Senators Skeptical of White House Mission Authorization Proposal

Sen. Kyrsten Sinema (I-AZ) and other Senators expressed reservations about the White House’s new mission authorization proposal at a Senate hearing today.  Released last month by the National Space Council, the proposal calls for splitting responsibilities for regulating new types of space activities between the Department of Commerce and the Department of Transportation instead of creating a “one-stop shop” as many expected. At an unrelated event earlier in the day, the Space Council’s Director of Commercial Space Policy acknowledged they have a lot of work to do to explain their reasoning.

Sinema chairs the Space and Science Subcommittee of the Senate Commerce, Science, and Transportation Committee.  That subcommittee held a hearing in October where they heard from the private sector about the regulatory issues associated with launching private astronauts, particularly the imminent expiration of a prohibition on the FAA promulgating new commercial human spaceflight regulations, the so-called “learning period.”

Today’s hearing was more broadly about mission authorization for all new commercial space activities and was a chance for the subcommittee to hear from government witnesses.  NASA, the FAA’s Office of Commercial Space Transportation (AST), NOAA’s Office of Space Commerce (OSC), and DOD were represented. Sinema and subcommittee Ranking Member Eric Schmitt (R-MO) both noted that the Space Council was invited to testify, but declined.

The Space Council’s legislative proposal was submitted on November 15 less than an hour before the House Science, Space, and Technology Committee began markup of the Republican-sponsored Commercial Space Act (H.R. 6131). Final votes were postponed until November 29 to provide time to review the proposal. The committee approved the bill on a party-line vote that day. The Senate committee is drafting its own bill.

Sinema, who changed her party affiliation from Democrat to Independent at the beginning of the year but continues to caucus with Senate Democrats, criticized the Space Council’s proposal.

“I am heartened that the administration is working on this critical issue, but the proposal contains numerous ambiguities, new undefined terms and broad grants of open-ended authority.  Unfortunately, the Council declined to attend today’s hearing and answer questions on their proposal, but I do hope to hear from them soon and gain further clarity.

“One thing that is clear is that we cannot simply continue with the status quo that results in licensing delays, regulatory uncertainty and inefficient uses of taxpayer dollars and private resources.” — Sen. Kyrsten Sinema

Schmitt warned that “regulatory ambiguity and uncertainty are standing in the way from truly unleashing our nation’s commercial aerospace industry capabilities” at a time when the United States is in “an intensifying” space race with China.

Sen. Ted Cruz (R-TX), Ranking Member of the full committee, lambasted the current regulatory system and the “asinine delays that accomplish nothing.” SpaceX launches its Starship from Boca Chica, TX and Cruz congratulated them on what he characterized as a successful second test flight last month after “months of delay stemming from bureaucratic red tape” caused by FAA/AST, the Fish and Wildlife Service “and other agencies injecting themselves into the process.”

He honed in on FAA/AST Associate Administrator Kelvin Coleman and John Hill, DOD Deputy Assistant Secretary of Defense for Space and Missile Defense, demanding to know if China and Russia require the same types of environmental reviews. They both said they didn’t know what those countries require, but Coleman explained that he follows U.S. law and Hill replied he did not think China was a good model. Cruz parried that he was not “advocating for a wholesale repeal” of U.S. environmental laws, only that they not be “applied in a dumbass way that slows down commercial space.”

At the October hearing, SpaceX’s Bill Gerstenmaier asserted that government regulatory delays were negatively impacting SpaceX’s ability to fulfill its contract with NASA to provide a Human Landing System for the Artemis program to put astronauts back on the Moon. Cruz asked NASA Deputy Administrator Pam Melroy if regulatory delays were impeding progress. She replied that she had asked the NASA HLS program manager and the answer was no and the regulatory agencies have “signaled that they are aware of the critical nature of the Artemis program.”

Melroy also was asked about NASA’s position on whether the learning period under which the FAA cannot create new commercial human spaceflight regulations should be extended. In place since 2004 and renewed several times already, it prohibits the FAA from creating regulations for passengers on commercial space vehicles. They only must give their informed consent and the FAA does not certify the vehicles are safe as they do for commercial aircraft. The learning period will expire on January 1 without further congressional action.  Melroy said NASA “would prefer not to extend” it because they worry commercial passengers may believe NASA certifies the vehicles as safe, but NASA certifies them only for NASA operations, not for use by private astronauts. “We do have concerns about that misunderstanding.”

There is a lot of discussion about creating a “one-stop shop” for regulating commercial space activities to make it easier for companies to navigate the government bureaucracy. That’s a bit of a misnomer, however, since no one so far is suggesting that existing responsibilities change. Currently FAA/AST regulates commercial space launch and reentries, NOAA’s OSC regulates commercial remote sensing satellites, and the Federal Communications Commission (FCC) regulates assignment of radio frequencies and, to some extent, orbital debris. FAA/AST is part of the Department of Transportation (DOT). NOAA/OSC is under the Department of Commerce (DOC).

Instead it’s a matter of deciding who should regulate new types of space activities like satellite servicing, commercial space stations, and a wide range of other potential businesses in Earth orbit and beyond, including on the Moon. The discussion for years has revolved around whether it should DOT or DOC.

Instead of choosing one of the other, however, the Space Council split responsibilities between the two.  Coleman, Hill, Melroy, and OSC Director Richard DalBello all supported the Space Council’s proposal, but Sen. JD Vance (R-OH) asked if it wasn’t “unduly complicated.”

Coleman explained that only a single agency will have oversight of a single activity: “There is no situation in which both the Department of Commerce and the Department of Transportation will have joint oversight responsibilities for a single activity.”

DalBello, however, allowed that in a hypothetical case posed by Vance where a satellite servicing mission might dock with a commercial space station, two licenses would be required. His office would regulate satellite servicing missions while Coleman’s would be in charge of any activities involving human spaceflight, including commercial space stations. Vance said he worries that jurisdictional disputes might arise, but DalBello assured him there will be a “robust” interagency process as there is now.

Earlier in the day at the Eilene M. Galloway Symposium on Critical Issues in Space Law, Diane Howard, the National Space Council’s Director of Commercial Space Policy, acknowledged that a lot of work remains to be done to explain their rationale. “We’re at the beginning of our discussions” with Congress and “certainly our legislative proposal is not the only one there.”

“I think we need continued conversations dealing with the best way forward in a way that balances what industry needs in order to innovate and flourish because we all benefit from that from a national security standpoint, from an economic standpoint, but we also need to balance that with what is actually responsible and sustainable over time.” — Diane Howard