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Falcon 9 launch
Provisions in the American Space Renaissance Act are intended to reduce barriers for commercial space companies in the hope their businesses can take off. (credit: SpaceX)

An overview of the American Space Renaissance Act (part 3)

by Michael Listner
Monday, May 9, 2016


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The final installment of this series examines Title III of the American Space Renaissance Act, which addresses commercial space. Title III attends to bolster the commercial space sector by amending the current body of statutory and regulatory law, providing funding for relevant licensing agencies, providing transparency of the application process for licensees, and incentivizing commercial space operators through amendment to the Internal Revenue Code, loan guarantees, and prizes.

Sec. 301. Office of Commercial Space Transportation

Section 301 acknowledges the rapid expansion of the commercial space industry and that the FAA’s Office of Commercial Space Transportation plays a critical role in that expansion, which inadequate funding could hinder by inadequate funding and resources.1 Taking into account the potential funding shortfall, Section 301 would amend 51 U.S.C. § 50921(1–5) to increase appropriations to the Office of Commercial Space Transportation in fiscal years 2017 through 2021 to $43.2 million , $55.5 million, $66 million, $80.5 million, and $99 million, respectively, and would amend 51 U.S.C. § 50921 to 51 U.S.C. § 50921(a)(1-5).2

Section 301(b) would also amend section 50921 by adding the following as section 50921(b):

“The Assistant Secretary for Commercial Space Transportation shall serve as the Associate Administrator for Commercial Space Transportation.”3

Establishment of Assistant Secretary for Commercial Space Transportation

Section 301(c) would establish the position of Assistant Secretary for Commercial Space through amendment of 49 U.S.C. § 102(e) and specifically by amending section 102(e)(1)(A) to include “Assistant Secretary for Commercial Space” after “Assistant Secretary for Research and Technology.”4

Workload metric

The issue of regulation is a touchy one in the commercial space industry and at first blush this requirement would doubtless create concern.

Section 301(d) would require the Assistant Secretary for Commercial Space Transportation to develop a metric not later than 120 days after the authorization of the act to measure workload of the Office.5 The metric would be developed taking into consideration the conclusions and recommendations of the Government Accountability Office (GAO) report “Federal Aviation Administration: Commercial Space Launch Industry Developments Present Multiple Challenges.”6 Section 301(d) would also amend section 50923(3) to 51 U.S.C. § 50923, which would modify the statutory report to Congress to require the use of the metric created by Section 301(d).7

Regulations required

Section 301(e) deals with the tricky issue of regulation and requires a move to “performance-based regulation”.8 Specifically, Section 301(e) would require the Assistant Secretary to issue a notice of proposed rulemaking not later than one year after authorization of the act to update regulations contained in the Code of Federal Regulations Title 14, Part 400, Sub-chapter C to a performance-based standard and to review regulations under the jurisdiction under the authority of the Office three years after they are issued and update them as necessary.9

The issue of regulation is a touchy one in the commercial space industry and at first blush this requirement would doubtless create concern. Performance-based regulations are designed to encourage better performance from the industry while reducing regulatory cost as opposed to prescriptive regulations, which defines how activities are to be undertaken e.g., what techniques or materials to use, what qualifications must be held, where the function may be performed, etc. and stresses a known degree of risk mitigation. Performance-based regulation emphasizes innovation, but the industry is not experienced to know the degree of risk and mitigation, which would not allow the FAA to proactively regulate the industry in a way that will encourage growth.

Related to the issue of ripeness, Section 301(d) would conflict with the learning period per 51 U.S.C. § 50905(c)(9), which would prevent the Secretary of Transportation or the Assistant Secretary for Commercial Space Transportation from pragmatically employing performance-based regulations until October 1, 2023, when the statutory learning period ends. 51 U.S.C. § 50905(c)(2)(C-D) gives the Secretary of Transportation limited authority to create regulations to respond to a fatality or a series of incidents during the learning period, but the nature of the exceptions only provide for prescriptive regulations and are not conducive to performance-based regulations. Nevertheless, the current learning period provides an opportunity for the FAA to collaborate with the commercial space industry and determine the level of risk and how to measure and create goals for performance-based regulation for the industry. To that end, the following amendment to Section 302(e) would be appropriate:

Sec. 302(e)(3) Coordination with Commercial Space Industry
During the learning period per Title 51, Section 50905, subsection (c)(9) and prior to its expiration the Assistant Secretary shall coordinate with the Commercial Space Transportation Advisory Committee (COMSTAC) to develop coherent baselines and measures for the commercial space industry from which the Assistant Secretary can create performance-based regulations as needed once the current learning period expires.

Sec. 302. Office of spaceports

Section 302(a) acknowledges a network of space transportation infrastructure is required for the growth of the commercial space industry. Section 302(a) would do so by first amending 51 U.S.C. § 50902 to include the definition of “spaceport” to mean:

“…any facility directly related to enabling spacecraft to launch or reentry, but only if such facility is located at, or in close proximity to, a launch site or reentry site that is a launch site operator licensed by the Federal Aviation Administration.”10

Section 302(a) would also amend 51 U.S.C. § 50924. Office of Spaceports and require the Assistant Secretary to designate a Director of the Office of Spaceports.11

Space Transportation Infrastructure Matching Grants

Section 302(b) would amend 51 U.S.C. § 51102 by including section 51102(c) to require the Secretary12 to set aside one-half of one percent of the funds made available per 49 U.S.C. § 48103, which authorizes funding for airport planning and development and noise compatibility planning and programs, for project grants to support space transportation infrastructure, including spaceports.13 The effect of Section 302(b) would be to allocate the specified percentage of the funds allocated by this statute to commercial space infrastructure.

