Sat. Jun 15th, 2024

Why the White House and Congress can’t see eye-to-eye on regulating commercial space

Tyler Mitchell By Tyler Mitchell Jun12,2024

The year is 2027, and NASA is finally ready to return humans to the surface of the moon. The Space Launch System and Orion have demonstrated their ability to send a crew to the moon, while SpaceX has put Starship through extensive testing to take astronauts down to the lunar surface and back. There’s just one problem.

Under the Human Landing System program, NASA is procuring not a lander but instead a service provided by SpaceX, making Starship a commercial, not government, vehicle. Yet it is unclear who in the federal government is responsible for regulating such missions, which fall outside the established authorities of agencies such as the FAA, FCC and Office of Space Commerce. Confusion, and delays, ensue.

Such a scenario, as strange as it may sound, is not outside the realm of possibility. Industry has argued for years for a need for a “mission authorization” system to provide the oversight of commercial activities required under international treaty. As so-called novel space activities — satellite servicing, commercial space stations and lunar landers, among others — are no longer seen as novelties, the desire to end uncertainty about their regulation grows. However, the White House and Congress remain at loggerheads about how to resolve the problem.

Two approaches to Article 6

The need for mission authorization is rooted in Article 6 of the Outer Space Treaty, the foundation of international space law. That article requires member states to provide “authorization and continuing supervision” of space activities by non-governmental entities to ensure they abide by the treaty.

Rep. Brian Babin (R-Texas) is a co-sponsor of the Commercial Space Act of 2023, a bill that would create a mission authorization system within the Department of Commerce for all commercial space activities not currently licensed elsewhere. Credit: Jeff Foust/SpaceNews

In the United States, that has involved licensing of commercial space activities by different agencies: launches by the FAA, communications by the FCC and remote sensing by the Office of Space Commerce. That traditionally covered nearly all commercial space activities, but new space applications that don’t neatly fit into those three categories have raised questions about which agency would take on those Article 6 oversight responsibilities.

That creates “the perception of regulatory uncertainty,” said Rep. Brian Babin (R-Texas), chairman of the House Science Committee’s space subcommittee, at the FAA Commercial Space Transportation Conference Feb. 21. “The process of confirming authorization and continuing supervision compliance could benefit from further clarification.”

Babin, with full committee chairman Rep. Frank Lucas (R-Okla.), introduced legislation in early November that seeks to provide that clarity. The Commercial Space Act of 2023 would create a mission authorization system within the Department of Commerce for all commercial space activities not currently licensed elsewhere. “This bill’s purpose is to assure the United States has conformity with its Outer Space Treaty obligations in the least burdensome manner possible,” he said.

Less than two weeks later, the White House issued its own legislative proposal for implementing mission authorization. “The proposal is the product of deep thought, healthy debate and constructive consensus building,” said Diane Howard, director of commercial space policy at the National Space Council, in a talk at the SpaceCom conference Feb. 1.

The biggest difference between the House bill and the White House proposal is which agencies would be involved. While the House bill gives mission authorization solely to the Commerce Department, the White House would have the Commerce and Transportation Departments share that role. Transportation would be involved for any missions involving human spaceflight, as well as those that involve in-space transportation of items from one destination to another. Commerce would handle all other activities.

One stop or more

While there has been plenty of debate in the three months that followed the release of the two proposals, no consensus has emerged about what is the right approach. The administration, including the agencies that would be involved with implementation, have lined up squarely behind the White House proposal.

“The Department of Transportation and the FAA is completely supportive of the administration’s framework,” said Kelvin Coleman, FAA associate administrator for commercial space transportation, in a speech at the FAA conference. That support, he added, extended not just to the Commerce Department but also NASA and the Pentagon. “We think the proposal that’s on the table now offers clarity, flexibility and predictability.”

In a later conference panel, Glenn Tallia, legal counsel for the Office of Space Commerce, said the Commerce Department preferred the bifurcation in the administration’s proposal that left human spaceflight with the Transportation Department. “The FAA, Department of Transportation, has been doing human spaceflight safety for many years,” he said. “There really wasn’t much of an appetite at our senior level to take that mission on. We’d just be reinventing the wheel.”

