House bill would regulate bold commercial space missions — but not very closely

Today, the House of Representatives will vote on a bill that outlines how the government should oversee ambitious commercial missions in space — such as asteroid mining or sending private landers to other planets in the Solar System. Currently, there’s no government framework to supervise such missions, and this legislation could fill that regulatory gap. Yet, some experts say this bill is only a first step and that more comprehensive legislation may be needed to truly fix the uncertainty surrounding spaceflight regulation.

The bill — called the American Space Commerce Free Enterprise Act — gives the Commerce Department the authority to regulate how commercial companies do bold things in space, making sure they adhere to international law. The US is part of a few international treaties that detail how countries are supposed to behave when exploring space. And commercial companies could get the US government in trouble if they don’t follow the treaties’ guidelines.

Giving the Commerce Department oversight would allow the private industry to do bigger and more innovative things in space, while ensuring that they aren’t stepping out of line. But the big role comes with big responsibilities: it calls for scaling up the department’s Office of Space Commerce to handle the extra work. But right now, that office consists of just four people, and it doesn’t have much experience with issuing licenses.

“It was originally created as a way to promote commercial space and space industrialization,” Brian Weeden, a space expert at the Secure World Foundation, a nonprofit that specializes in space security, tells The Verge. “Since its inception, it really hasn’t had a lot of power and really hasn’t had a lot of influence.”

Some in the industry also think the bill doesn’t go very far in providing necessary government oversight. The legislation cites very few restrictions that would prohibit a company from getting a license for space missions. And the bill doesn’t require commercial companies to prove they’re following international law. Companies simply need to say they’re adhering to the US’s treaty obligations, and the Commerce Department is supposed to presume they’re telling the truth. So the bill gives commercial companies a lot of wiggle room to do what they want in space, with very little government intervention. “It says the government is going to say ‘yes’ to whatever it is you’re doing,” Jim Dunstan, a lawyer specializing in international space law at the Mobius Legal Group, tells The Verge. “If you check off the right boxes, then you can go off and do it with pretty minimal supervision.”

SpaceX’s launches are regulated by the Federal Aviation Administration.
Image: SpaceX

Right now, commercial space companies deal with up to three government agencies to get licenses for their missions. The Federal Aviation Administration licenses rocket launches, making sure vehicles don’t hurt any bystanders or nearby property when they take off. To send a satellite to orbit, a company needs a license from the Federal Communications Commission, which dictates the radio frequencies companies can use to communicate with their spacecraft. And the National Oceanic and Atmospheric Administration issues licenses for satellites that take pictures and video imagery of the Earth in what’s known as remote sensing.

However, there’s no agency responsible for overseeing how companies behave in space. Some companies want to do more than just launch communications and imaging satellites into orbit. A few are looking to build spacecraft that repair satellites already in space; others want to extract resources — such as water and minerals — from celestial bodies like the Moon. Right now, the US government has a hard time okaying these kinds of missions, because it doesn’t have a good way to know if the companies will adhere to the country’s international obligations, notably those outlined in the Outer Space Treaty. Signed in 1967, the treaty lays out a number of principles that the US and other countries must comply with when exploring space. For example, countries can’t put nuclear weapons in space, and they can’t lay claim to a planet or moon. The treaty also lays the foundation for limiting the cross-contamination of other worlds in the Solar System, what’s known as planetary protection.

But above all, the treaty says that countries are responsible for whatever their companies do in space. And that’s why the government needs a federal team to oversee in-space activities. If a company messes up, the US could be in violation of international law. (The consequences aren’t too dire: there are no fines, but it’d mean upsetting allies and international partners.)

For the last decade, politicians and space industry experts have been discussing which part of the government should take on this responsibility. Many suggested just expanding the role of the FAA, which already deals with the launch licensing process and has made it clear that it wanted the job. However, the House Science subcommittee introduced this bill last summer, naming the Commerce Department for the gig. Vice President Mike Pence recently endorsed the Commerce Department, too, during a February meeting of the National Space Council. Some lawmakers don’t believe that the FAA has the expertise or the jurisdiction to deal with in-orbit space missions, Dunstan says.

Under the bill, the FAA and FCC would keep their current licensing responsibilities, while the Office of Space Commerce would take on both NOAA’s authority and in-space regulation. The bill aims to speed up the licensing process, too: it places a 90-day time limit on how long permits should take to get approved. It also gives the Office of Space Commerce sole authority over whether or not a company gets a license. So while the office can consult with outside organizations, like the Department of Defense, the Commerce Department has the final word.

NOAA recently said that launch companies must get a license to show imagery of the Earth from orbit.
Image: SpaceX

“The good thing is it finally does fill that regulatory gap, which is in desperate need,” says Dunstan. “There are companies who are interested in doing these types of [special] activities, and they can’t close their business cases because of the regulatory uncertainty. And not knowing who to go ask for permission has always been apart of that problem.”

But the Commerce Department’s oversight would be very lax. Basically, companies just have to tell the department they aren’t sending a weapon of mass destruction into space and that they won’t be testing any weapons on another planet. That’s about it. Companies don’t have to say how they’ll adhere to other parts of the Outer Space Treaty, such as the planetary protection rules. And when companies submit their applications for a license, the Commerce Department is supposed to “presume, absent clear and convincing evidence to the contrary,” that the companies are telling the truth, the bill states. In essence, the department would be using the honor system. “I think the industry would be more than happy to have this regime on them,” says Dunstan.

The bill also puts the burden on US companies — not the Commerce Department — to figure out if they satisfy the US’s treaty obligations. “The burden should be on the government to determine whether or not what’s being done meets the obligations of the treaty — because they’re the obligations of the US government,” says Weeden.

Even with these minimal licensing requirements, the Office of Space Commerce would definitely need to staff up. The bill calls for a $5 million boost to the Commerce Department to do just that. But this bill just authorizes the money; it doesn’t actually appropriate new funding. So if this bill is passed, a separate appropriations bill would be needed to actually deliver the extra funds to the Office of Space Commerce.

And it seems doubtful this bill will pass in Congress as is. There is no companion bill in the Senate, and Dunstan says that many senators want to see legislation that fleshes out more about what the Commerce Department needs to do during the licensing process. So if this bill does pass today, it may be many months before the Senate provides its own legislation in response. “This is the government; nothing happens overnight,” says Weeden.

Having a bill that’s too restrictive could be a problem, too. The commercial space industry needs a regulatory framework, but companies also want one that is nimble and fast-moving. Otherwise, they could just flee overseas. The government will need to come up with final legislation that strikes the right balance. “This is a good first step, and we’ll have to take it as that,” says Dunstan. “It’s probably not the end all be all.”

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