The Space Reviewin association with SpaceNews

SpaceShipTwo on a May 1 glide flight. Growth of the commercial space industry, including launch, is leading some industry officials to press for policy changes. (credit: Virgin Galactic)

Commercial space’s policy wish list

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Two space-related events on opposite ends of Pennsylvania Avenue in Washington last week had varying degrees of sizzle and substance. On Monday, President Trump hosted a video call in the Oval Office with NASA astronauts Peggy Whitson and Jack Fisher on the International Space Station. The purpose of the call was primarily to celebrate Whitson’s breaking the US record for cumulative time spent in space.

“We want to work with AST on the impending licensing traffic jam before they start taking on orbital traffic jams,” Meyerson said of the priorities of the FAA’s space office.

Trump, though, made headlines when he suggested that he would speed up NASA’s plans for sending humans to Mars. “Well, we want to try and do it during my first term or, at worst, during my second term,” he said when Whitson said NASA’s current plans called for humans to Mars in the 2030s. “So we’ll have to speed that up a little bit, okay?” There seems, though, to be little sign that the administration is, in fact, speeding up NASA’s plans, and key near-term questions—who will be the next NASA administrator, and when will the White House, as anticipated, reestablish the National Space Council—remain unanswered.

Two days later, the space subcommittee of the Senate Commerce Committee held a hearing on commercial space regulatory issues. That hearing didn’t attract the headlines of the Trump interview, but it did offer much more substance, in the sense of what the commercial space industry would like to see changed in federal regulation of, and support for, their industry, presented to an audience of senators who seemed open to considering those changes.

Regulatory issues

The hearing’s witnesses included the heads of four commercial space companies: Bigelow Aerospace, Blue Origin, Made In Space, and Virgin Galactic. Given that composition, it’s not surprising many had recommendations for how commercial launch activity is regulated by the FAA’s Office of Commercial Space Transportation (AST).

“AST must have sufficient resources to successfully undertake its current responsibilities in an era of increased space launch activity,” said George Whitesides, CEO of Galactic Ventures, the Virgin business unit that includes suborbital vehicle operator Virgin Galactic and smallsat launch vehicle developer Virgin Orbit.

He reiterated that point later in the hearing. “The reality is that AST is a very small fraction, right now, of the FAA’s budget,” he said, arguing that growing in launch activity “is going to drive significant resource demands inside of AST.”

“It’s maybe rare for companies to be pushing for more funding for their regulators, but we really think this is a case where it could be a good investment for the country,” he added.

“We encourage this subcommittee to study and consider a permanent indemnification regime for the US launch industry,” Whitesides said.

Rob Meyerson, president of Blue Origin, agreed—to a point. “AST’s budget has remained flat for several years while the number of launches has continuously increased,” he said. “We join the rest of the commercial spaceflight industry in urging Congress to increase funding for AST to allow the office to operate as a responsive and effective agency.”

However, Meyerson suggested that AST hold off on its interest in moving into other areas, such as regulation of on-orbit activities or space traffic management. “We encourage Congress to ensure that AST is prioritizing its resources on its current statutory mission,” he said. “We want to work with AST on the impending licensing traffic jam before they start taking on orbital traffic jams.”

(The companies will get their wish, at least to some degree, for 2017. An omnibus spending bill for the federal government released early Monday, May 1, offers $19.2 million for AST, $2 million higher than what it received in 2016.)

Meyerson also took issue with the regulation of launch activities at federal ranges. Blue Origin is developing an orbital launch vehicle, New Glenn, that the company plans to start launching around 2020 from a pad at Cape Canaveral Air Force Station. That vehicle’s first stage is designed to be reusable, landing at a ship at sea like some SpaceX Falcon 9 missions.

The problem, Meyerson said, is that the company is getting “conflicting expectations” from the Air Force and the FAA on what’s required to license and operate New Glenn from the Cape. “This conflict stems from the lack of federal adaptation to the market, which is transitioning from expendable rockets to reusable rockets,” he said. “In contrast to those for expendable rockets, the Air Force and AST licensing requirements for reusable rockets are completely different from each other.”

