Congress and commerce in the final frontier (part 2)
A brief legislative history of US commercial space law
by Cody Knipfer
|While the X Prize and SpaceShipOne prompted predictions of a new era in commercial spaceflight, they also highlighted significant gaps in standing commercial space law and regulation.|
On July 29, the bill moved through the House Science Committee, and in October it passed the House by voice vote after remarks in support by Chairman James Sensenbrenner (R-WI), Rep. Bart Gordon (D-TN), and Rep. Nick Lampson (D-TX).2 The bill remained in the Senate until October of 2000, when an amendment in the nature of a substitute, making minor modifications, was presented by Sen. Trent Lott (R-MS) for Senator John McCain (R-AZ)—who had worked with Sens. Fritz Hollings (D-SC), Bill Frist (R-TN), and John Breaux (D-LA) on the language3 —and agreed to by unanimous consent. On November 1, 2000, the President signed the bill into law.4
While the extension of indemnification was perhaps the act’s most significant provision, it also authorized, for three years, appropriations for two offices with mandates to promote and regulate the commercial space sector: the Office of Commercial Space Transportation in the Department of Transportation, and the Office of Space Commercialization in the Department of Commerce. The legislation also required a report on the indemnification regime, expressing the views of NASA, the Department of Defense, the Office of Commercial Space Transportation (AST), and the Office of Space Commercialization on the adequacy, effectiveness, and continuing need for liability risk sharing for commercial space launch, and whether the policy would need to be changed, perhaps towards the approach of the airline liability regime.
A major milestone for commercial spaceflight occurred in June 2004 when the privately-funded, human-piloted SpaceShipOne spacecraft flew into space on a suborbital trajectory, the first private launch with humans onboard. In October 2004, the vehicle won the $10 million Ansari X Prize after two more suborbital spaceflights.5 A unique “hybrid” vehicle, SpaceShipOne was lofted into the air by an aircraft, at which point it detached, ignited its rocket, and flew to space.6
While the X Prize and SpaceShipOne prompted predictions of a new era in commercial spaceflight, they also highlighted significant gaps in standing commercial space law and regulation. How would “hybrid” space vehicles be licensed? How would suborbital spaceflight be addressed? How would commercial human spaceflight be regulated, and what sort of safety regime would be established?
Efforts to address these questions began in June 2003, when Sens. McCain and Sam Brownback (R-KS) introduced the “Commercial Space Transportation Act of 2003.” The bill aimed to extend the commercial space launch indemnification regime and mandated a report by the Secretary of Transportation on the need for a regulatory regime for suborbital vehicles.7 While the bill failed to gain traction in the Senate, it prompted a joint House-Senate hearing on commercial human spaceflight.8 There was general consensus among witnesses that, during early stages of the commercial human spaceflight industry, customers would have to waive all claims of liability against the companies taking them into space. The witnesses also requested that Congress indemnify companies against the consequences of human launch accidents in the same manner that the federal government indemnifies launches by the traditional commercial space transportation industry.9
In response to the points articulated at the hearing, Rep. Rohrabacher introduced the “Commercial Space Act of 2003” in October. In November, the House Subcommittee on Space and Aeronautics held a second hearing, focused particularly on the newly introduced bill.10 The hearing examined whether commercial human spaceflight should be regulated by FAA/AST, as opposed to FAA offices that handle aircraft. Witnesses expressed differences in opinion across the board.11
The Commercial Space Act was soon subsumed by a more complex bill also introduced by Rep. Rohrabacher, the Commercial Space Launch Amendments Act, which was cosponsored by the chairman of the full committee, Rep. Sherwood Boehlert (R-NY) and its ranking member, Rep. Gordon. The bill was reported favorably from the committee in February 2004. On March 4, the House passed the bill, 402–1, though not without the threat of amendment from Rep. Frank Lucas (R-OK) and Rep. Jeff Flake (R-AZ). Flake contested the amount of money authorized for AST under the bill, while Lucas requested the House consider changing definitions appearing in the bill when negotiations ensued in the Senate.12,13 , Both amendments were withdrawn on the House floor.14
The bill stalled in the Senate, despite Sen. James Inhofe (R-OK) introducing in August a companion bill, the “Space Chase Act,” which mirrored its language. While the Senate Commerce Committee took no action on the bill, bipartisan negotiations began between the staff of the House and Senate committees. The edits were extensive enough that, on November 18, Rep. Rohrabacher reintroduced the bill in the House to incorporate them.15
