Senate Committee Approves Space Frontier Act

The Senate Commerce, Science, and Transportation Committee approved the Space Frontier Act, S. 3277, this morning on a voice vote with no debate.  Three amendments were adopted: a Cruz amendment in the nature of a substitute; an Inhofe amendment regarding spaceports; and a Peters amendment on space debris.  The next step will be a vote by the full Senate.

The bipartisan bill was introduced last week and is sponsored by Senators Ted Cruz (R-TX), Bill Nelson (D-FL) and Ed Markey (D-MA).  The two main topics are commercial space regulations and extending the lifetime of the International Space Station (ISS) to 2030.

The amendment in the nature of a substitute makes several minor changes to the original wording of the bill, but the thrust remains the same.  The Inhofe amendment simply requires a study by the Department of Transportation (DOT) and Department of Defense (DOD) on the process used to approve commercial spaceports at U.S. military installations.  The Peters amendment states that it is U.S. policy to  have consistent orbital debris standards across all U.S. government agencies.

Cruz chairs the Committee’s Space, Science, and Competitiveness Subcommittee and said today that he hopes the bill will be on the President’s desk by the end of this Congress.  That could be quite a challenge since some of its provisions are significantly out of step with the Trump Administration and with the American Space Commerce Free Enterprise Act that passed the House on April 24.

The Administration, the House and the Senate all agree that existing commercial space regulations are outdated and need to be streamlined in order to encourage commercial space activities.  Commercial space launches and reentries are regulated by DOT’s Office of Commercial Space Transportation (AST), which is part of the Federal Aviation Administration (FAA).  AST’s mandate actually is broader than just regulation.  It also facilitates and promotes commercial space launch and reentries.  Commercial remote sensing satellites are regulated by the Department of Commerce (DOC) through the National Oceanic and Atmospheric Administration (NOAA).

While regulation of existing commercial space activities is important, it is non-traditional commercial space activities that are driving the debate.  Under Article VI of the 1967 Outer Space Treaty, governments are required to authorize and continually supervise the activities of non-governmental entities, like companies.

No U.S. government agency is currently empowered to fulfill that treaty obligation for many of the concepts now proposed by the private sector — from commercial lunar landers to asteroid mining to satellite servicing and many more.  There is widespread agreement that some government entity must be designated to have those responsibilities to ensure the United States is in compliance with its treaty obligations.

The question is which one — DOT or DOC.  The Trump Administration and the House want DOC.  The Senate bill does not.  It allows DOT to continuing using a process called an enhanced payload review to approve non-governmental space activities not subject to authorization under other federal law.

DOT used its enhanced payload review process in 2014 to provide favorable guidance to Bigelow Aerospace in connection with its plans to launch a lunar habitat.  In 2016, it used the process to provide a favorable payload determination for Moon Express to send a robotic lander to the lunar surface. The government made clear, however, those were not necessarily precedents for the future.

The Senate bill would, in fact, make that DOT process the default.  It also creates a new, higher-level politically-appointed position at DOT, Assistant Secretary for Commercial Space Transportation, to execute AST’s functions.

One factor in DOT’s favor is that it already has a substantial organization in place at AST with about 100 people and a roughly $24 million a year budget.  Adding non-traditional space activities to its mandate presumably would not significantly increase the cost.  By comparison, DOC has a very small Office of Commercial Remote Sensing Regulatory Affairs and a similarly small Office of Space Commerce that together have only a few staff and receive less than $4 million a year.  Secretary of Commerce Wilbur Ross wants to combine and significantly upgrade those offices, creating a Space Policy Advancing Commercial Enterprise (SPACE) Administration within the Department.

One concern is whether it is worth the cost to stand up a new organization at DOC.  The Trump Administration and the House apparently think so, but the Senate is not convinced.

The Senate bill is also at odds with the Trump Administration over the future of the ISS.  The Administration wants to end U.S. government support for ISS in 2025 and transition to an era where NASA would pay to use commercial space stations.  The Senate bill requires the government to support ISS through 2030 because of skepticism that the private sector will be ready to operate their own space stations by 2025.  Senators Cruz and Nelson are adamant that ISS is critical both to continued commercialization of space and NASA’s human spaceflight program.

With so many differences, it will be difficult to find a compromise in the short time remaining in the 115th Congress assuming the bill passes the Senate.