Thoughts on the ASCFEA (including a modest proposal on how to pronounce it)

The American Space Commerce Free Enterprise Act cleared the House Space Science and Technology Committee on June 8 by voice vote. Marcia Smith has a nice description of the goings-on, including sponsors, amendments, and the Committee’s summary, at SpacePolicyOnline.

Setting aside my own views that authorizing and supervising any particular activity—much less all of them—is unnecessary, and noting concerns over the breadth of authorizing the operation of a space object, this bill is a much better model of what a light and transparent version of regulation could look like than either the previous Administration’s “Section 108” proposal or an enhanced payload review. Both proposals would have allowed regulatory agencies and those with whom they consulted a heavy hand and uncabined discretion to impose conditions and create delay. The ASCFEA (might we get consensus on pronouncing it a-s-C-fea? It’s really hard to remember all those letters in the right order) would require a non-governmental U.S. entity operating a space object to obtain a certification to do so from the Department of Commerce. The bill also would reform the remote sensing licensing process. Three points are of initial interest with respect to the non-traditional operators: the definition of a space object, the orbital debris provisions, and what amounts to a prohibition on nuclear weapons and weapons of mass destruction consistent with Article IV of the Outer Space Treaty.

Space object. Under the bill, a space object would consist of “a human-made object located in outer space, including on the Moon and other celestial bodies, with or without human occupants, that was launched from Earth, such as a satellite or a spacecraft, including component parts of the object; and all items carried on such object that are intended for use in outer space outside of, and independent of, the operation of such object.” A space object would not be “an object inside a space object that is only intended for use inside the space object.” Nor could it be “an article manufactured or processed in outer space that is a material.” Lastly, a space object would not be “an article intended for use outside of a space object as part of the certified operations of the space object.”

These definitions are far superior to the Section 108 proposal, which would have required approval of the operation of anything and everything one might take into space. However, the bill’s definitions might stand some tightening up so as to leave less discretion to the Secretary of Commerce. Discretion is nice for the Secretary, but creates regulatory uncertainty for operators and invites regulatory overreach. We might anticipate that the Secretary of Commerce will conduct a rulemaking to clarify these issues. Rulemakings take about five years.

Taking a lunar habitat with human occupants as an example, we can figure the habitat is a space object. The electric toothbrush is not a space object because it is intended for use inside the habitat space object. The distillery for a little home brew in the habitat is not a space object either. However, if you put a distillery on the Moon outside the borders of our now-growing Selene City, the distillery becomes a space object even though it wasn’t when it was inside Selene and possibly posing a greater hazard. I think I’d put a dome over my external distillery, and get a permit for the dome.

I’m not sure where a space suit falls. On the one hand, if you put on a space suit to go outside an orbital habitat to test your courage and take a little tour of the stars, your jaunt is arguably divorced from the operations of the habitat and your space suit is now a space object that requires a certificate. On the other hand, if you are donning the space suit to conduct repairs on the habitat, you could argue you don’t require certification for the space suit because fixing the habitat is part of its “certified operations.” An operator could side-step this type of question by describing all possible operations involving an object and its related objects, particularly those that interface with vacuum, which seems to be a line the bill draws.

Is vacuum the line to draw? If one were regulating for safety it would make sense. The lack of air outside can pose a hazard to people. Perhaps the bill’s lack of certification requirements for activities inside a space object shows that the main concern is knowing where everything is so the federal government may be ready to address potential interference issues with foreign nations under Article IX.   Will agencies such as the State Department accept the fact that activities may take place inside a space object that do not get their own individual certification?

Orbital debris. The Section 108 report sought protection of the U.S. government’s uses of space.  In what may be an attempt to allay concerns over the space assets of the federal government, the bill would require an applicant to describe how it proposed to operate and dispose of its space object so as to mitigate the generation of orbital debris. The bill would define “space debris mitigation” to mean “efforts to prevent on-orbit breakups; remove spacecraft that have reached the end of their mission operation for useful densely populated orbit regions; and limit the amount of debris released during normal operations of a space object.”  Section 80103(a) requires an applicant to provide a description of its mitigation plans, which under section 80104 must account for U.S. best practice guidelines, although storage of a spacecraft would be allowed.

Attestations consistent with Outer Space Treaty obligations on the United States. In its application, the applicant must attest that its proposed space object is not and will not carry a nuclear weapon or weapon of mass destruction, and that the space object will not be operated or used for the testing of any weapon on a celestial body. This is consistent with the directions in Article IV of the treaty that

States Parties to the Treaty undertake not to place in orbit around the Earth any objects carrying nuclear weapons or any other kinds of weapons of mass destruction, install such weapons on celestial bodies, or station such weapons in outer space in any other manner. The Moon and other celestial bodies shall be used by all States Parties to the Treaty exclusively for peaceful purposes. The establishment of military bases, installations and fortifications, the testing of any type of weapons and the conduct of military maneuvers on celestial bodies shall be forbidden.

The bill would condition grant of a certification on the applicant attesting it would not do these things. Note that the bill would require no attestations or plans regarding harmful contamination, and does not grant the Secretary the authority to require such attestations.

Conditions to ensure treaty conformity. The bill would allow the Secretary to impose conditions on a certificated entity to ensure compliance with an Outer Space Treaty provision applicable to a non-governmental U.S. entity. In other words, the non-interference provisions of Article IX, which apply to non-governmental entities, could provide a basis for imposing a condition on a certificated entity, but the harmful contamination provisions, which only apply to States Parties, would not. (If the language of section 80103(c)(1) is not clear enough, (c)(2)(C) is very blunt and clear in saying “The Federal Government shall not presume all obligations of the United States under the Outer Space Treaty are obligations to be imputed upon United States nongovernmental entities.”) If conditions would not cure a potential violation, the Secretary would be able to deny the applicant a certificate.

The bill contains a multitude of procedural protections. Some of them are rather clever, but I have exceeded this post’s word limit and may address those protections later. Also, the version I have does not contain the June 8 amendments.