[House Report 115-649]
[From the U.S. Government Publishing Office]
115th Congress } { Report
HOUSE OF REPRESENTATIVES
2d Session } { 115-649
======================================================================
AMERICAN SPACE COMMERCE FREE ENTERPRISE ACT OF 2017
_______
April 24, 2018.--Committed to the Committee of the Whole House on the
State of the Union and ordered to be printed
_______
Mr. Smith of Texas, from the Committee on Science, Space, and
Technology, submitted the following
R E P O R T
[To accompany H.R. 2809]
[Including cost estimate of the Congressional Budget Office]
The Committee on Science, Space, and Technology, to whom
was referred the bill (H.R. 2809) to amend title 51, United
States Code, to provide for the authorization and supervision
of nongovernmental space activities, and for other purposes,
having considered the same, report favorably thereon with an
amendment and recommend that the bill as amended do pass.
CONTENTS
Committee Statement and Views.................................... 19
Section-by-Section............................................... 39
Explanation of Amendments........................................ 43
Committee Consideration.......................................... 43
Application of Law to the Legislative Branch..................... 43
Statement of Oversight Findings and Recommendations of the
Committee...................................................... 43
Statement of General Performance Goals and Objectives............ 44
Duplication of Federal Programs.................................. 44
Disclosure of Directed Rule Makings.............................. 44
Federal Advisory Committee Act................................... 44
Unfunded Mandate Statement....................................... 44
Earmark Identification........................................... 44
Committee Estimate............................................... 45
Budget Authority and Congressional Budget Office Cost Estimate... 45
Changes in Existing Law Made by the Bill as Reported............. 46
The amendment is as follows:
Strike all after the enacting clause and insert the part
printed in italic:
SECTION 1. SHORT TITLE; TABLE OF CONTENTS.
(a) Short Title.--This Act may be cited as the ``American Space
Commerce Free Enterprise Act of 2017''.
(b) Table of Contents.--The table of contents is as follows:
Sec. 1. Short title; table of contents.
Sec. 2. Findings; policy; purposes.
Sec. 3. Certification to operate space objects.
Sec. 4. Permitting of space-based remote sensing systems.
Sec. 5. Administrative provisions related to certification and
permitting.
Sec. 6. Technical and conforming amendments.
Sec. 7. Office of Space Commerce.
Sec. 8. Restriction on preventing launches and reentries of certified
space objects.
Sec. 9. Report on registration of space objects.
Sec. 10. Comptroller General report.
SEC. 2. FINDINGS; POLICY; PURPOSES.
(a) Findings.--Congress finds the following:
(1) The United States, through existing authorization and
supervision mechanisms, satisfies and is in conformity with its
obligation under the Outer Space Treaty to authorize and
supervise nongovernmental space activities to assure such
activities are carried out in conformity with the international
obligations of the United States under the Outer Space Treaty.
(2) The United States has a robust and innovative private
sector that is investing in, developing, and placing into outer
space, spacecraft and payloads.
(3) Authorization and supervision mechanisms as of the date
of enactment of this Act could be improved to relieve
administrative burdens on new and innovative nongovernmental
space actors.
(4) It serves the national interest to address misperceptions
of legal uncertainty through the establishment of a general
authorization and supervision certification authority for
nongovernmental outer space activities.
(5) The private exploration and use of outer space by
nongovernmental entities will further the national security,
foreign policy, and economic interests of the United States.
(b) Policy.--It is the policy of the United States that--
(1) United States citizens and entities are free to explore
and use space, including the utilization of outer space and
resources contained therein, without conditions or limitations;
(2) this freedom is only to be limited when necessary to
assure United States national security interests are met and to
authorize and supervise nongovernmental space activities to
assure such activities are carried out in conformity with the
international obligations of the United States under the Outer
Space Treaty;
(3) to the maximum extent practicable, the Federal Government
shall interpret and fulfill its international obligations to
minimize regulations and limitations on the freedom of United
States nongovernmental entities to explore and use space;
(4) to the maximum extent practicable, the Federal Government
shall take steps to protect the physical safety of space
objects operated by the United States that do not involve
limitations on the freedoms of nongovernmental entities of the
United States; and
(5) nongovernmental activities in outer space shall only be
authorized and supervised in a transparent, timely, and
predictable manner, with minimal costs and burdens placed on
the entities authorized and supervised.
