Lagging progress on commercial space policy

by

This article originally appeared in the March 25, 2019 issue of SpaceNews magazine.

Last year was the year the turf battles were supposed to end. In May, President Trump signed Space Policy Directive (SPD) 2, directing regulatory reforms in topics ranging from launch to commercial remote sensing while consolidating much of that regulatory oversight in the Department of Commerce and its revived Office of Space Commerce. A month later, Trump signed Space Policy Directive 3 regarding space traffic management, setting in motion plans to give Commerce responsibilities for providing safety information to civil and commercial satellite operators.

Public progress, though, has lagged since those two directives. The last nine months has seen missed deadlines, failed legislation and continued debates about who should be responsible for what. Proponents say they’re committed to pressing ahead with the reforms and reorganizations promised last year, but some worry that a window of opportunity could be closing.

Aviation versus space

One part of SPD-2 directed the Department of Transportation, through the FAA, to reform regulations for licensing commercial launches and reentries. The policy directed the department to publish proposed revisions to those regulations by Feb. 1.

The FAA, which said last fall it was working as fast as possible to meet that deadline, ultimately missed it. Wayne Monteith, the new head of the FAA’s Office of Commercial Space Transportation, blamed the five-week partial government shutdown for the delay. “I am confident it will be out towards the end of next month,” he said in a Feb. 12 speech at the Commercial Space Transportation Conference in Washington.

A bigger issue for the FAA, though, is jurisdictional. In the House, commercial space issues have traditionally been handled by the House Science Committee, which also has oversight of NASA. With a change in party control, though, the House Transportation Committee, which oversees the rest of the FAA, has shown a growing interest in commercial space. (This is not an issue in the Senate, where the same subcommittee of the Senate Commerce Committee handles both aviation and space.)

“Anything that goes to space has to go through the airspace,” said Hunter Presti, a Republican staff member of the House Transportation Committee’s aviation subcommittee, at the Commercial Space Transportation Conference.

While not formally speaking for the committee, he said he expected it to take on a growing interest in space. “When it comes to commercial transportation of cargo, and hopefully in the near future spaceflight participants,” he said, “our committee has a role to play there.”

With the passage of a five-year FAA reauthorization bill, Presti said the committee will have a chance to look ahead at some emerging issues, like commercial space transportation. “We approach anything we look at through a safety lens,” he said, while being aware that aviation is a far more mature, and far less risk-tolerant, industry than spaceflight. “What’s going to be important is for us to remain cognizant that space is not aviation, and aviation is not space.”

The new chairman of the transportation committee, Rep. Peter DeFazio (D-Ore.), has previously raised concerns about the threats commercial launches could play in disrupting aviation activity, particularly through long closures of airspace. He helped derail House passage in December of the Space Frontier Act, whose provisions included reforms of both launch and commercial remote sensing regulations.

The transportation committee, for now, is only slowly starting to address commercial spaceflight issues. On March 12, its aviation subcommittee held a hearing about new users of the national airspace system, ranging from drones and supersonic passenger jets to commercial space flight.

Commercial space, though, didn’t come up until about two hours into the hearing, when Rep. Rick Larsen (D-Wash.), chairman of the subcommittee, started a second round of questions. He asked Captain Joe DePete, president of the Air Line Pilots Association, if he had any concerns about the growing number of launches on the airspace system.

“The real key is going to be this coexistence in the airspace,” DePete said. “Since more and more launches will take place, how do we dynamically manage that airspace so we don’t create undue burdens for other users of the airspace during the launches?”

There are solutions to that problem, he said, such as improved data links from launch operations that can feed into air traffic control systems to better manage what airspace is closed and for how long. But, he warned, “it will take increased funding.”

While DePete’s comments were relatively upbeat about the prospects of cooperation between airlines and launch companies, there was a cautionary note to the overall hearing: none of the witnesses represented the commercial launch industry.

Commerce versus Transportation

The two space policy directives signed last year concentrated authority in the Commerce Department, particularly its Office of Space Commerce. The department would take on responsibilities ranging from regulating so-called “nontraditional” commercial space services not currently overseen by any agency to space traffic management work currently handled by the Defense Department.

“It’s been a long-held U.S. government view that the department would play a significant role in America’s space commerce pursuits,” Kevin O’Connell, director of the Office of Space Commerce, said at a Senate Commerce Committee hearing March 13. That includes being both an advocate for industry as well a regulator, he said.

