce, Science, and Transportation Committee.  Markey is the top Democrat (“Ranking Member”) on that subcommittee.  Nelson is the Ranking Member on the full committee.

The emergence of companies interested in pursuing non-traditional commercial space activities such as robotic lunar landers, asteroid mining, or satellite servicing has forced the issue of what government agency is in charge of regulating such activities.  Article VI of the 1967 Outer Space Treaty requires governments to “authorize and continually supervise” the activities of their non-governmental entities, like companies.  In the United States, however, existing law governs only a small segment of commercial space activities — commercial space launch and reentries regulated by DOT and commercial remote sensing satellites overseen by DOC — not the new non-traditional endeavors.

Companies have been urging the government to settle on a regulatory regime for their non-traditional space activities.  They argue that not only do they need to know what steps they must take to get government approval, but potential investors are reluctant to sign up without knowing what regulatory risks the endeavor may face.

During the Obama Administration, a consensus was emerging in the Executive Branch and among affected companies that DOT’s Office of Commercial Space Transportation (AST) within the Federal Aviation Administration (FAA) should be expanded to include authority to grant permission or “mission authorization” for non-traditional space activities.

Time ran out before that could be implemented, however, and the Trump Administration instead chose DOC.  Through two Executive Orders, Space Policy Directive-2 (SPD-2) and Space Policy Directive 3 (SPD-3), President Trump is assigning most commercial space regulatory responsibilities to DOC with the goal of making it a one-stop shop for companies engaging in commercial space activities.  The term is a bit misleading because DOT would continue to regulate commercial space launches and reentries and the Federal Communications Commission (FCC) would continue to assign radio frequencies. Otherwise, however, DOC would be in charge of commercial space activities not already regulated by other agencies.

In addition, DOC would assume responsibility from the Department of Defense (DOD) for sharing Space Situational Awareness (SSA) data with non-military entities and eventually be in charge of Space Traffic Management (STM) with the authority to compel satellite operators to move their satellites to avoid collisions, for example.  Secretary of Commerce Wilbur Ross has announced plans to establish a Space Policy Advancing Commercial Enterprise (SPACE) Administration within the Department to manage these new responsibilities.  He is also beefing up the Department’s Office of Space Commerce and recently named a new Director, Kevin O’Connell.

The directives require DOT and DOC to streamline and update their existing commercial space regulations.

The House is aligned with the Administration on these issues. It passed one bill, the American Space Commerce Free Enterprise Act, H.R. 2809, in April. The House Science, Space, and Technology Committee approved another, the American Space SAFE Management Act, H.R. 6226, last month.  It is awaiting floor action.

The new Senate bill also requires existing regulations to be updated and streamlined, as well as elevating FAA/AST by creating a new, higher-level position of Assistant Secretary for Commercial Space Transportation.

It is at odds, however, with the White House decision to make DOC the one-stop shop for commercial space regulation.  Regulating non-traditional space activities would reside at DOT.  The bill allows DOT to use its existing payload review process to authorize “non-governmental space activities that are related to an application for a license or permit … not subject to authorization under other Federal law.”

That basically is how Moon Express obtained approval in 2016.  The company plans to send robotic spacecraft to the surface of the Moon and was the first to get a “favorable payload determination” from FAA/AST for a non-traditional commercial space activity.  Moon Express Founder and CEO Bob Richards has explained the lengthy, complex route using the FAA/AST payload review process as the mechanism for getting approvals from a variety of government agencies one at a time.  The process took seven months and the government made clear it was a one-time approval, not a precedent for the future.

The Senate bill would change that and make it standard practice.

Asked today about the Senate bill, Richards told SpacePolicyOnline.com that his company appreciates the efforts of the bill’s co-sponsors to address the issue “in a practical way” and reaffirm the method it used in 2016, but “we encourage Congress and the Administration to continue to look for a long term permanent solution that creates a permissive framework for commercial space enterprise beyond low Earth orbit.”

Commercial Spaceflight Federation (CSF) President Eric Stallmer said via email that CSF appreciates the time the co-sponsors put into the bill and “we look forward to continuing to work with them on modernizing our industry’s outdated regulations without disrupting the critical reform efforts that are currently underway at DoT and DoC.”

The bill has a number of other provisions, some of which address how long the government should operate ISS.  ISS has been permanently occupied by crews rotating on roughly 4-6 month schedules since November 2000.  Congress designated the U.S. portion of ISS as a “National Laboratory” in the 2005 NASA Authorization Act.  The non-profit Center for the Advancement of Science in Space (CASIS) manages research aboard the National Lab.

The Trump Administration wants to end government support of ISS in 2025 so it can use some of the approximately $4 billion per year ISS budget for future human exploration projects such as returning astronauts to the Moon.  It anticipates that NASA’s research requirements in low Earth orbit (LEO) can be met by leasing services from commercial companies operating their own space stations in LEO thereafter, but many question whether the private sector will be ready by then.

Cruz and Nelson insisted at a hearing earlier this year that Congress, and only Congress, will determine when to end government funding for ISS.  Cruz represents Texas, the location of NASA’s Johnson Space Center, which is home to NASA’s astronaut corps and Mission Control. Nelson represents Florida and NASA’s Kennedy Space Center and the Air Force Eastern Test Range.  Most U.S. cargo missions to ISS are launched from Florida as will commercial crew flights once they begin.  Both Cruz and Nelson are up for reelection this year.

Nelson is one of the strongest NASA human spaceflight supporters in the Senate, having flown on NASA’s space shuttle in 1986 when he was a Congressman.  He has argued for years that ISS can operate at least until 2030 and that is reflected in S. 3277.  It extends operations of ISS to 2030, six years longer than specified in the FY2017 NASA authorization act.  The bill also expresses the sense of Congress that a national lab capability in space continue after ISS is decommissioned with “appropriate accommodations for different types of ownership and operational structures for the ISS and future space stations.”

The Senate Commerce Committee will mark up S. 3277 on August 1.  It remains to be seen whether there is sufficient time before the 115th Congress adjourns for the bill to pass the Senate and a compromise to be reached with the House over their very different approaches to these issues.

 

Note:  An earlier version of this article referred to Moon Express obtaining a “license” in 2016, but it received  a”favorable payload determination.”