A vote on Rep. Rohrabacher’s newly introduced bill was scheduled in the House on November 20 when last-minute issues emerged. While the House Transportation & Infrastructure Committee, which had jurisdictional control over issues pertaining to the FAA, had declined a legislative referral on the bill16 —indicating that it had no substantive objection—senior Democratic members of the committee felt otherwise. A debate occurred when the bill came to the House floor, with Reps. Jim Oberstar (D-MN), ranking member of the committee, and Peter DeFazio (D-OR) analogizing human spaceflight to traditional aviation and arguing for a licensing regime that placed a greater emphasis on passenger safety.17
Despite these objections, the bill was passed with a final vote of 269–120. However, in the Senate, where a vote by unanimous consent was scheduled, an “anonymous hold” was placed on the bill over definitional issues regarding suborbital vehicles that took off under jet power but went to space under rocket power.18 With the hold on the legislation, the bill seemed destined to die at the expiration of the Congress; the media following the bill’s progress anticipated it would fail.19 However, with last-minute support from the newly-elected Senate Minority Leader Harry Reid (D-NV), the Senate took the bill up on December 8 and passed it as one of the final bills to pass the waning 108th Congress. On December 23, the bill was signed into law.20
As Rep. Rohrabacher’s final bill—which ultimately passed both chambers—was pre-negotiated, no conference committee was convened nor was a conference report drafted. Considered without debate in the Senate, the legislative history on Senate deliberations is nearly non-existent.21 Nonetheless, the language featured in the passed legislation reflects compromise found between the House Science Committee and the Senate Commerce Committee. As described by Boehlert, the language of the bill “is the equivalent of a conference report, as it reflects bipartisan negotiations” between the two chambers.22
|With the hold on the legislation, the bill seemed destined to die at the expiration of the Congress; the media following the bill’s progress anticipated it would fail.|
While being called by some an “industry wish-list,”23 the Commercial Space Launch Amendments Act achieved several significant aims for the regulation of commercial spaceflight.24 Among them, the legislation located all regulatory authority for commercial human spaceflight in the FAA’s Office of Commercial Space Transportation and established an “experimental permit” category that would allow industry to test new types of reusable suborbital rockets. It again extended the commercial launch indemnification regime. Perhaps most importantly, it established a regulatory regime for commercial human spaceflight: requiring AST to issue regulations for crew training, limiting safety requirements for non-crew passengers—aka “spaceflight participants”—to consist only of them being informed of, and providing written consent to, the risks of their participation (“informed consent”). A “learning period” for commercial spaceflight was created, in which the Secretary of Transportation would not issue safety regulations beyond the informed consent regime established in the bill. In short, despite the objections raised by the House T&I Committee’s Democrats, the bill established what a majority in the Congress ultimately decided was the most balanced regulatory regime to foster the development of the nascent commercial human spaceflight industry.25
In the decade following the Commercial Space Launch Amendments Act of 2004, the launch indemnification regime and industry regulatory “learning period” were, through various pieces of legislation not specific to commercial space, extended. However, by 2015, the indemnification regime was to sunset in 2016,26 while the learning period was to end on September 30, 2015.27 The launch and human spaceflight industries, which had not grown and developed as anticipated following the flight of SpaceShipOne, desired another extension.28 Meanwhile, several companies were exploring business plans for mining asteroids for valuable resources, another novel area of space activity for which there was no statutorily-approved authorization regime.29
On May 12, Rep. Kevin McCarthy (R-CA), House Majority Leader, introduced the “Spurring Private Aerospace Competitiveness and Entrepreneurship (SPACE) Act.” Among other provisions, the bill sought to update several of the standing provisions in commercial space statute, extending both the “learning period” prohibition on commercial spaceflight regulation and the launch indemnification regime through 2023. It also provided for an updated calculation on maximum probable loss for the insurance requirement, extending indemnification to cover spaceflight participants, and extending cross-waivers of liability to include spaceflight participants.30
The same day, Sen. Ted Cruz (R-TX), chairman of the Space Subcommittee, introduced a companion bill to the SPACE Act, called the “Commercial Space Launch Competitiveness Act.” It contained many of the provisions of the House bill, though it did not include indemnification or cross-waivers for spaceflight participants and only extended the learning period and launch indemnification through 2020.31 Unlike in the House, the bill enjoyed bipartisan support, with co-sponsorship by Sens. Bill Nelson (D-FL), ranking member of the full Senate Commerce Committee, and Gary Peters (D-MI), ranking member of the Space Subcommittee. On May 20, the full committee favorably reported the bill on a unanimous voice vote.