Industry, though, has gravitated towards the House bill. “We are very concerned about the proposal” from the White House, said Mary Lynne Dittmar, chief government and external relations officer at Axiom Space, during a Feb. 14 hearing by the House Science Committee on future commercial space stations.

“We think the proposal that’s on the table now offers clarity, flexibility and predictability.” – Kelvin Coleman, FAA associate administrator for commercial space transportation Credit: Jeff Foust/SpaceNews

Her concern, shared by others in industry, is that split between Commerce and Transportation. “We think there is a great deal of room for communication difficulty between the agencies,” she said, including an interagency coordination process called for in the proposal. “We’re concerned about delays that might be imposed by that.”

“There are several areas of potential overlap in the authorities, which could result in confusion and delays,” Babin said of the White House proposal. He was also opposed to an “expansive grant of authority” the proposal would give the agencies to issue regulations as part of the mission authorization process, arguing that is an “abdication of Congress’s legislative responsibilities in space activities.”

Babin said the House bill created a “one-stop shop for all space activities,” but administration officials counter that such an approach is neither feasible nor desirable.

“One of the things that we worry about is that, in order to make a one-stop shop, we’re going to have to take somebody’s existing authorities away from them,” argued NASA Deputy Administrator Pam Melroy in a speech at the FAA conference. “That’s going to get a bunch of other equities involved that really don’t have anything to do with space, and really probably cloud the discussion.”

Others noted the House bill doesn’t really create a one-stop regulatory stop: companies would still need to go to the FCC for spectrum and, if they are a launch provider, the FAA for a launch license.

In an interview, the FAA’s Coleman noted that the White House proposal would allow the FAA to issue a single “mission license” for something like a commercial cargo mission to the space station that would not only cover all phases of the mission but also do away with the separate launch and reentry licenses required today. “There’s also an in-space transport portion of that mission,” Coleman said “Would it make sense for another government agency to have that portion of the mission while we have launch and reentry?”

The Space Council’s Howard was circumspect in any criticism of the House bill in her SpaceCom speech. “There are a couple of things that are absent that give us pause,” she said, such as any provision regarding supervision and space sustainability. How the House bill deals with national security implications of commercial space activities is also “not fully formed, in our opinion.”

A Senate solution?

The White House’s legislative proposal has yet to be introduced in Congress or incorporated into another bill. The House Science Committee advanced the Commercial Space Act on a party-line vote in late November, with Democratic members of the committee voting against it in part because they wanted more time to examine the White House proposal.

“We have a plethora of ideas on mission authorization,” said Pam Whitney, minority staff director on the House Science Committee’s space subcommittee, during a panel discussion at the FAA conference. “Our members chose to weigh some of the different thoughts and wanted to review the administration’s proposal.”

Another proposal may soon join the debate. Senators are working on their own commercial space bill that is likely to include a mission authorization framework of some kind. Details about the bill are scant, though, beyond the expectation it will adopt another version of a one-stop shop for mission authorization.

“What we come up with on a bipartisan basis for a commercial space bill, in my personal view, will have this question of mission authorization at the core,” said Dave Turner, a senior professional staff member on the Senate Commerce Committee, on that panel.

He did not go into specifics about that issue but suggested the Senate will try to find a middle ground between the White House proposal and the House bill. “Whatever we come up with on the Senate side is not going to look exactly like the House version, and it’s not going to look exactly like the administration’s version.”

Some in the industry are pinning their hopes on the Senate bill to break the impasse between the administration and House proposals. “I think there’s a robust conversation occurring in the Senate right now, and I look forward to seeing what the Senate puts out there,” said Mike Gold, chief growth officer at Redwire and a former NASA official, on another FAA conference panel.

Watching the FCC

Amid the debate between the White House and Congress on mission authorization, there is a wild card: the FCC. As an independent agency, it can develop regulations without the approval of either the administration or Congress, provided they fall within their statutory authorities.

The FCC has not been shy about exercising those powers: it enacted orbital debris regulations two decades ago, long before the executive or legislative branches were willing to take up the issue. Those regulations are tied to the FCC’s authority to ensure the long-term continuity and reliability of space communications, said Karl Kensinger, special counsel at the FCC, at the FAA conference.

