Administration Directions for Regulatory Agencies. House Bill on Space Traffic

On June 18, 2018, the President issued Space Policy Directive 3 (SPD-3) (also available in the Federal Register here) to address hazards to space access and the freedom to operate in space.  The directive contains goals and requirements for regulatory agencies, and the specific concern is space debris and how to avoid it:

space is becoming increasingly congested and contested, and that trend presents challenges for the safety, stability, and sustainability of U.S. space operations. Already, the Department of Defense (DoD) tracks over 20,000 objects in space, and that number will increase dramatically as new, more capable sensors come online and are able to detect smaller objects. DoD publishes a catalog of space objects and makes notifications of potential conjunctions (that is, two or more objects coming together at the same or nearly the same point in time and space). As the number of space objects increases, however, this limited traffic management activity and architecture will become inadequate. At the same time, the contested nature of space is increasing the demand for DoD focus on protecting and defending U.S. space assets and interests.

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Emerging commercial ventures such as satellite servicing, debris removal, in-space manufacturing, and tourism, as well as new technologies enabling small satellites and very large constellations of satellites, are increasingly outpacing efforts to develop and implement government policies and processes to address these new activities.

In other words, although DoD has been providing information about debris hazards to the private sector, its primary mission is warfighting and so it has other things to do.

DoD currently provides what is called space situational awareness.  SPD-3 defines “space situational awareness” (SSA) to mean the knowledge and characterization of space objects and their operational environment.  The directive defines the more burdensome hand of  “space traffic management” (STM) as the planning, coordination, and on-orbit synchronization of activities to enhance the safety, stability, and sustainability of operations in the space environment. The difference between the two is clear.  With SSA, the government may provide a private operator notifications or warnings.  With STM, the government can synchronize or coordinate, and tell you to move over.

The directive contains some tensions.  On the one hand, it wants debris regulations streamlined.  On the other, it wants more government oversight.  In order to facilitate commercial leadership in SSA and STM section 4 paragraph (c) mandates that the U.S. Government reduce regulatory burdens that could inhibit commercial sector growth and innovation.  At the same time paragraph (f) establishes a goal for regulatory agencies of adopting space traffic management standards and best practices as domestic regulatory frameworks:

Develop STM standards and best practices. … A critical first step in carrying out that goal is to develop U.S.-led minimum safety standards and best practices to coordinate space traffic. U.S. regulatory agencies should, as appropriate, adopt these standards and best practices in domestic regulatory frameworks and use them to inform and help shape international consensus practices and standards.

The FAA, the FCC, and NOAA all have orbital debris mitigation requirements in their regulations, namely, requirements to prevent the creation of debris.  The FAA has a new debris rulemaking listed on its agenda.  That rulemaking, which has been on the agenda for a number of years, would update the FAA’s “existing orbital debris mitigation regulations to more-closely align with the U.S. Government Orbital Debris Mitigation Standard Practices, and would update current launch collision avoidance regulations to match U.S. Air Force Space Command (AFSPC) practice.”  These agencies don’t have, and don’t have authority for, mandatory space traffic management.

It will be interesting to watch how the agencies reconcile these apparently conflicting goals.  On the one hand, the President charges the agencies with reducing regulatory burdens that could inhibit growth and innovation.  On the other, the agencies should adopt new requirements for space traffic management. The latter will have to wait for Congressional legislative action to grant an agency that authority.

The House has proposed a related bill directing the Secretary of Commerce to establish a civil space situational awareness program to provide space SSA data to, and obtain SSA data from, a state or its political subdivision, U.S. or foreign commercial entities, or a foreign government.  Congress would let the Secretary decide what constituted a “basic” set of SSA services for which the Secretary would not charge a fee.

More significantly, the bill proposes that the Secretary of Commerce develop a voluntary space traffic management program, to include the development of voluntary guidelines and a voluntary pilot program. It does not, in other words, grant Commerce the kind of authority SPD-3 appears to call for.

The bill would also require the Secretary to report on progress back to the appropriate Congressional committees.  Interestingly, although the bill does not appear to provide the Secretary authority to develop legally binding requirements, the Secretary would have to report on them.  Perhaps “legally binding” standards refers to those developed by foreign governments or those imposed on government contractors through the procurement process.  Thus, if NASA, for example, hired a private company to engage in work on orbit, NASA might by contract require the company to follow any of its debris guidelines.  Those requirements would then be legally binding.  And, of course, if a foreign regulator imposed space traffic management requirements, those could be legally binding on anyone under its jurisdiction as well.