By Ed Koellner –
The burgeoning space industry has brought to the forefront the critical issue of ownership of oversight for in-space activities. This article examines the important discussion that took place during a Full Committee Hearing – “Continuing US Leadership in Commercial Space at Home and Abroad” held on July 13, 2023, chaired by Congressman Frank Lucas (OK-03) and including four expert witnesses:
1. Ms. Karina Drees, President, Commercial Spaceflight Federation
2. Mr. Jim Dunstan, General Counsel, TechFreedom
3. Dr. Josef S. Koller, Systems Director, Center for Space Policy and Strategy, The Aerospace Corporation
4. Ms. Caryn Schenewerk, President, CS Consulting, LLC
During the hearing, these experts voiced serious concerns about existing space law and its limitations. To address the challenges and complexities, this essay proposes an all-encompassing regulatory framework that embraces the global nature of space activities. The game-changing solutions proffered involve establishing an International Space Regulatory Council, harmonizing regulations, granting significant authority to the Commerce Department’s Office of Space Commerce, ensuring unwavering oversight for human spaceflight, and fostering seamless interagency coordination. Embracing these visionary measures will pave the way for responsible and innovative space exploration while fueling unstoppable industry growth.
Assessment and Critique of Responses:
During the hearing and panel discussion, industry experts raised concerns about the current state of US space law and regulation, describing it as “bootstrapped,” suggesting a lack of coherence and robustness. While this criticism holds merit, I believe that space law has evolved, perhaps not as fast as it should, over time in response to technological advancements and unforeseen challenges. The cumulative regulatory framework aims for comprehensive oversight, considering the diverse interests of stakeholders, including national security and commercial ventures.
It is crucial to recognize the positive strides enabled by the current system in fostering space exploration and utilization. While acknowledging its weaknesses, any proposed changes in ownership of oversight should be approached thoughtfully to retain the progress made.
Considering the Requirements of Article VI:
Article VI of the Outer Space Treaty places an obligation on State Parties to supervise the activities of non-governmental entities in outer space. This underscores the necessity for oversight and authorization processes to ensure compliance with international obligations and safeguard national interests. The future oversight structure should adhere to the principles of Article VI to uphold the spirit and intent of the treaty.
The testimonies of the panel highlight key issues and recommendations related to the ownership of oversight for in-space activities and the need for a comprehensive regulatory framework. Their insights and recommendations included:
The Surge of the US Commercial Space Industry: As noted by James E. Dunstan, the US portion of the world space economy has experienced rapid growth, generating an impressive $211 billion in gross output annually. This growth can be attributed to forward-looking policies and public-private partnerships that have fostered innovation and investment in the commercial space industry. Karina Drees commented that the US commercial space industry has created high-paying jobs and rejuvenated the aerospace supply chain. Key policy recommendations include extending the FAA’s regulatory learning period for commercial spaceflight, providing the Department of Commerce (DOC) with explicit statutory authority for mission authorization, investing in modernizing space launch infrastructure and streamlining federal regulations to support industry growth and competitiveness.
The Current Lack of Comprehensive Regulatory Approach: However, a significant concern raised by Dunstan is the absence of a comprehensive regulatory approach to commercial space activities. Multiple agencies currently exercise authority over space-related matters without clear congressional authorization, leading to a fragmented and inefficient regulatory landscape that creates uncertainty for companies operating in the space sector and hinders growth and exploration.
The Need for a National Space Act: To address these regulatory challenges and maintain leadership in space, Dunstan proposes the establishment of a National Space Act, granting specific agencies regulatory authority, explicit rulemaking powers, enforcement capabilities and transparent interagency coordination. Such a coordinated and streamlined regulatory framework would promote responsible growth in the industry while maintaining the spirit of “permissionless innovation.”
Comprehensive Safety Frameworks for Commercial Human Spaceflight: Dr. Josef Koller highlights the critical need for comprehensive safety frameworks for commercial human spaceflight, encompassing best practices, regulations, third-party reviews, data collection and international collaboration. A comprehensive approach to safety enables the industry to protect human life and reduce risks associated with space missions.
Continuous Oversight and Streamlined Authorization Processes: Dr. Koller emphasizes the importance of continuous oversight for entire commercial human spaceflight missions. Designating a single agency with the responsibility of overseeing the entire mission will ensure safety standards are consistently met throughout the duration of the flight. Additionally, distinguishing between human and robotic missions can lead to streamlined authorization processes, essential for promoting efficiency and safety in space exploration.