(c) Purposes.--The purposes of this Act and the amendments made by
this Act are--
(1) to enhance the existing outer space authorization and
supervision framework to provide greater transparency, greater
efficiency, and less administrative burden for nongovernmental
entities of the United States seeking to conduct space
activities; and
(2) to ensure that the United States remains the world leader
in commercial space activities.
(d) Definitions.--In this Act--
(1) the term ``Agreement on the Rescue of Astronauts and the
Return of Space Objects'' means the Agreement on the Rescue of
Astronauts, the Return of Astronauts and the Return of Objects
Launched into Outer Space (signed at Washington, Moscow, and
London on April 22, 1968, ratified by the United States on
December 3, 1968; 19 UST 7570);
(2) the term ``Convention on Registration of Space Objects''
means the Convention on Registration of Objects Launched into
Outer Space (signed at New York on January 14, 1975, ratified
by the United States on September 15, 1976; 28 UST 695);
(3) the term ``covered treaties on outer space'' means--
(A) the Outer Space Treaty;
(B) the Agreement on the Rescue of Astronauts and the
Return of Space Objects;
(C) the Convention on Registration of Space Objects;
and
(D) the Liability Convention;
(4) the term ``Liability Convention'' means the Convention on
the International Liability for Damage Caused by Space Objects
(signed at Washington, Moscow, and London on March 29, 1972,
ratified by the United States on October 9, 1973; 24 UST 2389);
and
(5) the term ``Outer Space Treaty'' means the Treaty on
Principles Governing the Activities of States in the
Exploration and Use of Outer Space, including the Moon and
Other Celestial Bodies (signed at Washington, Moscow, and
London on January 27, 1967, ratified by the United States on
October 10, 1967; 18 UST 2410).
SEC. 3. CERTIFICATION TO OPERATE SPACE OBJECTS.
Title 51, United States Code, is amended by adding at the end the
following:
``Subtitle VIII--Authorization and Supervision of Nongovernmental Space
Activities
``CHAPTER 801--CERTIFICATION TO OPERATE SPACE OBJECTS
``Sec.
``80101. Definitions.
``80102. Certification authority.
``80103. Certification application and requirements.
``80104. Mitigation of space debris.
``80105. Continuing certification requirements.
``80106. Certification transfer.
``80107. Certification expiration and termination.
``80108. Existing license or pending application for launch or reentry.
``80109. Private Space Activity Advisory Committee.
``80110. Exemptions.
``80111. Protecting the interests of United States entity space
objects.
``Sec. 80101. Definitions
``In this subtitle:
``(1) Agency.--The term `agency' has the meaning given the
term Executive agency in section 105 of title 5.
``(2) Agreement on the rescue of astronauts and the return of
space objects.--The term `Agreement on the Rescue of Astronauts
and the Return of Space Objects' means the Agreement on the
Rescue of Astronauts, the Return of Astronauts and the Return
of Objects Launched into Outer Space (signed at Washington,
Moscow, and London on April 22, 1968, ratified by the United
States on December 3, 1968; 19 UST 7570).
``(3) Convention on registration of space objects.--The term
`Convention on Registration of Space Objects' means the
Convention on Registration of Objects Launched into Outer Space
(signed at New York on January 14, 1975, ratified by the United
States on September 15, 1976; 28 UST 695).
``(4) Covered treaties on outer space.--The term `covered
treaties on outer space' means--
``(A) the Outer Space Treaty;
``(B) the Agreement on the Rescue of Astronauts and
the Return of Space Objects;
``(C) the Convention on Registration of Space
Objects; and
``(D) the Liability Convention.
``(5) Liability convention.--The term `Liability Convention'
means the Convention on the International Liability for Damage
Caused by Space Objects (signed at Washington, Moscow, and
London on March 29, 1972, ratified by the United States on
October 9, 1973; 24 UST 2389).
``(6) National of the united states.--The term `national of
the United States' has the meaning given such term in section
101(a) of the Immigration and Nationality Act (8 U.S.C.