GAO Study and Report

Section 302(d) would require the Comptroller General to conduct a study regarding spaceport activities at a spaceport per 51 U.S.C. § 50902.14 This report would include:
  • Funding options such as establishing a common user fee for launch providers or launch customers;
  • The adaptation of compliance requirements of the Airport Improvement Program15 for the unique operation of spaceports; and
  • Any necessary changes to improve the spaceport application review process.16

The GAO report, which would be due not later than one-year after the act is authorized, must distinguish between spaceports that are user-funded and those that are not.17

Department of Transportation Report

Section 302(e) would require the Secretary in collaboration with the Secretary of Defense, the Administrator of NOAA and the Administrator of NASA to submit to Congress a report within one-year after the act is authorized. The report must:

  • Describe the demand for launches and ways to improve and enhance space infrastructure;
  • Analyzes whether additional domestic spaceports, particularly spaceports capable of launch to polar orbits, are necessary to satisfy some of that demand; and
  • Outline any potential locations for these spaceports.18

Sec. 303. Situational awareness of objects in Earth orbit

Section 303 makes the following conclusions with regards to space situational awareness and orbital space debris as it relates to the private sector:

  • Earth’s orbit contains spacecraft and debris that poses a great danger to other objects on orbit;
  • The threat of collisions and increased space debris will only increase as barriers to access to space become lower, and the number and types of governmental, international, and commercial space actors continue to grow;
  • High-fidelity situational awareness of actors and objects in orbit is necessary to protect access to space and prevent catastrophic collisions; and
  • There are a growing number of commercial, academic, and international sources of space situation awareness data and analytical techniques that can significantly enhance the safety and efficiency of on-orbit activities.19

Bearing in mind these findings, Section 303(b) would create new statutory authority that allows the Secretary of Transportation to obtain space situational data from private sources. Section 302(b) amends Title 51, Chapter 509 to create a 51 U.S.C. § 50925.20

  • 51 U.S.C. § 50925(a)(1)(A) as intended by Section 303(b) would give the Secretary of Transportation discretion to obtain data and information from an entity for situational awareness of an object in Earth orbit and the state of the space environment.
  • 51 U.S.C. § 50925(a)(1)(B) as intended by Section 303(b) would require the Secretary to provide information and services for situational awareness of an object in Earth orbit and the state of the space environment to an entity if the Secretary determines providing that information or services contributes to the public health and safety, the safety of property, or the safety of persons in outer space and is consistent with the national security and foreign policy interests of the United States.21
To what extent will data generated by JSpOC or other federal agencies that is disseminated to the Secretary of Transportation, considering the level of fidelity of the data provided, implicate classified capabilities?

51 U.S.C. § 50925(a)(2) as intended by Section 303(b) would require the Secretary of Transportation to establish a Space Awareness Advisory Committee, which consists of commercial, academic, international, and government space situational awareness data and analysis experts. The Space Awareness Advisory Committee would advise the Secretary on all matters related to obtaining, and disseminating data and information regarding objects in Earth orbit and the state of the space environment to stakeholders and ensure the protection of sensitive national security information and intellectual property while maximizing the accuracy of data and information to improve safety, efficiency, and innovation.22

51 U.S.C. § 50925(b)(1-5) as intended by Section 303(b) would allow the Secretary of Transportation to provide information and services to and obtain data from any entity,23 including:

  • A state or political subdivision of a state;
  • Any other entity of the United States Government;
  • The government of a foreign country; or
  • A private or quasi-governmental entity organized under the laws of the United States or a foreign country.24

51 U.S.C. § 50925(c) as intended by Section 303 would not allow the Secretary of Transportation to provide space situational information to a non-governmental entity unless the entity agrees not to transfer any data or technical information received under the agreement, including the analysis of data, to any other entity without the express approval of the Secretary; and agrees to any other terms and conditions considered necessary by the Secretary.25

51 U.S.C. § 50925(f) as intended by Section 303 would grant the United States and any agency or individual acting for the United States immunity from suit in any court for any cause of action arising from the receipt or provision of space situational awareness information or services.26 This is consistent with the sovereign immunity of the United States government and appears to exclude situations where sovereign immunity is waived, including the Federal Torts Claims Act. That isn’t to say a suit would not be filed, but rather that, if a suit were was over a dispute arising from a service or information provided by 51 U.S.C. § 50925, the United States could assert sovereign immunity as an affirmative defense.

51 U.S.C. § 50925(h) as intended by Section 303(b) would require the Secretary of Transportation to develop a plan to implement the capability to provide space situational information and services. The plan must be developed within six months of the act being authorized and coordinated with the Secretary of Defense, Secretary of State, Secretary of Commerce, Administrator of NASA, the Director of National Intelligence, and any other agency heads the Secretary deems appropriate.27 The plan must be submitted to the Senate Select Committee on Intelligence; the House Permanent Committee in Intelligence; the Senate Armed Services Committee; the House Armed Services Committee; the Senate Committee on Commerce, Science, and Transportation; the House Committee on Transportation and Infrastructure; and the House Committee on Science, Space, and Technology.28 The implementation plan, including testing of necessary capabilities, must begin within one year of the plan’s submission.29

Section 303 would, in essence, create an information warehouse to gather and disseminate space situational information, a substantial portion of which would likely be obtained through national security assets such as those employed by US Strategic Command and its Joint Space Operations Center (JSpOC). The issue is to what extent data generated by JSpOC or other federal agencies will be disseminated to the Secretary of Transportation, considering the level of fidelity of the data provided may implicate classified capabilities? Section 303 might include the following amendment to create 51 U.S.C. § 50925(i), which would allow government agencies providing data to assess sensitivity and classify it before disseminating.

Data Fidelity and National Security.
(1) Government agencies supplying data to the Secretary of Transportation under this section shall not disseminate data to the extent the type or quality of the data would implicate national security and/or reveal classified national security capabilities.
(2) For the purposes of this section, the head of the government agency or department responsible for providing the data to the Secretary of Transportation will be the original classification authority pursuant to Executive Order 1353630 and shall make the determination as to whether the data implicates national security and/or reveals classified national security capabilities pursuant to Executive Order 13536.
(3) If the head of the government agency or department is not an original classification authority per Executive Order 13536 or the head of the government agency or department determines it does not have the authority per Executive Order 13536 to apply the appropriate level of classification, the head of the government agency shall coordinate with the Director of National Intelligence or another appropriate agency or department head with the requisite authority to apply the appropriate level of classification.

