Regulating Non-Traditional Space Activities in the United States in the Wake of the Commercial Space Launch Competitiveness Act

Abstract

With the rapid growth of space technology and the development of new ‘non-traditional’ space ventures there is concern that the United States will suffer from a ‘regulatory gap’ when these new space activities outstrip the existing regulatory framework. Such a gap might support a finding that the United States is not in compliance with Article VI of the Outer Space Treaty which requires a state to ‘authorize and continually supervise’ the space activity of its nationals. Congress responded to this concern by enacting the Commercial Space Launch Competitiveness Act in 2015 (CSLCA) which took the first steps to fill the ‘gap’. New bills are now under consideration which will take the next step in this legislative process to fill the ‘gap’ by giving the Federal Aviation Administration (FAA) authority to license non-traditional space missions. In the so-called section 108 Report, the White House recommended an approach based on the FAA’s existing process of payload review. Sen. Jim Bridenstine proposed a similar approach in his American Space Renaissance Act (ASRA). Until the legislative process is complete, however, the FAA is leveraging its existing authority in order to regulate non-traditional activity, as has been seen in the agency’s actions involving Bigelow Aerospace and, more recently, Moon Express.