That results in the company developing “entirely different, but equally rigorous” deliverables to each agency. “This is duplicative and onerous, and will increase costs, delays, and uncertainty,” he said. Later, when asked by subcommittee chairman Sen. Ted Cruz (R-TX) what his key issues are, he called for the “designation of the FAA as the sole lead agency for licensing commercial space launches independent of the location of the range.”

Whitesides also had other regulatory issues he wanted to see action on. One involves so-called “hybrid launch systems” that include both an aircraft and a launch vehicle: WhiteKnightTwo and SpaceShipTwo, and LaunchOne and its 747 carrier aircraft. That creates potential licensing issues between the space and aviation divisions of the FAA, which he said is, for now, being handled on a case-by-case basis between the relevant FAA officers and the company.

“In the future, as more vehicles and flights come on line, streamlining the regulatory environment for hybrid vehicles would be a welcome improvement,” he said.

Whitesides also called for a permanent extension of the current launch indemnification regime, where commercial launches must carry insurance for third-party damage and casualties up to a “maximum probable loss” value determined as part of the licensing process. Any damage beyond that—a circumstance yet to take place—would be covered by the federal government, pending appropriation by Congress.

That system has required renewal every several years by Congress, most recently until 2025, which creates uncertainty in the industry about whether, in fact, it will be renewed each time it comes due. “We encourage this subcommittee to study and consider a permanent indemnification regime for the US launch industry,” he said.

“We need a stepwise transition to allow us to expand operations, first on ISS, and then perhaps next on a commercial module attached to ISS, and then ultimately to a free flyer,” said Rush.

Andrew Rush, CEO of Made In Space, a company that has developed 3-D printers flown on the ISS and with plans for more ambitious space manufacturing, said he’d like assurances that what the company develops in space will receive intellectual property protection and can be imported back to Earth.

Rush, formerly a lawyer working on intellectual property issues, said he’d like “an affirmation that intellectual property that is developed in space by companies operating in space, whether that be within a government facility or without, be retained whole by the company that produced that intellectual property.”

“Further, as a company that is seeking to manufacture goods on US spacecraft and on US modules, we’d like to see those modules and spacecraft continue to be treated as US soil,” he said, “so that one day, when we’re manufacturing a wide variety of high-value goods in space and bring them back, there’s no question they’re not subject to any sort of import or customs tax.”

Competition versus cooperation

Made In Space has built its business up in large part because its work with NASA. Unlike the other three companies at the hearing, it does not have a wealthy benefactor, nor has it take in outside investment. It’s been able to take “small, practical steps,” Rush said, thanks to NASA, including its Small Business Innovation Research (SBIR) grant program as well as access to the ISS and, through the Flight Opportunities program, parabolic aircraft flights.

“Without infrastructure like the Flight Opportunities program, the SBIR program, and the International Space Station, we could not have developed this capability at the price that we developed it nor in a step-by-step fashion,” he said.

Rush called on NASA and the Center for the Advancement of Science in Space, which operates the portion of the ISS designated a US national laboratory, to “more fully embrace commercial pathfinding on the ISS and commercial profit-making on there.” Ultimately, he said, his company and others want to be customers for commercial space stations, particularly as the ISS approaches retirement some time in the 2020s. Those stations, he said, can’t close their business case without tenants like him.

“We can’t jump from making a little bit of money, or no money, to paying for a significant portion of one of his modules,” he said, referring to Robert Bigelow of Bigelow Aerospace. “We need a stepwise transition to allow us to expand operations, first on ISS, and then perhaps next on a commercial module attached to ISS, and then ultimately to a free flyer.”

Bigelow, in his testimony at the hearing, endorsed continued use of Space Act Agreements by NASA to support industry activities, while also calling on NASA to do more to plan for a post-ISS future. “NASA is too vital a customer to ignore” for commercial space stations, he said. “NASA needs the necessary funding and policy direction to transition from the ISS to supporting space missions based on utilization of commercially-supplied space habitats and other transportation assets.”

