The Space Frontier Act: the Outer Space Treaty, Streamlining Regulation, and Oversight of Foreign Activity

The Space Frontier Act, which the Senate Commerce Committee voted on today after a mark-up, attempts, among other things, to address a regulatory treaty issue and to streamline the regulation of commercial launch and reentry, and non-traditional activities in space.  Both efforts could benefit from greater precision.

Non-Traditional Space Activities and the Outer Space Treaty.  The Space Frontier Act appears to affirm the status quo–whatever that may be–on whether non-traditional space activities may proceed with or without governmental approval.  Greater clarity might be helpful.

The bill states the Secretary of Transportation “may use the launch and reentry payload review process to authorize non-governmental space activities that are related to an application for a license or permit under this chapter and are not subject to authorization under other Federal law.”   What this does is not entirely clear, but I understand it to be directed at certain treaty concerns.  Specifically, Article VI of the Outer Space Treaty requires of countries who signed the treaty, as the United States did, that “[t]he activities of non-governmental entities in outer space . . . shall require authorization and continuing supervision by the appropriate State Party to the Treaty.”

The FAA licenses cargo carriers— launch and reentry vehicles—that take cargo (called payloads) to and from orbit or outer space. Because lunar habitats, mining machines, and space tugs are objects, the FAA treats them as payloads under the Commercial Space Launch Act, and then reviews them as part of its review of a launch or reentry operator’s application for a launch or reentry license. Although the FAA does not license or permit payloads or their operations, Congress charges the FAA under 51 U.S.C. § 50904 with conducting payload reviews before issuing a license. Specifically, the current statute provides that if “no authorization, license or permit is required, the [FAA] may prevent the launch or reentry if the [FAA] decides the launch or reentry would jeopardize [among other things] . . . [a] foreign policy interest of the United States.”

The Space Frontier Act would fix only half the treaty issue.  Article VI requires 1) authorization, and 2) continuing supervision.  The bill would recognize the payload review as a form of Article VI authorization. The bill is silent, however, about continuing supervision.  Congress has been clear in the past that the FAA does not have authority on orbit to regulate or supervise private activities.  The bill would not change that.  (The FAA’s payload review worked for Moon Express because of the limited time Moon Express was expected to operate, and the supervision could all take place in advance.)

Accordingly, the State Department would likely remain concerned about treaty compliance.  The FAA must consult with the State Department and would also continue to be concerned.  Industry’s uncertainty would continue unabated.

If the Senate wishes to reduce regulatory burdens and confusion, it could avail itself of other options.

What might work best would be if Congress were to declare that it will only legislate where sound policy reasons, such as safety or national security, call for it, and that until it does no regulatory agency may deny a private actor access to space on the basis of non-self-executing treaty provisions such as, for example, Articles VI and IX. If the FAA denied a private actor access to space under its payload review, it should not do so on the basis of lack of another regulator. For purposes of DOT/FAA compliance, the following changes could be made, with new language in bold:

51 U.S.C. § 50904…

(c) Preventing Launches and Reentries.—

The Secretary of Transportation shall establish whether all required licenses, authorizations, and permits required for a payload have been obtained. If no license, authorization, or permit is required, the Secretary may, subject to the conditions of this paragraph, prevent the launch or reentry if the Secretary decides the launch or reentry would jeopardize the public health and safety, safety of property, or national security or foreign policy interest of the United States.  The Secretary may not prevent a launch or reentry of a payload for any of the following reasons:

(1)  The operation of the proposed payload will take place without regulation; or

(2)   On the basis of a non-self-executing treaty provision, such as Article I, II, VI or IX of the Outer Space Treaty.

OR

(c) Preventing Launches and Reentries.—

The Secretary of Transportation shall establish whether all required licenses, authorizations, and permits required for a payload have been obtained. If no license, authorization, or permit is required, the Secretary may prevent the launch or reentry if the Secretary decides the launch or reentry would jeopardize the public health and safety, safety of property, or national security or foreign policy interest of the United States.  A foreign policy interest does not include any treaty provision that Congress has not implemented by legislation, including Articles I, II, VI and IX of the Outer Space Treaty.

Finally, as a technical matter, a payload review applies to payloads, which are objects, not to activities.

Streamlining.  The proposed bill might not exactly accomplish the intended goal.  On the streamlining of FAA regulation, the bill is mostly hortatory.  It exhorts the FAA to make use of existing authorities, such as waivers and safety approvals, to be more efficient and less burdensome when issuing licenses or permits for launch or reentry.  It does not, however, change the requirements for waivers, which the FAA may already issue, under current law.  Instead, it imposes two more requirements on an applicant before making mandatory the FAA’s grant of a compliant waiver request.

Congress says in existing law that the FAA may waive a requirement if the FAA “decides that the waiver is in the public interest and will not jeopardize the public health and safety, safety of property, and national security and foreign policy interests of the United States.”  Current law says that the FAA may waive a requirement under certain conditions.  It does not say that the FAA must waive a requirement if an applicant satisfies those conditions.  True, the bill would require the FAA to use existing authorities, but only if doing so would “make more efficient use of resources and reduce the regulatory burden for” applicants.  This provides minimal improvement over the current state of affairs; but under the proposed bill, an applicant who satisfied all the existing conditions (which would be decided by the FAA, not the applicant) could try to argue that the FAA had to issue the waiver by proving that it would be more efficient and less burdensome.  This sound like both an opportunity for an applicant, but also like a lot more work.  A more simple solution might be for Congress to change the “may” in existing law to “must.” Then an applicant would only have to satisfy five conditions rather than seven as proposed.

Similarly, existing law forbids the FAA from waiving the requirement for a license if a human being will be on board the launch or reentry vehicle.  This prohibition on waivers would continue unchanged under the Space Frontier Act.

Oversight of foreign actors.  A close reading of the text reveals an interesting definition of nongovernmental space activity.  The current draft of the bill would define “nongovernmental space activity” to mean the space activity of a person other than the U.S. government or its contractors performing work for it.  This matters because the bill would treat an FAA payload review of “nongovernmental space activities” as an authorization.  If a nongovernmental space activity includes the activity of anyone who is not the U.S. government or its contractors, that must mean it includes foreign operators, both private and governmental.  Perhaps I’ve missed something, but would the bill require the U.S. government to authorize foreign activity in space?  That might exceed any treaty requirements on the books.