White House Reveals Its Mission Authorization Plan for Novel Space Activities

Less than an hour before a House committee marks up legislation expanding the Department of Commerce’s regulatory authority for space activities, the White House is revealing its own plan for who should be in charge of “mission authorization” for novel space activities. After years of debate, House Republicans and the Biden-Harris Administration have come up with different ideas on how to ensure the U.S. abides by its international obligations under the 1967 Outer Space Treaty without stifling the commercial space industry.

The House Science, Space, and Technology Committee will mark up H.R. 6131, the Commercial Space Act, at 9:30 am ET this morning. Among other things it puts the Department of Commerce (DOC) in charge of regulating new types of space activities not already regulated by other agencies, referred to as mission authorization.

Just before that markup gets underway, the White House is releasing its own legislative proposal, splitting responsibility between DOC and the Department of Transportation (DOT).

[UPDATE, November 15, 5:00 pm ET. The committee considered Babin’s bill and held votes on a number of amendments, but did not vote on the bill itself. Chair Lucas and Ranking Member Lofgren agreed to postpone further action until after Thanksgiving because of votes on the floor, members unable to participate in the markup, and the receipt of additional information. Lofgren noted they had just received the Administration’s proposal and everyone needed time to review it.]

Article VI of the Outer Space Treaty requires governments to authorize and continually supervise the space activities of non-government entities, like companies. Right now, DOC’s National Oceanic and Atmospheric Administration (NOAA) regulates commercial remote sensing satellites, DOT’s Federal Aviation Administration (FAA) regulates commercial launches and reentries, and the Federal Communications Commission (FCC) assigns radio frequencies required for communications between Earth stations and satellites.

That regime has been fine for decades, but commercial space is on an upswing with a broad array of novel ideas for what to do in space — from satellite servicing to commercial space stations to active debris removal to fuel depots and much more. Companies have to navigate a maze of government agencies to determine what regulations apply. Several years ago, Jim Armor, then with Orbital ATK (now Northrop Grumman), described the complex effort required to get approval for their first satellite servicing mission, Mission Extension Vehicle-1 (MEV-1). They were surprised, for example, to discover they needed a license from NOAA because their sensors could see Earth while looking for the target satellite, Intelsat 901.

The question of what agency or agencies should have regulatory authority over these new commercial space activities has pitted supporters of DOC and DOT against each other for years along with debate over how much regulation is needed. What the space industry wants is clarity and predictability on what the regulatory regime will be, especially as they seek to attract investors.

The 2015 Commercial Space Launch Competitiveness Act required the Obama Administration to submit a plan. It chose DOT.  Congressional Republicans disagreed and legislation that would have assigned it to DOC almost passed Congress in 2018, but was defeated for unrelated reasons at the last minute. The Trump Administration expanded DOC’s responsibilities to include Space Traffic Management in Space Policy Directive-3, but then-Secretary of Commerce Wilbur Ross’s grand plans for a much broader role didn’t materialize.

The Biden-Harris Administration was next to pick up the gauntlet. A December 2021 U.S. Space Priorities Framework  asserted they would foster a policy and regulatory environment to enable a competitive commercial space sector, but it was almost a year before Vice President Kamala Harris directed agencies to submit proposals on how to do that.  At the September 10, 2022 meeting of the White House National Space Council, which she chairs, she told agencies to submit their ideas within 180 days, or by March 9, 2023. Now, eight months later, she is submitting the Administration’s plan on the cusp of the House committee’s markup of its own legislation.

The Administration’s plan splits responsibilities between the two Departments:

• DOT currently regulates the safety of humans during launch and reentry. Now it would also regulate their safety while in space — in Earth orbit, on a commercial space station, or beyond Earth orbit.
• DOT currently licenses space launch and Earth reentry. Now it would also regulate in-space transportation for delivering goods from one point to another in space, including delivering fuel from a space fuel depot to a space station, and to/from the lunar surface.
• DOC currently licenses commercial remote sensing satellites. Now it would license all novel space activities not human-rated or otherwise assigned to DOT, including in-space assembly and manufacturing and active debris removal.
• DOC would have authority to provide space traffic coordination and warnings to avoid collisions in space.

The White House’s legislative proposal directs DOT and DOC to stand up regulatory review processes leveraging expertise and perspectives from other Executive Branch agencies like NASA. They also are to consider space safety and sustainability as part of their licensing process to avoid creating space debris.

Deputy Secretary of Commerce Don Graves said “U.S. industry leads the world in bringing the benefits of space to Earth. This legislation ensures that our government will build a regulatory environment that supports commercial expansion to benefit all Americans.” His counterpart at DOT, Polly Trottenberg, Deputy Secretary of Transportation, said “The FAA remains committed to ensuring novel in-space activities occur safely and efficiently. We look forward to supporting an all-of-government approach working with industry.”