Sec. 304. Space traffic management

Section 304 addresses space traffic management by first adding the definition of “space traffic management” as paragraph 27 to 51 U.S.C. § 50902 to mean:

“a set of technical and regulatory provisions and processes used to oversee, coordinate, regulate, and promote safe and responsible space activities.”31

Section 304(a) would amend Title 51, Chapter 509, to establish 51 U.S.C. § 50926.32 The proposed section 50926, as intended by Section 304(a), would compel the Secretary of Transportation to designate a lead government agency for space traffic management activities and services, except for activities and services related to national security. The designation of lead agency would be in coordination with the Secretary of Defense, the Secretary of State, the Secretary of Commerce, the Administrator of NASA, the Director of National Intelligence, and any other heads of government agencies and departments deemed appropriate.33

Section 304 would relegate the dissemination and acquisition of space situational awareness information and services to the Secretary of Transportation per statute, but Section 304 does not automatically designate the Department of Transportation or the FAA via statute as the lead agency for space traffic management activities. This suggests Congress believes it’s better for the Executive Branch to determine which agency is best suited to take the lead.

51 U.S.C. § 50926(b) as intended by Section 304 would broadly outline the activities of the lead agency in carrying out space traffic management activities to include:

  • Using the information and services for situational awareness of objects in Earth orbit collected under section 50925; and
  • Take such actions as are necessary to minimize the collision of objects in Earth orbit that could jeopardize the safety of individuals in space degrade or destroy functional satellites, or lead to the creation of significant amounts of orbital debris.34

51 U.S.C. § 50926(c) as intended by Section 304 would require the designated lead agency to establish procedures via performance-based regulations35 to prevent collisions of objects in orbit. The procedures developed must clearly define the rationale for actions taken and the specific steps the lead agency will follow to reach any decisions and be clearly communicated. The designated lead agency would have to consider the following when developing procedures:

  • Compelling the movement of space objects; commenting on orbital regimes for non-governmental space objects during the launch or mission licensing process;
  • Requiring the placement of tracking devices on all objects launched into space; and
  • Restricting un-maneuverable satellites36 from specific, highly-congested orbital regions.37
If subsequent review of the data showed the satellite was not going to collide without the compelled maneuver, or the satellite is moved to a less favorable orbit for operations, the satellite operator may not have legal recourse.

51 U.S.C. § 50926(b-c) as intended by Section 304 would grant broad powers to the designated lead agency over non-government spacecraft.38 Conceivably, the powers under 51 U.S.C. § 50926 could overlap and supplant the powers of the FAA not only in terms of launch and reentry permitting but also implicate on-orbit operations as well. This infers Congress will either grant on-orbit authority to the designated lead agency or presume that authority through 51 U.S.C. § 50926(b).

The ramifications for commercial operators are significant. Consider if a commercial satellite operator is ordered by the designated lead agency to maneuver a satellite in low Earth orbit to avoid a potential collision. Per the authority in 51 U.S.C. § 50926(b) as intended by Section 304(a), the commercial operator would have to expend valuable maneuvering fuel to comply with the order and potentially shift into a less effective orbit for the satellite’s operation. The issue, though, is whether predictions will be accurate enough for the designated lead agency to make that decision. If subsequent review of the data showed the satellite was not going to collide without the compelled maneuver, or the satellite is moved to a less favorable orbit for operations, the satellite operator may not have legal recourse for the loss of value to its satellite because of the compelled maneuver, except to file suit in federal court for a taking under the 5th Amendment.39 This presumes the adjudication process in Section 304(c)40 does not create a statutory process that preempts a suit in federal court.41

Meeting of nations

Section 304(f) would require the Secretary of State to seek the convention of nations to develop a unified international space traffic management regime and to do so consistent with federal law, regulation, and any bilateral or multilateral agreements. Section 304(f) would require the Secretary of State to work in coordination with the Secretary of Defense, the Secretary of Transportation, the Secretary of Commerce, the Administrator of NASA, the Director of National Intelligence and the heads of other government agencies deemed appropriate by the Secretary.42

Section 304(f) has echoes of the International Code of Conduct for Outer Space Activities (ICoC), which appears at this juncture to be mortally wounded. There is the possibility some nations might see this as an avenue to resurrect the ICoC, but even if it does not play a part in space traffic management, the creation of the regime will certainly be susceptible to the same multilateral interests that overwhelmed that protocol. Regardless of the potential influence of the ICoC, this proposed regime creates many questions, such as how the infrastructure will be funded, who will fund and supply data for the regime, and the structure of the regime, including the inevitable bureaucracy that will arise.

Sec. 305. Space-based data

Section 305 addresses the acquisition of commercial space-based data for both weather and earth science. Section 305(a) contends:

  • The pace of development of new commercial space technologies and markets creates a beneficial opportunity for improving all space programs sponsored by the United States government.
  • Industry is developing smaller, more affordable satellites that can be deployed in distributed constellations and enables cheaper launch services.
  • These investments from the private sector can address critical government needs in space.43

Section 305(b) uses these findings to support the policy position that pertinent federal agencies should explore how to take advantage of the continued growth of commercial space technologies, data, products, infrastructure, and services, and establish programs to encourage the emergence of new commercial capabilities.44

Treatment of commercial space-based weather data

Section 305(c) would require NOAA to provide the minimum required amount of commercial weather data to the international community while ensuring the data provided is consistent with federal law and national space policy. Section 305(c) would direct the Administrator of NOAA to promulgate rules consistent with the National Space Policy45 vis-à-vis NOAA’s treatment of weather data acquired from commercial space-based systems, and specifically with regards to Resolution 4046 of the World Meteorological Organization. The rules would be due no later than 90 days after the act is authorized and must ensure NOAA does not release the minimum amount of data required under Resolution 40;47 and consider data release time delays, data tiers, and resolution restrictions.48

Report on Earth science missions

Section 305(d) seeks to explore the potential of using commercial space-based data for Earth science missions and would direct the NASA administrator to submit a report to both the House Science, Space, and Technology Committee and the Senate Committee on Commerce, Science and Transportation within 270 days of the act’s authorization. The report would include the following:

  • An evaluation of how emerging capabilities in industry can provide new or alternative architectures for Federal Earth science missions that routinely collect data about atmospheric, oceanic, or terrestrial phenomena;
  • An evaluation of how emerging capabilities in industry can provide new in-space platforms and services for affordable in-space technology demonstration, new sensor and instrument development, and other applications; and
  • A strategy for implementing new Federal programs that leverage such commercial capabilities, products, and services more rapidly and efficiently.49

