Debate over the FAA Office of Commercial Space Transportation’s (AST) dual role of both promotion and oversight dominated House Transportation aviation subcommittee’s first hearing in seven years on commercial space.
AST is one of the only federal agencies tasked with both promoting and regulating an industry. Michael Listner, principal with Space Law and Policy Solutions in New Hampshire, said the Securities and Exchange Commission (SEC), part of the Treasury Department, also has promotion and regulatory/oversight authority.
Opponents of this dual role, like Rep. Peter DeFazio (D-Ore.), want another agency to have oversight of the commercial space industry due to safety concerns. Proponents, on the other hand, are afraid of heavy-handed regulation resulting from a spin-off hurting the growth of the burgeoning commercial space industry. Proponents of the status quo also cite the unique nature of AST’s promotion/oversight relationship being the right prescription for industry growth. 
Mike Gold, vice president of Washington operations and business development for Space Systems Loral (SSL), passionately argued Wednesday for keeping the status quo. Gold said that AST’s promotional/oversight role leads to greater safety due to openness and cooperation between industry and AST, as opposed to an antagonistic relationship that often develops between industry and regulators.
“I see promotion and safety as complementary and critical to accomplishing the safety mission,” Gold told Defense Daily after the hearing. “There is an engagement and support of industry that doesn’t exist in a lot of other places.”
DeFazio said Wednesday during the hearing that there was once a mandate for the FAA to both promote and regulate the aviation industry. Also like the debate over AST’s dual role, DeFazio said people argued this wasn’t a problem.
DeFazio said the ValuJet crash of 1996 exposed the conflict in an agency’s dual role. He added that the moratorium on the FAA regulating commercial space industry safety ends in 2023. DeFazio spokeswoman Jen Gilbreath didn’t respond to additional requests for comment Wednesday.
“There is an inherent conflict between promotion and regulation and oversight of safety,” DeFazio said. “It would be more appropriate to say (the) Commerce (Department) would promote and FAA would regulate.”
Listner said AST, or any other government agency, promotes an industry by facilitating a legal, regulatory and administrative environment for a particular industry. In the case of AST, he said, the commercial space launch industry is promoted through AST’s licensing process for commercial space operators as well as licensing of spaceports and other facilities.
Gold believes Congress needs to fix the Article 6 problem, which he said has existed for 16 years. Article 6 of the 1967 Outer Space Treaty requires nations to authorize and supervise spaceflight by non-governmental entities, which Gold said wasn’t a problem for the first 30 or 40 years as all space activity was either by NASA or the Pentagon or substantially-supervised by the FCC. Gold said with the development of new technologies, the development of a new paradigm in space law is necessary so that the most innovative space activities are not covered by continuing government supervision.
Gold is concerned that without action to fix the Article 6 problem, industry could face the same challenges as it did over the last 20 years with export controls laws. These laws were designed to keep sensitive technology out of the hands of adversaries, but they also hurt U.S. industry and sent space business overseas.
Gold proposes a “benign registration-based regime” where much like a launch license or payload-review approval, an entity would describe its activity to AST and the subsequent interagency meeting would be held. The interagency meeting is usually with the State, Commerce and Defense departments, FCC, NASA and others. They review whether an entity’s activity would impact national security or existing treaty obligations.
Under Gold’s proposed regime, as long as an entity is in conformity with basic federal government requirements and not harming other outer space activities or national security, approval would be granted and a proviso within that launch license would be if there is a “substantial or material” change to the entity’s activity. A proviso is a caveat or extra requirement that comes with a license. The entity would then inform AST.
Gold said that it is important for lawmakers to act now as both the Defense Advanced Research Projects Agency (DARPA) and NASA are already initiating innovative capabilities like satellite servicing with the intent of transferring them to the private sector.
“It is vital that we pursue, and lock in, that interpretation now so that down the road, we don’t get something that would not only hurt commercial activities, but national security,” Gold said. “We can’t (afford) to create…regulatory roadblocks that lead to confusion and delays and force companies overseas.”
Both Gold and Listner said the big problem with AST is not its dual role, but its struggle for appropriate funding. Gold said AST struggles to receive its budget request every fiscal year and if the industry continues to grow, AST will need even more money. The FAA requested nearly $20 million for AST in fiscal year 2017. The spending bill that passed the House Appropriations Committee provided $18.8 million for AST while the Senate approved $19.8 million.
Subcommittee Chairman Frank LoBiondo (R-N.J.), during the hearing, seemed to lean toward keeping AST’s dual role. In his opening statement, LoBiondo called the commercial space industry highly innovative and advancing U.S. leadership in the field. He said these advances require the close cooperation and oversight of AST.
Government Accountability Office Director of Civil Aviation Issues Gerald Dillingham testified Wednesday that there is either inherent or potential conflict with the dual role. He also said GAO recommended that the FAA work with the Commerce Department to develop a memo of understanding (MOU) that would delineate which agencies would be responsible for what part of promotion, in line with their statutory “situation” and mission.
House Armed Services Committee (HASC) and Science, Space and Technology Committee (SST) member Jim Bridenstine (R-Okla.) supports AST’s dual role. In a Wednesday email, Bridenstine spokesman Christopher Ingraham said federal regulators are too often openly hostile toward the industries they oversee, leading to harmful regulations that stifle economic growth. Splitting AST’s dual role, he said, could prevent the technological advancements the U.S. has seen from this still-nascent industry.
Listner believes AST should remain the regulatory authority for commercial space activities. He said that doesn’t mean that the role may have to be spun-off to another agency at some point, but for the time being, there is no reason to justify handing over FAA’s role to another agency or creating a “space guard” to oversee the commercial space industry.
Commercial space advocate and industry consultant Rand Simberg said on Twitter Wednesday he also supports AST’s dual role.