Bigelow suggested that, while NASA has made great strides with commercial cargo and crew vehicle development, it needs to do more for supporting commercial stations. “NASA is too focused on just transportation systems to the ISS,” he said. “Everyone wants to know what are NASA’s plans to transition out of the ISS. Whether the ISS continues or not, additional destinations besides the ISS are vital to sustain a viable space cargo and crew enterprise with new markets that eventually replace the ISS.”

“I think the treaty needs to be updated,” Bigelow said. “That treaty was cast in a timeframe where the United States and Russia didn’t know who was going to be reaching the Moon first.”

Other witnesses, though, worried about potential competition with government agencies or companies backed by the government. “As the government seeks to develop new and innovative space capabilities, whether for civil or defense purposes, it should encourage partnerships with the commercial space sector through firm fixed-price contracts and efficient acquisition strategies,” Whitesides said. “Above all, the government should refrain from using taxpayer dollars to fund programs that directly compete with commercially available or emerging services.”

He called out one particular issue that is of concern to Virgin Orbit and other companies developing small launch vehicles. “The government should continue its long-standing policy forbidding the commercial use of excess ICBM assets, or else risk a catastrophic impact on the US launch industrial base that would undermine national security and civil space objectives,” he said. With new vehicles under development, he said, “there is no reason to change this long-standing policy.”

Outer Space Treaty changes?

One of the biggest proposed changes, though, came not from any of the witnesses but from Sen. Cruz himself. In his opening statement, he suggested that it may be time to revisit the Outer Space Treaty of 1967, an accord upon which most of international space law is based.

“As we look to the future of American free enterprise and settlement in space, we should also thoroughly review the United Nations’ Outer Space Treaty, which was written and enacted in a very different time and era in 1967,” he said. “It’s important that Congress evaluate how that treaty, enacted 50 years ago, will impact new and innovative activity within space.”

Cruz didn’t elaborate on what he would like to see changed in the treaty through an amendment process that would have to be done at the international level. In the past, some commercial space advocates have called for changes, ranging from how their activities receive “authorization and continuing supervision” by national governments to allowing companies to make property claims on celestial bodies or resources they extract from them.

Of the four witnesses, the only one who commented on potential changes to the treaty, when asked by Cruz, was Bigelow. “I think the treaty needs to be updated,” he said. While some aspects of the treaty are fine today, he said, others crafted in the early years of the Space Age—and at the height of the Space Race between the US and USSR—seem dated.

“That treaty was cast in a timeframe where the United States and Russia didn’t know who was going to be reaching the Moon first,” he said. They didn’t consider “that commercial folks would have the wherewithal or the audacity to be thinking about traveling to the Moon and conducting business there.”

Now that such “commercial folks,” including Bigelow Aerospace, are thinking about lunar missions, he said it’s time to consider how their activities can be protected under the treaty. That includes the definition of a buffer zone, or a zone of exclusion, around future lunar and other facilities to ensure that operators can carry out activities there without interference—and, perhaps, have rights to the resources within those zones.

“It’s very difficult to not want that if you’re a company that is promoting mining,” he said of such zones. “You’re not asking for ownership of the regolith but ownership of what you extract.”

Future plans

Making changes to the Outer Space Treaty would likely be a very long, and uncertain, process, but other requested changes to federal law and regulations could be enacted much more quickly. Cruz indicated he’s interested in pursuing another commercial space bill, which would build upon the Commercial Space Launch Competitiveness Act passed in late 2015.

Such a bill could be introduced later this year, but Cruz said there’s more ahead for his committee. “This hearing is the first in a series of hearings to lay the groundwork for a new Commercial Space Launch Competitiveness Act that facilitates and expands commercial space launch capabilities and ensures that we have the regulatory system, incentives and property rights to continue growing private investment,” he said after the hearing adjourned.

Any bill the committee pursued would be done on a bipartisan basis, he added, which reflects the facts of life of the Senate: to get a bill like that through the Senate, it needs unanimous consent to expedite its passage, something the 2015 bill was able to achieve, as well as a NASA authorization act passed earlier this year.

“We’re going to spend some time listening and learning first,” Cruz said. And, likely, keeping tabs on what policy emerges from the other end of Pennsylvania Avenue in the coming months.