Empowering the Commerce Department’s Office of Space Commerce: Caryn Schenewerk echoes the need for regulatory clarity and certainty, especially in novel space activities that lack clear frameworks. She recommends empowering the Commerce Department’s Office of Space Commerce with authority to approve US commercial in-space and in-situ operations. This would provide regulatory certainty to companies, encourage investment and foster competitiveness in the industry.
Facilitating Interagency Coordination for Industry Growth and Innovation: To foster a supportive environment for industry growth and innovation, Schenewerk emphasizes the importance of interagency coordination. By creating clear lines of communication and efficient processes between relevant government bodies, redundant and burdensome regulatory hurdles can be minimized, allowing companies to focus on technological advancements and exploration in space.
In summary, the ownership of oversight for in-space activities demands a comprehensive and adaptive regulatory framework. The testimonies of the industry expert panel underscore the need for clear regulatory authority, safety frameworks, streamlined authorization processes and interagency coordination. By implementing these recommendations, the global space community can ensure responsible and innovative space exploration, leading to continued growth in the commercial space industry.
To address the ownership of oversight for in-space activities effectively, I propose a comprehensive and adaptive regulatory framework that considers the complexities and global nature of space activities. Here is an in-depth explanation of each component of the proposed framework:
1. Establish an International Space Regulatory Council (ISRC):
The ISRC will be a collaborative body comprising representatives from spacefaring nations, international organizations and key stakeholders in the space industry. Its primary purpose would be to foster cooperation, information sharing and consensus-building among such agencies as the FAA, FCC, NOAA, DOD, State Department and commercial, academic, and research entities.
The ISRC will function as a platform for multilateral discussions on space-related policies, regulations and standards, facilitating the exchange of best practices, experiences and expertise among nations and organizations involved in space exploration and exploitation. By bringing together diverse perspectives, the ISRC can develop guidelines that consider the interests and concerns of all stakeholders, and promote equitable and responsible space activities. In addition, the United Nations Committee on the Peaceful Uses of Outer Space (COPUOS), could establish a subcommittee to develop guidelines, but not require total consensus, so that the process is expedited.
2. Harmonize existing regulations and standards within the ISRC:
The space industry currently operates under a patchwork of national and international regulations, which can lead to redundancies, inefficiencies and inconsistencies. The ISRC will harmonize existing regulations and standards and streamline oversight processes while ensuring that the regulatory framework remains robust and responsive to emerging challenges and technological advancements.
By aligning regulations and standards, spacefaring nations can minimize bureaucratic hurdles for companies operating across borders. Clear regulations will make it easier for commercial entities to comply with international obligations and access global space markets.
3. Grant the Commerce Department’s Office of Space Commerce authority:
To provide regulatory certainty and promote industry competitiveness in the US, the proposed framework would grant the Commerce Department’s Office of Space Commerce the authority to approve US commercial in-space and in-situ operations. The Commerce Department would assess and authorize space activities, ensuring they comply with national laws and international treaties, and work with FAA, FCC, DOD, State Department and commercial, academic and research entities.
The Commerce Department’s role as the approving authority will foster a consistent and transparent regulatory process, reducing uncertainty for commercial space companies. This clear authorization mechanism will enhance the confidence of investors and entrepreneurs, thereby stimulating innovation and economic growth in the US space industry.
4. Ensure continuous oversight of entire commercial human spaceflight missions:
Commercial human spaceflight has experienced significant growth and is set to become a pivotal aspect of space exploration. To ensure the safety and success of these missions, continuous oversight throughout the entire process is paramount.
The proposed framework suggests designating a single agency responsible for overseeing the entire commercial human spaceflight mission. This agency will monitor safety standards, assess risks and enforce compliance. It will also distinguish between human and robotic missions, developing processes specific to each type of mission.
5. Facilitate interagency coordination:
The multi-faceted nature of space activities often requires collaboration between different government agencies with varying expertise. Clear communication and coordination between government bodies will prevent duplication of efforts and ensure a cohesive regulatory approach, enabling companies to focus on innovation and exploration while adhering to established regulations.
The proposed comprehensive and adaptive regulatory framework aims to address the ownership of oversight for in-space activities by fostering international cooperation, harmonizing regulations, providing regulatory certainty, ensuring continuous oversight of human spaceflight and facilitating interagency coordination. By working together, spacefaring nations and stakeholders can create a transparent, responsible, and efficient regulatory environment that encourages sustainable and innovative space exploration while adhering to global obligations. The ownership of oversight for in-space activities is a complex challenge that requires a collaborative and adaptive approach. By building an International Space Regulatory Council, harmonizing regulations, empowering the Office of Space Commerce and facilitating interagency coordination, we can foster a comprehensive and responsible regulatory framework that promotes continued growth and innovation in space exploration and utilization while adhering to the principles of Article VI of the Outer Space Treaty.