One major focus has been implementing SPD-3 regarding space traffic management. “In partnership with the Department of Defense and other federal agencies, we will assume no later than 2024 the responsibility to provide conjunction analysis and other basic space flight safety services to civil and commercial users,” O’Connell said.

Kevin O’Connell, director of the Office of Space Commerce, testifies March 13 before the Senate Commerce Committee. Credit: NASA/Joel Kowsky
Kevin O’Connell, director of the Office of Space Commerce, testifies March 13 before the Senate Commerce Committee. Credit: NASA/Joel Kowsky

That shift may ultimately require congressional authorization that could encounter obstacles, particularly in the House. At the same time as O’Connell was testifying before the Senate, the House Science Committee was holding a hearing on space issues that also included space traffic management and Commerce’s role in handling it. “Is that the civil agency that you believe would be best suited for that role, and is this something Congress should evaluate?” asked Rep. Eddie Bernice Johnson (D-Texas), chairwoman of the committee.

One of the witnesses, Frank Rose of the Brookings Institute, weighed in. “I fully support transferring the mission from DoD to a civilian agency,” he said. He noted, though that the Obama administration studied this when he was at the State Department, and that the “general consensus” then that the FAA should take on that responsibility because of its history working on space issues.

“Honestly, I was a little bit surprised that the administration decided to move it to Commerce,” he said, recommending that Congress closely follow the implementation of that policy. “I don’t have a hard preference one way or the other, but you should ensure, from my perspective that we do it right.”

That issue also came up at the Senate hearing. “Why not the Department of Transportation and the FAA?” asked Sen. Gary Peters (D-Mich.)

O’Connell said that Air Force Gen. John Hyten, head of Strategic Command, pushed for Commerce to take on the STM responsibility “because we were going to be interacting with a whole range of commercial actors in space.”

“The FAA, obviously, deals with a lot of commercial actors in the air,” countered Peters.

O’Connell responded that Commerce has technical organizations with space expertise, like NOAA, as well as experience in sharing technical data that is key to STM. “We are interacting with a wide range of new companies that are coming into the market” with new sensors and analytical tools to support that mission, he added.

Sense of urgency

There is progress on a number of fronts, although it is going slower than expected. A notice of proposed rulemaking to reform commercial remote sensing regulations, tied up in internal government reviews for months, is now in “final discussions,” O’Connell said at a Washington Space Business Roundtable luncheon in early March, and should be released in the near future. A report on spectrum management for space, included in SPD-2 and due months ago, should also be released soon, he said.

Frank Rose, right, a Brookings Institute senior fellow and former assistant secretary of state, said the Obama administration concluded the FAA, not the Commerce Department, should take the lead on space traffic management. Credit: Brookings Institute
Frank Rose, right, a Brookings Institute senior fellow and former assistant secretary of state, said the Obama administration concluded the FAA, not the Commerce Department, should take the lead on space traffic management. Credit: Brookings Institute

The slow pace of progress in implementing those commercial space policies has some in industry worried that it could come to a stop, particularly if a new president is elected in 2020. A new administration will likely have new priorities, and commercial space may not fare as well.

Scott Pace, executive secretary of the National Space Council, hinted at that in a March 21 luncheon speech at the American Astronautical Society’s Goddard Memorial Symposium. While emphasizing the need for urgency in NASA’s human space exploration plans, he said there needs to be faster work in implementing issues such as regulatory reform.

One example, he said, was the ongoing review of commercial launch regulations. “We were told that if we wanted to update the commercial space launch regs it would take about five years,” Pace said. “That, of course, was flatly unacceptable to the vice president, so we’re going to have them in a year.”

Or, perhaps, longer than that, since 13 months have elapsed since the February 2018 National Space Council meeting where Vice President Mike Pence endorsed those regulatory reforms later incorporated into SPD-2, but which are now more than a month and a half overdue. An update on that effort, Pace said, should be provided at the council’s next meeting March 26 in Huntsville, Alabama.

“The technologies and markets are moving faster than government regulations,” he said. That includes not just reforming existing regulations but creating new ones where needed to enable new markets, like nontraditional space applications. “We need to do better in keeping up with the with the reality of the world.”