On May 13, the House Science Committee marked up the SPACE Act. Democratic members of the committee opposed the act, particularly its provisions on spaceflight participants and its extension of indemnification. Reps. Eddie Bernice Johnson (D-TX); ranking member of the committee, Donna Edwards (D-MD), ranking member of the space subcommittee; and Alan Grayson (D-FL) all spoke against the bill, with Grayson in particular saying that “any limitation of liability, any indemnification, is wrong… we invite an accident, we invite a tragedy, if we limit liability.”32
Democratic members of the committee offered a series of amendments to shorten the learning period and launch indemnification to five years, to elimination a provision that would allow suborbital companies to hold launch licenses and experimental permits simultaneously for the same vehicle, and to remove a specification that federal courts hold sole jurisdiction for legal action arising from a licensed launch. However, all amendments were struck down on party lines.33 Meanwhile, the committee approved, again on party lines, an amendment by Rep. Steve Knight (R-CA) to extend indemnification and the learning period to 2025.34
During markup, the committee also incorporated three other pieces of commercial space-relevant legislation into the SPACE Act’s text. Two of them proved non-controversial. One, sponsored by Rep. Jim Bridenstine (R-OK), required the Department of Commerce to report on delays in issuing licenses for remote sensing spacecraft and examining any needed updates to remote sensing statute. The other, sponsored by Rohrabacher, renamed the Office of Space Commercialization to the Office of Space Commerce and updating the scope of its responsibilities.
|Though a comparatively minor portion of the bill, the provisions establishing a statutory basis for private space mining received significant academic and press coverage.|
The third bill was the Space Resource Exploration and Utilization Act of 2015, introduced earlier in the year by Reps. Bill Posey (R-FL) and Derek Kilmer (D-WA), which permitted American companies property rights to resources they mine or otherwise obtain in space.35 The committee’s Democrats raised concerns about whether the bill would comply with international treaties, particularly the Outer Space Treaty, which prohibit appropriation of extraterrestrial territory by means of use or occupation. Johnson introduced an amendment that would replace the bill with an interagency study on the legal issues on space resource property rights. Again, her amendment failed.36 The SPACE Act was then reported favorably out of committee on party lines, 18–13.37,38 ,
On May 21, the full House took up the bill. In debate, Rep. Edwards noted that the bill “simply doesn’t adequately protect the public’s interest” regarding safety of spaceflight participants. Both the bill’s supporters and opponents pointed to a Statement of Administration Policy that, while not opposing the bill, called attention to concerns it had about the learning period extension.39 During the bill’s time on the floor, several amendments making minor changes and additions were considered and accepted. Edwards introduced an amendment that would replace the bill’s text with the Senate’s version, passed a day earlier.40 However, the amendment was voted down on near-party lines,41 with Republicans noting that the House bill, a compilation of several bills, now contained many more provisions.42 The House then moved to vote on the bill, which it passed 281–133. Nearly every Republican and 48 Democrats voted in favor of it.43
The House and Senate conducted a conference through the summer and into the fall, concluding work on October 28.44 However, on October 29, a hold was placed on the bill, reportedly over the cross-waiver provisions for spaceflight participants that House Democrats opposed during the May markup.45 However, the hold was lifted, presumably after a change in the conferenced Senate text that would eliminate the cross-waiver provision for spaceflight participants in 2025; the House’s version would have applied the provision indefinitely. Among other changes, the conferenced text also contained a significant revision to the space resources property rights language included in the House bill, extending the right from applying only to material obtained from asteroids, to materials obtained from any “celestial body.” However, the revised language deleted a provision allowing for civil relief from “harmful interference” by other United States entities during resource utilization activities.46
On November 10, the bill was discharged by unanimous consent from the Senate Committee on Commerce, was considered as an amendment in the nature of a substitute on the Senate floor, and passed by unanimous consent. On November 16, the House passed the Senate’s amended bill by voice vote. On November 25, as the 114th Congress was winding down, the President signed the bill into law.47
Like the Commercial Space Act of 1998 and the Commercial Space Launch Amendments Act of 2004, the Commercial Space Launch Competitiveness Act made several significant updates to existing commercial space statute while establishing new areas of law.48 Though a comparatively minor portion of the bill, the provisions establishing a statutory basis for private space mining received significant academic and press coverage.49 The bill extended indemnification for ten years, through 2025, a far longer extension than had been in other bills; it also extended the “learning period” through 2023. By creating a new legal category for government-employed individuals who fly on spacecraft—“government astronauts”—the bill enabled NASA’s and international partners’ astronauts to ride on commercial vehicles without signing the otherwise required liability waivers, removing a potential legal roadblock as the government can’t waive its liability.50 Finally, the bill laid a framework for further legislative action on commercial space activity by requiring reports on the remote sensing licensing regime and needed reforms, and on streamlining the launch licensing regime.
