On November 2, 2023, two chairs of the House of Representatives – Science, Space and Technology Committee, Brian Babin (R-Texas) and Frank Lucas (R-Oklahoma), introduced the Commercial Space Act of 2023 (“Bill”). The Bill intends to simplify and define the government’s authorization and supervision of commercial space missions. The Committee’s markup session is next and will aim to amend the Bill and then send it to the Senate for reconciliation. While the final law will undoubtedly differ from the original Bill, it is still worth exploring its intentions.
The 68-page Bill seeks to amend 51 U.S.C. and includes Subtitle VIII called “Authorization and Supervision of Nongovernmental Space Activities” and consisted of Chapters 801 and 802, as well as other statutory provisions. If approved, the Department of Commerce’s Office of Space Commerce becomes “the single authority responsible for the authorization and supervision certification process” (this exclusive authority derives from § 80101(8) and § 80102(a) of the Bill) according to the Executive Summary. Keep in mind that this only applies to “space object operations,” where “space object” is defined as:
- 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 payload or a spacecraft, including component parts of such object (§ 80101(10)(A)(i)); or
- Any item carried on such object that is intended for use in outer space outside of, and independent of, the operation of such carrying object (§ 80101(10)(A)(ii)); or
- Any human-made object that is manufactured or assembled in outer space and intended for operation there outside of, and independent of, the operations of such object in which the manufacturing or assembly occurred (§ 80101(10)(B)).
The Office of Space Commerce will not overlap with the Federal Aviation Administration’s (“FAA”) authority to license launch and reentry activities and the Federal Communications Commission’s (“FCC”) control over spectrum allocation. According to § 80111 of the Bill, the FAA and the FCC will maintain their independence.
Notably, if the Bill passes, the Office of Space Commerce will be able to issue certification only to U.S. entities, which include individuals who are U.S. nationals and non-governmental entities organized or existing under U.S. law (§ 80101(13)). The certification of foreign entities would be prohibited (§ 80102(d)). This would be in line with the existing law, since the FAA’s licensing procedure for launch and reentry activities also does not authorize the licensing of foreign citizens and non-U.S. entities (51 U.S.C. 50904(a)).
The Bill also establishes a Private Space Activity Advisory Committee, a 15-member body appointed by the Office of Space Commerce, to evaluate the effectiveness of the certification process (§ 80110). The Committee will monitor the status and recent developments of nongovernmental space activities, provide recommendations to the Office and Congress on how the U.S. can facilitate and promote a robust and innovative private sector, and perform other functions. The Committee is expected to report annually to the Office, Congress, and the President.
Further, according to its Executive Summary, the Bill “also promotes responsible behavior in space by requiring a U.S. entity applying for a certification to describe a space debris mitigation plan in the application” (§ 80103(A)(2)(F)). As stipulated in § 80104(a), such plan:
- Shall take into account best practice guidelines promulgated by the U.S. and the Inter-Agency Debris Coordinating Committee; and
- May take into account that a space object may terminate certified operations and be stored in a safe manner until such time as it is permanently disposed of or certified for further operations.
These proposed regulations confirm that the U.S. space community is moving toward responsible space debris mitigation. In early 2023, the FAA proposed a rule requiring launch and reentry operators to limit or dispose of debris at the end of a launch or reentry. Also, the FAA outlined various options for achieving this goal.
If the space debris mitigation rule is enacted as proposed in the Bill, a holder of a certification would be obliged to notify the Office of Space Commerce with a mitigation plan no later than 30 days prior to implementing the disposal phase and no later than 30 days after the completion of such phase and provide the results of the mitigation plan (§ 80104(b)).
The Bill also proposes that the National Aeronautics and Space Administration (“NASA”) establishes, in collaboration with an eligible entity, a Space Situational Awareness Institute to advance scientific, technological, and transdisciplinary research in space situational awareness (p. 49 of the Bill). Space situational awareness is defined as the identification and characterization of space objects and orbital debris, and an understanding of the manner of their behavior in outer space (p. 44-45). For NASA to collaborate with this entity, the chosen entity must be led by an institution of higher education, a nonprofit, or a not-for-profit organization. The entity will need to communicate its potential to improve the science and technology of space situational awareness and a commitment to financial support, guidance, participation, and other contributions (p. 51). The winner will be awarded a cooperative agreement with NASA for a period of 10 years (p. 52). The Bill suggests allocating $10 million from NASA’s fiscal year 2024 budget for the purpose of establishing the Space Situational Awareness Institute (p. 52). This would be an amazing opportunity for an entity meeting the above criteria to collaborate with NASA and enhance their role in the U.S. space industry.
Finally, the Bill’s authors suggested that the moratorium imposed on the FAA rule-making initiative (formally known as a “learning period”) be extended until October 1, 2031 (p. 57). In 2004, Congress imposed the initial moratorium on the FAA’s issuance of regulations on the health and safety of passengers on commercial human spaceflights. This moratorium was further extended several times and now, according to 51 U.S.C. 50905(c)(9), is currently set to expire on January 1, 2024. Currently, the FAA does not issue such regulations, and the Bill would provide the U.S. space sector with a longer learning period for experimentation and SpaceTech research. This is timely considering SpaceX is planning a second flight of its Starship transportation system, and NASA is continuing its Artemis moon exploration program.
The Commercial Space Act of 2023 is anticipated to undergo substantial revisions before it is enacted. This proposed legislation is meaningful since it will significantly affect the process of authorization and control of space activities in the U.S. We will continually monitor the evolution of this Bill to provide further updates.
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This and other articles on space law are prepared by our attorneys as part of our Space law legal practice.