Sec. 306. Department of commerce space-related activities

Section 306 focuses on reorganizing portions of the Department of Commerce to better support its space-related economic and regulatory activities to create stronger leadership in interagency functions related to space commerce activities and bringing benefits of space-based economic activities more directly to the Secretary of the Department of Commerce. Section 306(a) would require the Secretary to provide a report to Congress within 180 days of the act’s authorization concerning the reorganization of the Office of Commercial Remote Sensing Regulatory Affairs, the Office of Space Commerce, and the segments of the International Trade Administration Bureau of Industry and Security that may have exclusive space-related functions.50

Sec. 307. Commercial remote sensing licensing reform

Section 307 addresses Congress’ estimation 51 U.S.C. § 6012151 should be reformed to grant applicants for remote sensing licenses transparency to the perceptible issues being considered and which federal agency or department is involved in a commercial remote sensing licensing decision. Section 307 also recognizes the federal government should not limit commercial entities from providing remote sensing data products or capabilities that are already offered in the international marketplace and also asserts the Director of Commercial Remote Sensing Regulatory Affairs should take into account mitigation procedures in place under law or contract to protect national security before denying a license or placement of restrictions for remote sensing.52

Section 307(b) would amend 51 U.S.C. § 60121(c)53 to require:

  • The Secretary to review any license application and make a determination within 60 days of the receipt of a license application;
  • The Secretary to extend the review period by no more than 30 days if the Secretary determines that additional time is necessary; and
  • The Secretary to extend the review period more than 30 days if the reason for the extended review is due to national security concerns.54

Section 307(c), consistent with the transparency theme of Section 307, would amend 51 U.S.C. § 60121 with the addition of section 60121(f):

RATIONALE FOR DENIAL.—

(1) DENIAL PAPERWORK.—In any case in which the Secretary denies a license under this subchapter, the Secretary shall provide the applicant with a copy of the denial within 30 days of the denial, which shall identify any other Federal entity with which the Secretary consulted in making the decision. Subject to paragraph (2), the copy of the denial shall include a clearly articulated rationale for the denial.

(2) CLASSIFIED INFORMATION.—If the rationale for a denial described in paragraph (1) includes classified information, the Secretary shall provide to the applicant all such information for which the license applicant has the required security clearance.

(3) SUBMISSION TO CONGRESS.—Not later than 30 days after a license is denied under this subchapter, the Secretary shall submit to Congress a copy of the denial and the clearly articulated rationale for the denial, including all classified information.55

Retroactive licensing restrictions

Section 307(d) would require commercial remote sensing licensing restrictions only be changed retroactively for national security issues certified by the Director of National Intelligence. Section 307(d) would require affected entities to be compensated for lost revenue for services approved under the original remote sensing licensing if a retroactive change to remote sensing occurs and henceforth affects a license.56

List of approved countries for direct downlink

Section 307(e) would require the Secretary of Commerce, in consultation with the Director of National Intelligence, to keep a list of nations where commercial entities may receive an expedited licensing approval to directly downlink raw data and a valid export license for space-related technology.57 The purpose of Section 307(e) appears to identify foreign governments that will grant accelerated licensing approval for remote sensing data to US commercial entities so as to enable reciprocal licensing to commercial entities from those nations.

Regulations

Section 307(f) would require the Secretary of Commerce to issues a Notice of Proposed Rulemaking to revise 15 C.F.R. § 96058 to create different categories of remote sensing licenses. Revisions to 15 C.F.R. § 960 would take into account national security concerns, the type of entity applying for the license, the intended purpose of the license, and whether the license is for a one-time payload.59

Sec. 308. Weather

Section 308 takes up commercial space-based data buys by NOAA beginning in fiscal year 2018, which the Administrator of NOAA is required to include in its budget as a line item. Section 308(b) would require NOAA to include commercial solutions, including purchase of commercial data streams, to update or as part of its existing programs.60 Section 308(b) would require NOAA to avoid starting development of new programs unless commercial alternatives have been exhausted, at which point the Administrator of NOAA must certify to Congress no commercial capability or service can meet the new requirements to be developed.61 Section 308(c) would authorize appropriation for fiscal years 2017 through 2021 of $15 million, $30 million, $55 million, $90 million, and $180 million respectively for commercial space-based data buys.62

Sec. 309. American space competitiveness

Section 309 would comprehensively address the competiveness of US commercial space activities through authorizations to the FAA for regulation and amendments to Title 51, Chapter 509, which address exemptions to regulation, prizes for commercial space activities, liability insurance requirements, amendment to the Internal Revenue Code to credit payloads launched by domestic providers, a study on rescinding launch restrictions, a loan guarantee program for commercial space infrastructure and reservation of electromagnetic spectrum for commercial entities.63

Enhanced payload review and determination

Section 309(a) would require the Assistant Secretary for Commercial Space Transportation to issue regulations necessary for enhanced evaluation of payloads and activities to obtain a launch license per 51 U.S.C. § 5090564 and would amend 14 C.F.R. §§ 415.51-415.63, which address Payload Review and Determination.65 Section 301(a) would require the regulations to be amended to make the Assistant Secretary the final issuer of a launch or reentry license; provide enhanced appropriate coordination with the participation of DoD, Department of State, Department of Commerce, NASA, the Office of the Director of National Intelligence, and other relevant federal agencies; and evalute disclosures from the payload owner/operator to determine if a formal review and determination are necessary.66

If a launch or reentry license is denied, the Assistant Secretary must articulate a clear rationale about why the license was denied.