As noted at the beginning of part 1, this essay was intended to briefly review and describe the evolution of the US commercial space statute, detailing the contents of its constituent legislation and the general process by which that legislation was developed and passed. Given the present availability of primary and secondary sources, and of Congressional documents, the picture becomes clearer for the legislative efforts of recent years than for the efforts of the 1980s and early 1990s. Constrained both by scope and by the accessibility of information, this essay could not capture in full all of the debate, compromise, staff participation, and member involvement that surely molded and influenced the law we have today. Nonetheless, several general observations and conclusions can be drawn from the story presented.
|In a sense, the body of commercial space law that exists today is more a reflection of the efforts and policy positions of handfuls of members than it is of the whole of Congress.|
First is on the importance of stakeholders in the legislative process and debate. Space policy professionals, especially those working for the commercial sector, are closely familiar with particular members of Congress and their staff, and for good reason. As seen in this legislative history, certain individuals were more closely and consistently involved in the crafting of commercial space legislation than their colleagues. Members such as Reps. Rohrabacher, Sensenbrenner, Johnson, Gordon, and Rep. (and later, Sen.) Nelson, among others, are seen playing significant—often leading—roles in several of the efforts of this decades-long history.
Motivations for this involvement varied: sometimes from parochial concerns (such as was suggested for Rep. Daniel Akaka (D-HI), or for the “space state” members from Texas and Florida), to genuine passion and personal interest (such as Rep. Newt Gingrich (R-GA) and, increasingly, Rep. Rohrabacher). Congressional organizations and caucuses, such as the Space Caucus of the 1980s, can play significant, and sometimes critical, roles in identifying and building interest, motivation, and support for specific legislative efforts. In short, members matter: a widely recognized, though perhaps often underappreciated fact. Legislation is not developed impartially, solely on “pure” issues of public policy; rather, it is the interests, perspectives, experiences, and legacies of the members and staff involved that are often pivotal in shaping a bill’s final form. For narrow fields such as commercial space, statute has been influenced more by the members who “showed up” by joining (or being assigned to) relevant committees and subcommittees of jurisdiction, than it has by those who didn’t. In a sense, the body of commercial space law that exists today is more a reflection of the efforts and policy positions of handfuls of members than it is of the whole of Congress.
Yet it is not just members who matter. The history of commercial space legislation demonstrates that external stakeholders play significant roles in the identification of issues to address and the shaping of debate. This is especially true for commercial space law: statute designed particularly to govern certain actors and stakeholders, not the public at-large. Through meetings with staff and members and testimony delivered at tailored hearings, the commercial space industry has, throughout the decades, identified emergent capabilities and corresponding areas of regulatory concern. The legislation developed has closely reflected those positions to the point that some have decried the bills as “industry wish-lists.”
However, industry is not alone in playing an important external role in the legislative process. As seen, Congress has consulted with, and considered the positions and perspectives of, the relevant regulating agencies, the administration, academia, think tanks, interest groups, and others with a stake in or position on commercial space. Language in these bills has frequently been added, modified, or struck to capture and accommodate their concerns. As noted multiple times for several of these acts, the final product is not a perfect bill. Rather, it is compilation of compromises: a common ground forged between the perspectives of members of both chambers, a delicate balance struck between various groups and interests with often different and sometimes entirely disparate desires and concerns. This is not unique to commercial space legislation; rather, it is the defining characteristic of the legislative process, and indeed of governance in general.
For those who follow, study, or participate in the legislative process, the evolution of commercial space statute is an exemplary case study in the myriad procedures, steps, and maneuverings that legislation can undergo. The legislative process is rarely as simple and straightforward as suggested in basic civic classes. As the various pieces of commercial space legislation demonstrate, the passage of a bill can require significantly advanced legislative procedure. There are “holds” that can be placed in the Senate to force adjustment to contentious language, as seen in the Commercial Space Launch Amendments Act of 2004 and the Commercial Space Launch Competitiveness Act of 2015. Bills can be finalized through final-vote floor amendments adjusting the other chamber’s final-vote floor amendments, seen in the Commercial Space Act of 1998. Bills can be introduced and reintroduced, sometimes in the last moments, to incorporate the other chamber’s language and expedite passage, as in the Land Remote Sensing Act of 1992. Legislation may substantively replicate and build upon bills that failed in previous Congresses, like the Commercial Space Act of 1998, or consist of several separate bills compiled together in a markup, such as the Commercial Space Launch Competitiveness Act of 2015. Legislation may feature companion bills introduced in the other chamber to force the legislative process, or it may not. Simply put, there is no definitive, singular way that an idea becomes a bill, or a bill becomes a law.
