Proposed legislation would close commercial space regulatory gap
LONG BEACH, Calif. — Legislation under development by Rep. James Bridenstine (R-Okla.) would seek to eliminate uncertainty about how some novel commercial space ventures would be regulated by the U.S. government.
The bill, discussed at a Sept. 14 teleconference of the Federal Aviation Administration’s Commercial Space Transportation Advisory Committee (COMSTAC), would create an “enhanced payload review” under the FAA’s authority for all commercial missions not otherwise currently licensed by other agencies.
The purpose of the legislation is to eliminate uncertainty about which federal agency would have oversight of the mission in order to provide the “authorization and continuing supervision” required by the Outer Space Treaty of 1967. This oversight is currently provided by the Federal Communications Commission for communications satellites and the National Oceanic and Atmospheric Administrator for remote sensing satellites.
However, oversight of so-called “non-traditional” commercial space activities, which range from satellite servicing spacecraft to lunar lander missions, is less certain. This has posed obstacles for companies seeking payload reviews as part of the launch licensing process, since it’s not clear how the U.S. government would uphold its licensing and supervision obligations.
“I think everyone is in agreement that something has to be done,” Bridenstine said at the COMSTAC meeting. “We’re taking on a lot of risk by doing nothing.”
Such legislation, he and other proponents of the bill argued, is necessary even though the FAA has already granted approval for one non-traditional mission. Moon Express announced Aug. 3 that it the FAA had approved its payload review for a lunar lander mission after the company voluntarily disclosed additional information about how it would upload treaty obligation in areas like planetary protection and avoiding harmful interference.
However, that approval does not necessarily set a precedent for other missions. Bridenstine said he was worried that a future administration might take a different approach. “The concern is that the longer we wait to do something, the more likely there will be executive branch regulation by default, and you’ll have agencies weighing in or even saying no,” he said.
The limited nature of the Moon Express mission also made it easier for the FAA to grant a payload review. Brian Israel, a State Department lawyer, noted at the meeting that current regulations prevent the FAA from granting a payload review with conditions, something that the proposed legislation would allow.
“Based on the our understanding of the very limited nature of this particular mission, which seemed more on the order of a technology demonstration with a relatively short life, we didn’t believe any conditions were necessary,” he said of the Moon Express approval.
A longer, more sophisticated mission, Israel suggested, might be harder to approve currently without the ability to set conditions on a payload review. “Our lack of ability to say ‘yes, but’ to prescribe conditions necessary for compliance with the treaty would put us in a bind,” he said.
“Congress needs to assert its authority and make sure the law is done and we don’t leave it to the whims of whatever administration happens to be in charge,” Bridenstine said, making the case for his proposed bill.
While drafts of the legislation are circulating in industry, Bridenstine didn’t indicate when he would introduce it. With time running out this year, he said he may wait to introduce it next year. “It’s not likely it’s going to be passed in this Congress,” he said.
“We would like it to be soon, but we want to get it right,” said Christopher Ingraham, senior policy advisor to Bridenstine, at the COMSTAC meeting. “If that means doing it early next year, then so be it.”
The proposed bill, though, could put Bridenstine at odds with another House member. Rep. Brian Babin (R-Texas), chairman of the House space subcommittee, said at a Commercial Spaceflight Federation breakfast Sept. 13 that it was time to reconsider space regulations in general and seek “more creative” options for issues like handling non-traditional commercial space activities, according to those who attended the event.
Proponents of the proposed bill worry that approach could lead instead to more regulations from agencies, rather than the lighter regulatory burden proposed by the Bridenstine bill. “By not doing something, whether or not it’s our payload review bill,” Ingraham said, “we leave a power vacuum that someone comes in and fills.”
COMSTAC members at the Sept. 14 meeting were largely supportive of the proposed bill, although some sought to provide additional feedback. The issue is expected to come up at the next meeting of the advisory group, in late October.