If a formal review and determination of the payload and associated activities are necessary, the Assistant Secretary would issue an approval or denial within 60 days after the payload owner/operator submits the payload for review.67 Section 309(a) would require regulations to be implemented so the review ensures the payload and associated activities are consistent with international treaty obligations, do not harm the national security interests of the United States, do not result in harmful interference with approved and operating payloads and associated activities68 and do not harm historic artifacts.69

If a launch or reentry license is denied, the Assistant Secretary must articulate a clear rationale about why the license was denied to the extent the rationale does not prejudice the Assistant Secretary in a subsequent payload review. The applicant is allowed access to classified information related to the extent the applicant has the appropriate security clearances.70 Section 309(a) would also require amendment to the pertinent regulations to require the payload owner or operator to inform the Assistant Secretary of any material changes to the payload or activities after the issuance of a launch license but prior to launch, and for the owner/operator of a payload to report any anomalies or departures from the submitted plan during the course of operations.71

Section 309(a) would also require amendment to regulations to allow for penalties for non-compliance of any condition in a launch or reentry license issued for the deployment of a payload and associated activities to include a maximum civil penalty of $1 million, which would be adjudicated in a federal district court, the allowance for forfeiture of a current launch license, and denial of future launch or reentry licenses for the payload owner/operator.72

Exemption from non-space transportation vehicle regulations

Section 309(b) amends Title 51, Chapter 509 to 51 U.S.C. § 50924, which excludes any vehicle design or mission under this section from FAA aircraft regulations. The pertinent language of the amendment reads as follows:

§ 50924. Exemption from non-space transportation vehicle regulations

“No vehicle design or mission holding a permit or license under this chapter for purposes of space transportation shall be subject to any regulations promulgated by the Federal Aviation Administration for purposes of regulating non-space transportation vehicles.”73

Prize account

Section 309(c) would amend Title 51, Chapter 509 to 51 U.S.C. § 50507, which allows for the establishment of prizes for commercial space activities. 51 U.S.C. § 50507(a) as intended by Section 309(c) would establish a prize for certain licensed space-related commercial activities. 51 U.S.C. § 50507(b) as intended by Section 309(c) lists eligible activities to include:

  • Operation of space stations beyond low-Earth orbit housing space flight participants or scientific experiments;
  • Lunar missions;
  • Asteroid missions;
  • Mars missions;
  • Debris clean up and salvage;74 and
  • Point-to-point missions on Earth.75

51 U.S.C. § 50507(c), as intended by Section 309(c), would require the Assistant Secretary to determine requirements for qualification of a prize and the amount of the prize in relation to the activity performed.76

Liability insurance and financial responsibility requirements

The effect of Section 309(d) is to include state and municipal governments in the liability scheme of 51 U.S.C. § 50914.77 Section 309(d) amends 51 U.S.C. § 50914, “Liability insurance and financial responsibility requirements,” and replaces § 50914(e) to read:

“The Secretary of Transportation shall establish requirements consistent with this chapter for proof of financial responsibility and other assurances necessary to protect Federal, State, and municipal governments and their executive agencies and personnel from liability, death, bodily injury, or property damage or loss as a result of a launch site or reentry site or a reentry involving a facility or personnel of a Federal, State, or municipal government. The Secretary may not relieve a Federal, State, or municipal government of liability under this subsection for death, bodily injury, or property damage or loss resulting from the willful misconduct of the Federal, State, or municipal government or its agents.”78

Credit for payloads launched by domestic launch providers

Section 309(e) would amend the Internal Revenue Code to 26 U.S.C. § 45S, “Space Payloads Launched by Domestic Launch Providers.” Section 309(e) creates a general business credit for the taxable year of 10 percent of the sum of the insured value of the payloads of the taxpayer launched by a domestic launch provider or on a launch vehicle that meets the requirements of the “Buy American Act.”79 For purposes of the tax credit, a payload is considered launched if the ignition of the a main engine occurs on the launch pad, a spaceport runway, or when released from an airborne platform.80 This means that even if the launcher fails or the payload is lost, the tax credit could still be used.

Study on lifting certain launch restrictions

Section 309(f) would allow a domestic commercial payload owner/operator to petition the United States Trade Representative (USTR)81 to lift restrictions on the use of Indian launch vehicles for the launch of domestic payloads. Before lifting the restriction, the USTR would have to notify the Comptroller General of its intent to lift the restriction and allow for a 30-day comment period. The USTR would also have to submit a study on the ramifications of the lifting the restrictions on the domestic launch industry.82 Section 309(f) would be controversial because of the potential negative impact on the growing domestic commercial launch industry and would be met with heavy resistance from not only commercial launch providers but others in the commercial space industry lobby as well.83

Loan guarantee program

Section 309(g) would establish a loan guarantee program to promote the creation of jobs in the United States space sector to include manufacturing, construction, operations and to encourage the creation of jobs.84 Section 309(g) would require the Secretary of Transportation, the NASA Administrator, the Director of National Intelligence, and Secretary of Defense to create a list of space sector activities that would qualify for loan guarantees.85 Activities that might be considered as eligible include:

  • Manufacturing of satellites; space transportation vehicles; and habitats.
  • Hardware necessary for operations of satellites and other space vehicles, such as control centers and other ground stations.
  • Construction of, upgrades to, and maintenance of infrastructure necessary to support the space industry.
  • Technology research and development activities determined by the Secretary to have the potential to advance the state of space-related technology in the United States.86
The act provides a comprehensive attempt to augment the triad of US space activities and provides valuable legislative nuggets that can be taken from the bill, fine-tuned, and inserted into other legislative measures.

Section 309(g) would provide loan guarantees not only for specific commercial space program but also for space-related infrastructure to grow the commercial space sector. With loan guarantees in place, the commercial space sector will clearly benefit, but so will the civil and national security space sectors in terms of access to a greater selection of providers and more competition.

Electromagnetic spectrum for commercial space activities

Section 309(h) asserts the policy stance that commercial space launch services have expanded over the past several years and are expected to continue growing to the benefit of national security and civil space interests; and that commercial space launch services will require assured access to the appropriate electromagnetic spectrum for their launch-related mission requirements.87 Section 309(h) would require the Federal Communications Commission and the Assistant Secretary of Commerce for Communications and Information to take actions to streamline the process for the commercial space launch sector to obtain authorization for use of the necessary frequencies in the electromagnetic spectrum within 180 days after the act is authorized.88 Section 309(h) requires the FCC and the Assistant Secretary of Commerce for Communications and Information to take the following actions:

  • Ensure the process for obtaining an authorization (including the application process and the process for coordination between the Commission and the Assistant Secretary, and coordination between commercial space launch companies and other users of the spectrum) is standardized and clearly defined;
  • Minimize the number and complexity of authorizations required per launch mission, to the extent practicable; and
  • Allocate electromagnetic spectrum for commercial space launch activities on a co-primary, interference-protected basis.89