That said, the evolution of commercial space statute has shown a remarkable consistency in the adherence to a “regular order” in general Congressional process. Except, perhaps, for the Commercial Space Launch Competitiveness Act,51 each bill developed in a similar way: subcommittees and committees hold hearings, often several, on particular topics of legislative interest; a bill is introduced reflecting the testimony and perspectives offered in the hearing; subcommittee and committees mark up the bills, sometimes including opportunity for amendment; floor consideration, sometimes offering opportunity for amendment; and votes on final passage. At a time when many decry what is perceived as a gradual breakdown in the legislative process, the various commercial space bills reflect the Congressional process largely “working right,” offering stakeholders the opportunity to offer ideas and expert opinions and giving members the opportunity to ask questions, offer perspectives, and contribute substantively to language.
|Commercial space legislation has largely focused on straightforward and generally bipartisan issue areas seeking to promote and foster the growth of the commercial space sector.|
The evolution of commercial space law is also demonstrative of how legislation often builds upon past statute. It features an “organic law” such as the Commercial Space Launch Act of 1984 or the Land Remote Sensing Policy Act of 1992 that sets a statutory foundation for a topic. Subsequent legislation establishes new policy by building upon that organic law through explicit amendment, such as the Commercial Space Launch Act being amended over the years to feature an indemnification regime and “learning period” regime, incorporate suborbital and reusable rockets in licensing, enable the issuance of “experimental permits,” and cover human spaceflight. Congress need not—and, as seen, often does not—establish whole new sections of legal code in order to address new or developing topics in an issue area.
This legislative history offers an opportunity for more specific observations on commercial space policy. First, and particularly encouraging during this era of increasing political polarization, commercial space has been a topic of generally broad bipartisan support and cooperation. Most bills, particularly in the 1980s and 1990s, were passed by unanimous consent or non-controversial voice votes and featured non-contentious mark-up processes, in which amendments were widely accepted or not offered at all. While there was, of course, minor disagreements over language in the earlier bills, it was not until the Commercial Space Launch Amendments Act of 2004 and the Commercial Space Launch Competitiveness Act of 2015 that significant partisanship or split votes had been demonstrated in markup or on the chamber floor. Even then, this disagreement has largely focused around the indemnification and passenger safety regimes; significant policies, to be sure, but not the entire scope of commercial space statute.
It is notable that the indemnification regime has been a consistent focal point for legislative efforts on commercial space since the 1980s. Originally designed to sunset only several years after the 1988 bill’s passage, it has now been extended for nearly three decades and is set to last for at least another several years from today, if not indefinitely. The “learning period” on safety regulations increasingly looks to be in similar circumstances. As both policy topics have seemingly been settled for some years to come, the partisan disagreement demonstrated during the latest commercial space legislation may not similarly materialize in upcoming ones, though a Democratic majority in future Congresses could, conceivably, revisit and amend the regimes.
Otherwise, commercial space legislation has largely focused on straightforward and generally bipartisan issue areas seeking to promote and foster the growth of the commercial space sector. As new capabilities not envisioned in earlier bills appeared or were proposed—reusable rockets, commercial Earth observation satellites, suborbital spacecraft, private human spaceflight, asteroid mining—Congress has addressed the resultant regulatory gap. Aligned with administration policy, Congress has pursued policies which mandate that the government maximize utilization of, and minimize competition with, commercial space service and launch providers. When regulatory or licensing regimes have been demonstrably “broken” or been clear impediments to industry development, Congress has attempted to fix or revise them. Through consistent reporting requirements and study mandates, Congress has sought to identify relevant issues and opportunities addressable by future legislation.
In all, the legislative history of commercial space statute is a fascinating case study into Congressional processes and procedures, as well as the specific policy areas of focus and concern for the commercial space industry and the Congress. If the past 30 years of commercial space legislation suggest anything, it’s that, so long as commerce is pursued in the final frontier, it will surely be accompanied by a relevant legislative proposal (and debate) in the halls of Congress.
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