Space Commerce Act Seen Raising Debris, International Question Marks
The American Space Commerce Free Enterprise Act (HR-2809), which the House OK'ed Tuesday evening by voice vote, would sizably change how nontraditional space operations are governed, though issues of orbital debris oversight aren't clear, experts told us. The proposal to give Commerce much oversight that rested with the FAA is a major change that raises some concerns given lack of Commerce expertise, said Michael Listner, principal of the Space Law & Policy Solutions consultancy. House Space Subcommittee Chairman Brian Babin, R-Texas, tweeted the proposal is an "important step ... to secure America’s leadership in space [as it] declares America open for space business."
Sign up for a free preview to unlock the rest of this article
Timely, relevant coverage of court proceedings and agency rulings involving tariffs, classification, valuation, origin and antidumping and countervailing duties. Each day, Trade Law Daily subscribers receive a daily headline email, in-depth PDF edition and access to all relevant documents via our trade law source document library and website.
The legislation would give new space debris mitigation regulatory powers to Commerce, but it's not expected to change the traditional role the FCC and NOAA have played in overseeing debris issues for the operations they license, said space lawyer Laura Montgomery. The exemptions section of the bill says certifications aren't required for FCC-licensed satellites. That would seem to indicate the agency would still have orbital debris jurisdiction for the operations it licenses, said Montgomery. The FCC didn't comment.
Montgomery said it's unclear whether both the FCC and Commerce have jurisdiction for new space operations. Most in-orbit operations would need an FCC license for their signals, such as telemetry, tracking and control, she said. The intent of the act is to give exclusive jurisdiction to Commerce for nontraditional missions, including orbital debris issues related to them, but the bill doesn't have a provision about exclusive jurisdiction, which has been used in other legislation, she said.
Since the bill wouldn't take effect for a year after passage, there's a lot of time to see how things will actually evolve if it becomes law, emailed Henry Hertzfeld, George Washington University research professor of space policy. Commerce would be the point of entry for all payloads, but the role of payload review for safety on launch might not rest there, he said. Debris issues are also unclear since NASA and Defense have their own debris mitigation rules for government satellites.
Listner said the FAA had been seeking on-orbit authority for activities between launch and re-entry, but Congress has been reluctant to go that route, with the legislation instead giving that on-orbit authority to Commerce's Office of Space Commerce. OSC “is really bare bones right now and would have to in a sense reinvent the wheel," he said. The bill transforms what had been private interest in space access -- akin to a driver's license -- and turns it into a right by saying an applicant gets permission automatically unless Commerce denies the applicant within 90 days of filing, Listner said.
Cleveland State University Global Space Law Center Director Mark Sundahl said the bill sets a bad precedent internationally by automatically handing out licenses. The 90-day time frame and streamlined process are good for industry but raise the possibility of rogue companies getting authorization to operate in space from rogue nations or countries with lax regulatory review. "We wouldn't want the Chinese to have the same approach," he said.
More nations, such as New Zealand, Finland and Japan, are drafting legislation on how they will regulate private space companies, Sundahl said. "They will look to the U.S. as a trend setter and model." Timelines put an agency's "feet to the fire," but there need to be ways of incentivizing Commerce instead, he said. Listner said some regulatory change in how the U.S. handles nontraditional space missions is inevitable given the growing importance of commercial space. He said there have been rumors of a Senate version since last fall, though nothing has materialized.