Sec. 310. Space training aircraft

Section 310 would direct the Secretary of Transportation to establish a program to allow commercial entities to carry out space training flights with aircraft, including experimental aircraft, holding valid airworthiness certificates.90 Per Section 310(b), space flight training flights under this program would not be subject to the aircraft certification requirements in 14 C.F.R. § 121 nor the requirement for the operation of experimental aircraft in 14 C.F.R. § 91.91 A space training flight would be exempt from 14 C.F.R. § 91 if:

  • The flight originates and terminates at an FAA-licensed spaceport;
  • The commercial entity operating the space training flight provides written notification to all passengers describing the exemptions such flight qualifies for under this section; and
  • All passengers of the flight provide the commercial entity with written consent.92

Section 310 appears to be aimed at commercial operators who will provide suborbital flights, air-launch services, and zero-training flights. Significantly, Section 310 does not define “passengers” but it likely the use of the term is consistent with the usage of the term throughout the Code of Federal Regulations. Also, Section 310 does not distinguish whether space training flights need be revenue or non-revenue generating.

Sec. 311. Workforce enhancement

Section 311 would amend the Internal Revenue Code, specifically, 83 U.S.C. § 83. “Property transferred in connection with performance of services.” Section 311 would amend section 83 to section 83(i) to benefit individual taxpayers as follows:

(i) STOCK OR OPTION-RELATED COMPENSATION TRANSFERRED BY A STARTUP DOMESTIC COMMERCIAL SPACE COMPANY.—

(1) IN GENERAL.—Any person described in paragraph (2) may elect to include in his gross income for the taxable year in which such person sells or otherwise disposes of stock or options described in paragraph (2) in an arm’s length transaction, the excess of—

(A) the fair market value of such property at the time of such sale or disposition (determined without regard to any restriction other than a restriction which by its terms will never lapse), over

(B) the amount (if any) paid for such property. If such election is made, subsection (a) shall not apply with respect to the transfer of such stock or option.

(2) PERSON DESCRIBED.—A person is described in this paragraph if the person—

(A) performs services in connection with which stock or option-related compensation is transferred by a domestic commercial space company during any taxable year in which the company incurs start-up expenditures (whether or not claimed by such company), and

(B) does not own or is considered as not owning within the meaning of section 318—

(i) more than 1 percent of the outstanding stock of the corporation or stock possessing more than 1 percent of the total combined voting power of all stock of the corporation, or

(ii) if the employer is not a corporation, does not own more than 1 percent of the capital or profits interest in the employer,

(3) DOMESTIC COMMERCIAL SPACE COMPANY.—The term ‘domestic commercial space company’ means a company engaging in a line of business unique to a space company, such as launch, satellite operations, software development, satellite manufacturing, spacecraft manufacturing, and space transportation vehicle manufacturing, with operations and employees based in the United States.

(4) START-UP EXPENDITURES.—The term ‘start-up expenditures’ has the meaning given such term by section 195.93

Closing thoughts

Title III of the American Space Renaissance Act seeks to advance the commercial space industry and, for the most part, proposes a policy and regulatory environment to enhance the environment for growth in the industry but also require culpability. While not as controversial in its policy stance as Title II’s civil space provisions, Title III offers pragmatic policies that are modular, which will allow certain provisions to be extracted and seamlessly introduced into other legislative acts should the entire title not be politically palatable.

In conclusion, there are many things to like about the American Space Renaissance Act, but there are controversial segments that will face opposition from special interests and within Congress and the Executive Branch. Nevertheless, the act provides a comprehensive attempt to augment the triad of US space activities and provides valuable legislative nuggets that can be taken from the bill, fine-tuned, and inserted into other legislative measures. Many commentators will ridicule and condemn the American Space Renaissance Act in its entirety because of its controversial provisions, but such condemnation ignores the potential value of other sections of the legislation. Those portions of the act that find their way into other pieces of legislation and the discussion about those portions that do not at the very least make Rep. Jim Bridenstine’s efforts with the American Space Renaissance Act a worthwhile endeavor.

