Senate-Passed Bill Creates Bureau of Space Commerce, But Punts on New Regulatory Responsibilities

The Senate passed a revised version of the Space Frontier Act today.  It includes a number of changes to what the Senate Commerce Committee approved earlier this year, perhaps most significantly elevating the Office of Space Commerce at the Department of Commerce (DOC) to a Bureau reporting directly to the Secretary of Commerce.  It does not give the Bureau responsibility for regulating non-traditional commercial space activities, however, another move sought by the Trump Administration.  Instead, it punts on that issue.

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.  Today, regulatory authority for commercial space activities is split between DOC and the Department of Transportation (DOT).  DOC’s National Oceanic and Atmospheric Administration (NOAA) regulates commercial remote sensing satellites.  DOT’s Office of Commercial Space Transportation (AST), part of the FAA, regulates, facilities and promotes commercial space launches and reentries.

No U.S. government agency is assigned responsibility for fulfilling that treaty obligation for many of the non-traditional commercial space 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 to have that responsibility.

The version of the Space Frontier Act, S. 3277, approved by committee on August 1 did not agree.  It would have allowed 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 that 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.

In the version that passed today, however, that language is omitted.  Instead, the bill is silent on which government agency should oversee non-traditional commercial space activities.  It does not assign it to either DOT or DOC.

Speaking on the Senate floor today, Sen. Ted Cruz (R-TX), said the bill “ensures that both the Department of Commerce and the Department of Transportation will take leading roles in promoting and help grow our nation’s commercial space sector.”

Cruz sponsored the bill along with Sen. Bill Nelson (D-FL) and Sen. Ed Markey (D-MA).  He chairs the Senate Commerce Committee’s Space, Science, and Competitiveness subcommittee.

The new version does establish a Bureau of Space Commerce at DOC, as sought by the Administration. It would combine DOC’s existing Office of Space Commerce and Office of Commercial Remote Sensing Regulatory Affairs, which are now part of NOAA.  The new Bureau would be headed by a Senate-confirmed Assistant Secretary for Space Commerce reporting directly to the Secretary of Commerce, not through NOAA.  The Bureau would issue licenses for commercial remote sensing satellites and coordinate DOC policy impacting commercial space activities and work with other agencies to promote policies that advance commercial space activities.  Today’s bill does not give the Bureau new regulatory authorities, however.

A major purpose of the bill is to streamline and update existing commercial space regulations.  Modifications were made to the committee-approved version in response to national security concerns about changes that were to be made to commercial remote sensing regulations.  For example, remote sensing licenses still will be required for activities like satellite servicing where the Earth may be in the background even though remote sensing of Earth is not main purpose.

In addition to its commercial space regulatory provisions, the bill addresses the future of human spaceflight, especially the International Space Station (ISS).  One portion of the bill that did not change is its requirement that government support of ISS continue through 2030. That is at odds with the Administration’s proposal to end direct government support of ISS in 2025.  It also directs NASA to maintain the capability for a continuous human presence in low Earth orbit (LEO) through and beyond the useful life of ISS.

Cruz said the bill will ensure that the United States will not “cede low Earth orbit to China.”

The bill does support the Administration’s request for a LEO commercialization program, however. In the FY2019 NASA budget request, the Administration  proposed $150 million for FY2019 and projected another $150 million in FY2020 and more in future years for commercial LEO development.  The bill authorizes $150 million for FY2020.

Nelson heralded the bill’s ISS provisions during his floor speech today.  He said that extending government support of ISS through 2030 will allow the commercial sector to plan and invest in research on ISS “and who knows what discoveries they will make in this unique environment.” He added that the ISS will further the goal of sending humans to Mars.

Nelson lost his bid for reelection, so these are his final days in the Senate. He has been the Senate’s strongest advocate for ISS and human spaceflight for many years.

The bill passed the Senate by unanimous consent.  Cruz and Nelson said they hoped the House would take up the bill tonight, but that was before the agreement on a Continuing Resolution (CR) to keep the government operating fell apart.

Last night the Senate passed a CR to keep NASA, NOAA and other agencies whose FY2019 funding has not been enacted yet operating through February 8, 2019.  The expectation was that the House would pass it today, but instead it amended the Senate bill, adding $5.7 billion for President Trump’s border wall and $7.8 billion for disaster relief and sent it back to the Senate.  It is very controversial. What will happen now is unclear.

The fate of the Space Frontier Act is also uncertain in these final days of the 115th Congress.  Any bill that does not pass before Congress adjourns will die.

One bill that did clear both chambers extends NASA’s authority to enter into enhanced use lease (EUL) arrangements for another year.  The Space Frontier Act includes a section on EUL, but the Senate also passed a separate bill, S. 7, on December 6 extending that authority to December 31, 2019.  The House passed it today and S. 7 now goes to the President for signature.  House Science, Space, and Technology Committee chairman Lamar Smith (R-TX), who is retiring, issued a statement calling it a “win-win for taxpayers and the private sector by letting commercial companies leverage NASA investment. For instance, NASA used EUL authority to lease SpaceX the historic Apollo and Space Shuttle launch Pad 39A, promoting the transition from all-government space activities to commercial ventures.”