Congress To Consider Changes to U.S. Commercial Space Law

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WASHINGTON — Congress is expected to consider changes to the primary U.S. commercial space law, possibly to invest the Federal Aviation Administration’s (FAA) Office of Commercial Space Transportation (AST) with the authority to regulate on-orbit activities.

In a year when lawmakers are expected to start work on a new NASA authorization — appropriations authorized under the last such bill expire this year — “there is also much interest in updating the Commercial Space Launch Act this year,” said Ann Zulkosky, a senior professional staffer for the Democratic majority on the Senate Commerce science and space subcommittee.

Zulkosky, who spoke Feb. 6 at the AST’s annual Commercial Space Transportation Conference here, said when lawmakers turn their attention to the Commercial Space Launch Act, they will consider whether to extend AST’s regulatory authority into Earth orbit. The office already regulates the launch and re-entry of commercially operated spacecraft, and, via the government launch indemnity program it administers, influences the level of insurance coverage commercial rocket operators must procure for each launch.

The Commercial Space Launch Act that then-President Ronald Reagan signed into law in 1984 is the cornerstone of U.S. commercial space regulation. The law was last amended in 2004, largely due to anticipation of a suborbital passenger-launch industry that has yet to conduct its first flight.

“When we enacted the Commercial Space Launch Amendments Act of 2004, we expected companies to build new vehicles and fly spaceflight participants right away,” Rep. Dana Rohrabacher (R-Calif.), who recently became vice chairman for the House Science, Space and Technology Committee, said at the AST conference. “So we created an eight-year window of opportunity for the private sector to build, test and fly. Well, that eight-year window has closed, and we were far too optimistic in our assessment.”

Rohrabacher, a staunch commercial space advocate, has been outspoken about giving entrepreneurial space companies planning to fly paying customers to space a period of relatively loose regulation in which to develop their technology.

Rohrabacher said he had concerns about whether the FAA, which is primarily concerned with the safety of commercial airline passengers, is the best regulator for commercial space operators without any flights under their belts.

“The FAA, which regulates but does not promote aviation, must have a different mindset than the FAA which regulates and promotes spaceflight,” Rohrabacher said. “Ultimately, if that proves too difficult for the FAA to reconcile, then we may need to consider moving this activity out of the FAA and back to the Office of the Transportation Secretary.”

The Commercial Space Launch Act originally put AST under the direct control of the transportation secretary’s office. The Transportation Department transferred the office to the FAA in 1995.

AST has a dual mandate to regulate and promote commercial space activities.

Even if Congress does nothing with the Commercial Space Launch Act this legislative session, there is at least one urgent commercial space issue they must deal with: Once again, the U.S. commercial launch indemnity regime is set to expire at the end of the year. The indemnity program, which protects companies from third-party damage claims that exceed their insurance coverage, got a one-year extension late last year, just as it was set to expire.

A House proposal last year sought a two-year indemnity extension — U.S. launch companies and AST have asked for longer extensions than that — but industry wound up with only a one-year extension after negotiations played out in the Senate.

“Many of you saw how difficult it was to extend the indemnification regime for even one year,” Zulkosky said. “I suspect that getting the consensus view again will be challenging with legislation in this Congress.”