Endnotes

  1. American Space Renaissance Act, 114th Congress, 2D Session, Title III, Sec. 301(a), p. 67.
  2. Id. at Section 301(b), p. 67.
  3. Id. at Sec. 301(b), p.68.
  4. Id. at Sec. 301(c), p. 68
  5. Id. at Sec. 301(d), pp. 68-69.
  6. Federal Aviation Administration: Commercial Space Launch Industry Developments Present Multiple Challenges GAO-15-706: Published: Aug 25, 2015. Publicly Released: Sep 21, 2015.
  7. American Space Renaissance Act, 114th Congress, 2D Session, Title III, Sec. 301(d)(3), p. 69.
  8. Performance-based regulation is a regulatory approach that focuses on desired, measurable outcomes, rather than prescriptive processes, techniques, or procedures. Performance-based regulation leads to defined results without specific directions regarding how those results are to be obtained.
  9. American Space Renaissance Act, 114th Congress, 2D Session, Title III, Sec. 301(e), pp. 69-70.
  10. American Space Renaissance Act, 114th Congress, 2D Session, Title III, Sec. 302(a), p. 70.
  11. Id. at Sec. 302(a), pp. 70-71.
  12. Section 302(b), would amend 51 U.S.C. § 51101 to define the term “Secretary” and “Secretary of Transportation” to mean Secretary of Transportation, acting through Director of the Office of Spaceports.
  13. American Space Renaissance Act, 114th Congress, 2D Session, Title III, Sec. 302(b), pp. 71-72.
  14. Section 302(f) would permit the Assistant Secretary to collaborate with the relevant State or local government or private industry representing the location of the spaceport in order to facilitate the establishment and licensing of the spaceport if the report contains a recommendation for the location of a spaceport
  15. The Airport Improvement Program (AIP) provides grants to public agencies and, in some instances, private owners and entities to plan and develop of public-use airports included in the National Plan of Integrated Airport Systems (NPIAS).
  16. American Space Renaissance Act, 114th Congress, 2D Session, Title III, Sec. 302(d), p. 72.
  17. Id. at Sec. 302(d), p. 73.
  18. Id. at Sec. 302(e), p. 73.
  19. American Space Renaissance Act, 114th Congress, 2D Session, Title III, Sec. 303(a)(1-4), p. 74.
  20. See generally, Id. at Sec. 303(b), pp. 75-80.
  21. Id. at Sec. 303(b), p. 75.
  22. Id. at Sec. 303(b), pp. 75-76.
  23. 51 U.S.C. § 50925(e) would require a contractor to act as conduit to provide any information and services per Section 303 to the extent practicable.
  24. American Space Renaissance Act, 114th Congress, 2D Session, Title III, Sec. 303(b), p. 76.
  25. Id. at Sec. 303(b), pp. 76-77.
  26. Id. at Sec. 303(b), p. 77.
  27. Id. at Sec. 303(b), p. 78.
  28. Id. at Sec. 303(b), pp. 78-79.
  29. Id. at Sec. 303(b), p. 79.
  30. See generally, Exec. Order No. 13,526, 75 Fed. Reg. 707 (Jan. 5, 2010).
  31. American Space Renaissance Act, 114th Congress, 2D Session, Title III, Sec. 304(a), p. 80.
  32. Id. at Sec. 304(a), pp. 80-82.
  33. Id. at Sec. 304(a), pp. 80-81.
  34. Id. at Sec. 304(a), p. 81.
  35. See generally, Section 301(e), pp. 69-70. See also supra, pp. 2-3.
  36. The majority of cubesats reside in LEO and do not have maneuvering capability, which would garner a license for a cubesat the additional scrutiny from the designated lead agency in addition to regulatory licensing through NOAA or the FCC.
  37. American Space Renaissance Act, 114th Congress, 2D Session, Title III, Sec. 304(a), pp. 81-82.
  38. Section 304(d) prohibits the FAA Office of Air Traffic Organization or any other air traffic control entity from performing any of the space traffic management activities in 51 U.S.C. § 50926. See Id. at Sec. 304(e), pp. 82-83.
  39. A taking under the 5th Amendment has been given broader meaning than when the government physically seizes property. A taking has been broadly applied where government regulations, which have been enacted to secure some sort of public benefit, fall disproportionately on some property owners and cause significant decrease of property value. The legal question in the case of satellite would whether an erroneous order to compel a satellite operator to expend maneuvering fuel and/or an order to shift the satellite to a different orbit where its function is diminished would reduce the value of the satellite and whether that reduction of value reaches the level of a taking.
  40. Section 302(c) requires the Secretary of Transportation to submit a report to Congress within one-year of the Act’s authorization on the adjudication processes, including statutory and regulatory recommendations, for actors affected by 51 U.S.C. § 50926.
  41. A practical solution aside from the expense of a takings lawsuit would be for the insurance market to offer coverage as part of the satellite’s overall insurance policy for orbital maneuvers compelled by the designated lead agency to the extent the insurance would compensate the loss of the satellite’s on-orbit life due to the compelled maneuver.
  42. American Space Renaissance Act, 114th Congress, 2D Session, Title III, Sec. 304(f), pp. 83-84.
  43. American Space Renaissance Act, 114th Congress, 2D Session, Title III, Sec. 305(a), p. 84.
  44. Id. at Sec. 305(b), p. 84.
  45. Section 305(c) refers to the Commercial Space Guidelines section of the National Space Policy, specifically the directive to “[p]urchase and use commercial space capabilities and services to the maximum practical extent when such capabilities and services are available in the marketplace and meet United States Government requirements.” See National Space Policy of the United States of America, June 28, 2010, Commercial Space Guidelines, p. 10.
  46. See generally, WMO Policy and Practice for the Exchange of Meteorological and Related Data and Products Including Guidelines on Relationships in Commercial Meteorological Activities, Resolution 40, October 26, 1996.
  47. Resolution 40 of the WMO Policy and Practice for the Exchange of Meteorological and Related Data and Products Including Guidelines on Relationships in Commercial Meteorological Activities requires the following:
    • Members shall provide on a free and unrestricted basis essential data and products which are necessary for the provision of services in support of the protection of life and property and the well-being of all nations, particularly those basic data and products, as, at a minimum, described in Annex 1 to this resolution, required to describe and forecast accurately weather and climate, and support WMO Programs;
    • Members should also provide the additional data and products which are required to sustain WMO Programs at the global, regional, and national levels and, further, as agreed, to assist other Members in the provision of meteorological services in their countries. While increasing the volume of data and products available to all Members by providing these additional data and products, it is understood that WMO Members may be justified in placing conditions on their re-export for commercial purposes outside of the receiving country or group of countries forming a single economic group, for reasons such as national laws or costs of production;
    • Members should provide to the research and education communities, for their non-commercial activities, free and unrestricted access to all data and products exchanged under the auspices of WMO with the understanding that their commercial activities are subject to the same conditions identified in ADOPTS (2) above.