The FCC is now taking up rules about in-space servicing, assembly and manufacturing, or ISAM. The FCC published a notice of proposed rulemaking, or NPRM, Feb. 16 for ISAM, outlining how it would issue licenses for communications involving spacecraft involved in servicing and activities. The proposal includes not just spectrum allocation and licensing but also orbital debris mitigation and remediation issues.

The intent of the proposed ISAM rules, Kensinger said, is to “adapt the licensing process so it fits a little better with those kinds of activities.”

However, both the White House and Congress are taking a critical view of the FCC’s interest in ISAM regulations, seeing it as creeping toward mission authorization. The focus on spectrum needs for ISAM in the proposal “is perfectly appropriate for an NPRM put out by the FCC,” said Howard in a talk at the Space Traffic Management Conference by the International Academy of Astronautics Feb. 27.

She added, though, some of the other topics in the document go into a “murky, gray, squishy territory” of regulation. “It was very surprising to us at the White House,” she said, because they had invited the FCC to discussions about what would become the administration’s mission authorization proposal.

“In order to make a one-stop shop, we’re going to have to take somebody’s existing authorities away from them. That’s going to get a bunch of other equities involved that really don’t have anything to do with space, and really probably cloud the discussion.” – Pam Melroy, NASA deputy administrator Credit: Jeff Foust/SpaceNews

“This is another inflection point indicator for Congress to take note of,” she added. “The sooner that Congress takes what we’ve given them and all the good ideas they have over there, and enacts legislation, the better.”

The FCC has its critics in Congress. “I think what the FCC is doing is wholly inappropriate,” said Duncan Rankin, senior adviser to Sen. Ted Cruz (R-Texas), ranking member of the Senate Commerce Committee. “The FCC should no more regulate ISAM or orbital debris than the National Endowment for the Arts should certify airplanes.”

“We must resolve this issue”

So, what about that scenario where a lack of a mission authorization system impeded America’s return to the moon? It is, at the very least, on the radars of NASA and industry.

“It is a watch item,” said Cathy Koerner, NASA associate administrator for exploration systems development, at the FAA conference. “The sooner we get it resolved, the better off all of us will be.”

Nick Cummings, senior director of program development at SpaceX, agreed that mission authorization was a concern, although not necessarily the biggest regulatory one. “Mission authorization is a theoretical problem if we can’t solve the launch regulation bottleneck,” he said at the conference, referencing industry worries that the FAA can’t keep up with increasing commercial launch activity. “That could have a direct impact on Artemis much sooner.”

“We must resolve this issue,” said Gold, who has been promoting the need for a mission authorization regime for years. That need is growing as companies are now developing lunar landers and other novel space activities.

“This is no longer an academic discussion,” he said. “Whether you’re an investor or an insurer, we need the certainty relative to what the regulatory path is forward on the moon.”

“This is an issue that’s needed to be addressed for some time now,” Coleman said, recalling efforts on mission authorization going back to the Obama administration. “I think we’re further along to get this addressed than we’ve ever been.”

He hoped, despite the lack of consensus between the administration and the House, to get something done on mission authorization this year. “Given that we have some momentum now and Congress is paying attention,” he said, “I do think it’s critical to get it done in this Congress.”

This article first appeared in the March 2024 issue of SpaceNews magazine.

Tyler Mitchell

By Tyler Mitchell

Tyler is a renowned journalist with years of experience covering a wide range of topics including politics, entertainment, and technology. His insightful analysis and compelling storytelling have made him a trusted source for breaking news and expert commentary.

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2 thoughts on “Why the White House and Congress can’t see eye-to-eye on regulating commercial space”
  1. It’s incredible to see how the evolution of commercial space travel is impacting governmental regulations. The struggle between the White House and Congress reflects the complex nature of navigating new technologies and responsibilities in the outer space domain. Hopefully, they can find common ground soon to ensure the safety and effectiveness of these missions.

  2. Isn’t it perplexing that even in 2027, there’s still uncertainty about regulating commercial space missions? How do you think the White House and Congress should bridge this regulatory gap?

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