Mission Authorization: Decoding the Space Policy Dilemma

On November 15, 2023, the White House’s National Space Council released a legislative proposal that would create a licensing process for private sector novel space activities, called mission authorization, consistent with U.S. obligations under the Outer Space Treaty (OST) of 1967. Meanwhile, Congress and a government-chartered space advisory group have offered their own proposals. While all parties acknowledge the need for mission authorization, they disagree on how it should be done. Due to these differences, the odds that a new statutory framework will be enacted soon seem slim. However, whether prolonging what has already been an almost decade of policymaking deliberations impacts U.S. companies pursuing novel space activities is far from clear.

Q1: What is mission authorization?

A1: The OST requires that signatories authorize and continuously supervise their country’s private sector space activities and specifies that nations bear international responsibility for damages to other member states resulting from national space activities. The treaty requires states to ensure private space actors comply with treaty provisions, including prohibitions on claiming territory and contaminating space. While the treaty language does not prescribe specific regulations, it motivates nations to develop frameworks that discourage or prohibit risky private space endeavors.

In 2015, Congress directed the Office of Science and Technology Policy (OSTP) to produce a report that assessed current and future commercial space activities and recommended an authorization and supervision framework that would meet the U.S. OST obligations, as well as prioritize space safety, promote the U.S. space industry, minimize regulatory burdens, and use existing authorities. The resulting report noted that the United States already maintains licensing processes for launch services, spectrum use, and remote sensing. But the report also identified space activities using new and emerging technologies, such as commercial habitats, in-space manufacturing, and on-orbit refueling, which were not clearly addressed by existing licensing schemes. The OSTP recommended establishing a new authorization and supervision framework for these space activities—subsequently called novel space activities—and referred to this framework as mission authorization.

Q2: What does the White House mission authorization proposal do?

A2: The White House proposal would authorize two departments, the Department of Transportation (DOT) and Department of Commerce (DOC), to create a new regulatory framework and licensing process for novel private sector space activities. The administration intends for the DOT and DOC to integrate the new licensing processes into their existing regulatory mechanisms and divide responsibilities between the two departments to take advantage of their regulatory expertise and competencies.

The DOT would have authority over all human spaceflight activities, beyond its current role in launch and reentry, to include missions to the moon, other planets, and activities in Earth orbit. Additionally, the DOT would license the transportation of materials in space and to the surface of the moon. The DOC, which already regulates remote sensing space systems, would be granted authority to regulate other uncrewed space activities, such as in-space servicing, assembly, and manufacturing and active debris removal.

Before granting a license, each department would be required to coordinate with several other federal agencies, such as the National Aeronautics and Space Administration, Department of Defense, and the Federal Communications Commission (FCC). Additionally, the proposal specifies a number of criteria, unrelated to OST obligations, by which license applications would be assessed, including on space sustainability considerations and whether the application is consistent with the national security, foreign policy, and other national interests of the United States.

The administration released its proposal in the form of a draft bill, which would need to be passed by both chambers of Congress and signed into law by the president. Additionally, on December 20, 2023, the White House released a complementary policy framework document that, among other things, outlines roles and responsibilities for federal government stakeholders and calls for interagency coordination and regulatory updates using existing authorities to address mission authorization. The release of the legislative proposal and policy framework concludes a process initiated last year by Vice President Kamala Harris, chair of the National Space Council, to develop a framework that incorporates ideas from federal agencies, industry, and the general public, on how the United States should oversee emerging private sector space technologies and activities.

Q3: How do congressional initiatives on mission authorization differ from the White House proposal?

A3: On November 2, 2023, Representatives Frank Lucas (R-OK), House Science Committee chairman, and Brian Babin (R-TX), Science Subcommittee on Space and Aeronautics chairman, introduced the Commercial Space Act of 2023, which would establish a certification process for private spacecraft and space objects not currently licensed by U.S. agencies. Rather than splitting authorities between two departments, this legislation would consolidate authority within the DOC. The House bill does not create a traditional licensing regime, but rather is a passive process that presumes approval unless the DOC denies an application within a 60-day timeframe. Also, the House bill provides a narrow set of criteria, focused on ensuring compliance with OST obligations, for denying an application.

Separately, the National Space Council’s Users’ Advisory Group (UAG), a federal advisory committee established to ensure that the views of private sector and nongovernmental space stakeholders are provided to the National Space Council, released its own recommendations for mission authorization on December 1, 2023. The UAG recommendations share important elements with the House bill, namely consolidating authority within the DOC, requiring narrow timelines for approval or disapproval of most applications, and specifying limited reasons for application denial. While the UAG recognized that the White House proposal had already been publicly released and shared with Congress, the committee provided its recommendations as a record of consolidated private sector feedback to the White House.

The Senate Commerce Committee, meanwhile, continues work on developing its own commercial space bill. While the final Senate bill has not been released, like the White House, House Science Committee, and UAG plans, the Senate proposal will affirm the need for a mission authorization framework. Like the House proposal, but unlike the White House plan, the Senate bill is expected to consolidate mission authorization responsibilities and create a process to authorize private in-space activities within the DOC.

Q4: How do mission authorization initiatives impact U.S. private sector space activities?

A4: One or more U.S. government organizations already regulate elements of every private U.S. space activity. The DOT licenses launch and reentry, requiring information about the space payload as part of the licensing process. The FCC licenses spectrum use and, as part of that process, imposes requirements related to space sustainability on licensees. Neither the White House nor congressional mission authorization initiatives intend to impact these existing licensing processes. However, some in the industry have argued that the White House proposal could create duplicative and conflicting requirements for novel space activities and require space operators to seek multiple licenses for one activity.

In addition to fulfilling U.S. treaty obligations, others have long argued that providing regulatory clarity and certainty through a comprehensive mission authorization framework will encourage increased investment and innovation in space. No matter which mission authorization approach the United States enacts, it will likely take time to assess whether the framework stimulates economic growth in space.

Ultimately, getting the right mission authorization framework in place is only one step, but not the last, that the government can take to support U.S. companies developing new products and services based on novel space activities. For example, launch infrastructure at many U.S. spaceports is aging. According to some experts, without significant investment, Cape Canaveral will struggle to support the expected increase in launch cadence over the next several years. Additionally, companies selling radio frequency sensing capabilities and services from space, unlike their remote sensing cousins, face regulatory uncertainty and lengthy timelines for obtaining U.S. approval to sell their products, especially to allies and partners abroad. Finally, a U.S. company performing in-space pharmaceutical manufacturing has been waiting since August for authorities to decide when and where its space laboratory can re-enter the atmosphere and land. As a result, it has turned to Australia to help support future missions.

Conclusion

The prospects for getting any mission authorization proposal passed by both chambers of Congress and signed into law are slim due to substantive differences between the administration and congressional proposals. As the Senate has not yet released its bill, there is a potential opportunity for it to weave elements of both the administration and House proposals into a compromise bill that would be acceptable to all stakeholders. Given that all parties agree on the need for mission authorization, there may be some motivation to compromise. Should these proposals stall, there is a wildcard scenario. The FCC could pursue new rulemakings, which modify space spectrum licensing processes to fulfill the purpose of mission authorization initiatives. In any case, it is unclear whether the continued lack of a mission authorization framework would impact U.S. companies pursuing novel space activities—and there are other challenges facing commercial space where the U.S. government can help.