  48. American Space Renaissance Act, 114th Congress, 2D Session, Title III, Sec. 305(c), p. 85.
  49. Id. at Sec. 305(d), pp. 85-86.
  50. American Space Renaissance Act, 114th Congress, 2D Session, Title III, Sec. 306(a), pp. 86-87.
  51. 51 U.S.C. § 60121 is part of the Land Remote Sensing Policy that codifies licensing requirements and restrictions for commercial remote sensing.
  52. American Space Renaissance Act, 114th Congress, 2D Session, Title III, Sec. 307(a) pp. 87-88.
  53. 51 U.S.C. § 60121 - DEADLINE FOR ACTION ON APPLICATION currently reads as “[t]he Secretary shall review any application and make a determination thereon within 120 days of the receipt of such application. If final action has not occurred within such time, the Secretary shall inform the applicant of any pending issues and of actions required to resolve them.”
  54. American Space Renaissance Act, 114th Congress, 2D Session, Title III, Sec. 307(b) pp. 88-89.
  55. Id. at Section 307(c), pp. 89-90.
  56. Id. at Section 307(d), pp. 90-91.
  57. Id. at Section 307(e), p. 91.
  58. 15 C.F.R. § 960 deals generally with federal regulations for the licensing of private remote sensing systems.
  59. American Space Renaissance Act, 114th Congress, 2D Session, Title III, Sec. 307(f) pp. 91-92.
  60. NOAA issued a Commercial Space Policy in January 2016 that deals in part with commercial data buys.
  61. American Space Renaissance Act, 114th Congress, 2D Session, Title III, Sec. 308(a-b) pp. 92-93.
  62. Id. at Sec. 308(c), p. 93.
  63. American Space Renaissance Act, 114th Congress, 2D Session, Title III, Sec. 309, pp. 93-106.
  64. Section 309(a) would be consistent with the requirement in 51 U.S.C. § 50905(d), which requires the Secretary shall establish procedures and timetables that expedite review of a license or permit application and reduce the regulatory burden for an applicant.
  65. Section 309(a)(3) would stipulate regulations promulgated under this section would not apply to payload or activities subject to regulation by the FCC, the Secretary of Commerce, or any mission conducted with one or more federal agencies.
  66. American Space Renaissance Act, 114th Congress, 2D Session, Title III, Sec. 309(a)(2)(A-C), pp. 94-95.
  67. Id. at Sec. 309(a)(2)(C)(i), p. 95
  68. Id. at Sec. 309(a)(2)(C)(ii), pp. 95-96.
  69. Section 309 does not define “historic artifact”.
  70. American Space Renaissance Act, 114th Congress, 2D Session, Title III, Sec. 309(a)(2)(C)(iii), p. 96.
  71. Id. at Sec. 309(a)(2)(C)(iv), pp. 96-97.
  72. Id. at Sec. 309(a)(2)(C)(v), pp. 96-97.
  73. Id. at Sec. 309(b), p. 98.
  74. Section 309(c)’s mention of salvage is misapplied and is likely confused with the maritime concept of the law of finds, which allows a finder to acquire title to abandoned property by reducing the property to personal possession. See Odyssey Marine Exploration, Inc. v. Unidentified, Wrecked and Abandoned Sailing Vessel, 727 F.Supp.2d 1341, 1344 (M.D.Fla. 2010). The purpose of salvage in the context of maritime law is to encourage persons to render prompt, voluntary, and effective service to ships at peril or in distress by assuring them compensation and reward for their salvage efforts. Rather than obtaining title to the salvaged property, a salvor acts on behalf of the property's owner, thereby obtaining a security interest or lien against the property saved. See R.M.S. Titanic, Inc. v. The Wrecked & Abandoned Vessel, 742 F.Supp.2d 784, 793 (E.D.Va. 2010). In other words, a salvor is entitled to remuneration for its efforts and not possession. There are two types of salvage recognized by maritime law: There is contract salvage where a salvage service is entered into between the salvor and the owners of the imperiled property, or by their respective representatives, pursuant to an agreement, written or oral, fixing the amount of compensation to be paid whether successful or unsuccessful in the enterprise. In contrast, there is pure salvage, which is a voluntary service rendered to imperiled property on navigable waters where compensation is dependent upon success without prior agreement or arrangement having been made regarding the salvor's compensation." See New Bedford Marine Rescue, Inc. v. Cape Jeweler's Inc., 240 F.Supp.2d 101 (D. Mass. 2003) at Footnote 1, citing 3A Martin J. Norris, Benedict on Admiralty § 159 (2002). Significantly, federal warships are not subject to pure salvage nor subject to the law of finds, unless they are expressly abandoned. See Sea Hunt v. Unidentified Shipwrecked Vessel, 221 F.3d 634, 643 (2000). Similar to this principal, the Outer Space Treaty grants a nation continuous possession over an object registered under its jurisdiction. Neither pure salvage or the law of finds in the maritime tradition are legitimized by the Outer Space Treaty yet the term “salvage” is often misused in the context of space objects and more often confused with the law of finds. There is the prospect Congress could amend Title 51, Chapter 509 to create a private interest in “salvage” similar to contract salvage for space objects registered to the United States, which would be consistent with the Outer Space Treaty.
  75. American Space Renaissance Act, 114th Congress, 2D Session, Title III, Sec. 309(b), pp. 98-99.
  76. Id. at Section 309(c), p. 99.
  77. 51 U.S.C. § 50914 was recently amended by the Commercial Space Launch Competitiveness Act on November 25, 2015.
  78. American Space Renaissance Act, 114th Congress, 2D Session, Title III, Sec. 309(d), pp. 100-101.
  79. See 41 U.S.C. § 8302(a)(1) (popularly known as the ‘‘Buy American Act’’).
  80. American Space Renaissance Act, 114th Congress, 2D Session, Title III, Sec. 309(e), pp. 101-102.
  81. The Office of the U.S. Trade Representative (USTR) is responsible for developing and coordinating U.S. international trade, commodity, and direct investment policy, and overseeing negotiations with other countries. The head of USTR is the U.S. Trade Representative, a Cabinet member who serves as the president’s principal trade advisor, negotiator, and spokesperson on trade issues. See generally, Office of the U.S. Trade Representative.
  82. American Space Renaissance Act, 114th Congress, 2D Session, Title III, Sec. 309(f), pp. 102-103.
  83. Aside from the issue of lifting restrictions, ITAR licenses may have to be acquired as well as exceptions to the National Space Transportation Policy if the primary payload contains a DoD hosted payload.
  84. Id. at Sec. 309(g)(1-2), pp. 103-104.
  85. Id. at Sec. 309(g)(3)(A), p. 104.
  86. Id. at Sec. 309(g)(3)(B), pp. 104-105.
  87. Id. at Sec. 309(h)(1), pp. 105-106.
  88. Id. at Sec. 309(h)(2), p.105.
  89. Id. at Sec. 309(h)(2)(A-C), pp. 105-106.
  90. American Space Renaissance Act, 114th Congress, 2D Session, Title III, Sec. 310(a), p. 107.
  91. Id. at Sec. 310(b), p. 107.
  92. Id. at Sec. 310(c), p. 108.
  93. American Space Renaissance Act, 114th Congress, 2D Session, Title III, Sec. 311, pp. 108-110.

Michael J. Listner is an attorney and the founder and principal the legal and policy think tank, Space Law & Policy Solutions, which identifies issues and offers pragmatic solutions relating to outer space law, policy, security and development. He is also the author and administrator of the space law and policy blog Space Thoughts.

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