1101(a)).
``(7) Outer space treaty.--The term `Outer Space Treaty'
means the Treaty on Principles Governing the Activities of
States in the Exploration and Use of Outer Space, including the
Moon and Other Celestial Bodies (signed at Washington, Moscow,
and London on January 27, 1967, ratified by the United States
on October 10, 1967; 18 UST 2410).
``(8) Secretary.--The term `Secretary' means, except as
otherwise provided in this subtitle, the Secretary of Commerce,
acting through the Office of Space Commerce.
``(9) Space-based remote sensing system.--The term `space-
based remote sensing system' means a space object in Earth
orbit that is--
``(A) designed to image the Earth; or
``(B) capable of imaging a space object in Earth
orbit operated by the Federal Government.
``(10) Space debris mitigation.--The term `space debris
mitigation' means efforts to--
``(A) prevent on-orbit break-ups;
``(B) remove spacecraft that have reached the end of
their mission operation from useful densely populated
orbit regions; and
``(C) limit the amount of debris released during
normal operations of a space object.
``(11) Space object.--
``(A) In general.--The term `space object' means--
``(i) a human-made object located in outer
space, including on the Moon and other
celestial bodies, with or without human
occupants, that was launched from Earth, such
as a satellite or a spacecraft, including
component parts of the object; and
``(ii) all items carried on such object that
are intended for use in outer space outside of,
and independent of, the operation of such
object.
``(B) Inclusion.--Such term includes any human-made
object that is--
``(i) manufactured or assembled in outer
space; and
``(ii) intended for operations in outer space
outside of, and independent of, the operations
of such object in which the manufacturing or
assembly occurred.
``(C) Exclusions.--Such term does not include--
``(i) an article on board a space object that
is only intended for use inside the space
object;
``(ii) an article manufactured or processed
in outer space that is a material; or
``(iii) an article intended for use outside
of a space object as part of the certified
operations of the space object.
``(12) State.--The term `State' means each of the several
States of the United States, the District of Columbia, the
Commonwealth of Puerto Rico, the United States Virgin Islands,
Guam, American Samoa, the Commonwealth of the Northern Mariana
Islands, and any other commonwealth, territory, or possession
of the United States.
``(13) United states.--The term `United States' means the
States, collectively.
``(14) United states entity.--The term `United States entity'
means--
``(A) an individual who is a national of the United
States; or
``(B) a nongovernmental entity organized or existing
under, and subject to, the laws of the United States or
a State.
``Sec. 80102. Certification authority
``(a) In General.--Not later than 1 year after the date of enactment
of the American Space Commerce Free Enterprise Act of 2017, the
Secretary shall begin issuing certifications for the operation of a
space object to any United States entity who submits an application for
a certification in satisfaction of the requirements of this chapter.
``(b) Consultation.--The Secretary shall, as the Secretary considers
necessary, consult with the heads of other relevant agencies in
carrying out the requirements of this chapter, pursuant to section
80311.
``(c) Certification Required for Operation.--Beginning on the date
that is 1 year after the date of enactment of the American Space
Commerce Free Enterprise Act of 2017, a United States entity may not
operate a space object unless the entity holds a certification issued
under this chapter for the operation of such object or the entity holds
a valid payload approval for launch or reentry under section 50904 as
part of a license issued under chapter 509, and that satisfies the
requirements of section 80108(a).
``(d) Foreign Entities Prohibited.--The Secretary may not issue a
certification under this chapter to any person who is not a United
States entity.
``(e) Coverage of Certification.--The Secretary shall, to the maximum
extent practicable, require only 1 certification under this chapter for
a United States entity to--
``(1) conduct multiple operations carried out using a single
space object;
``(2) operate multiple space objects that carry out
substantially similar operations; or
``(3) use multiple space objects to carry out a single space
operation.
``Sec. 80103. Certification application and requirements
``(a) Application Process.--
``(1) In general.--To be eligible for a certification or
transfer of a certification to operate a space object under
this chapter, a United States entity shall submit an
application to the Secretary as provided in paragraph (2). Such
application shall include, for each required item or
attestation, sufficient evidence to demonstrate each fact or
assertion.
``(2) Contents.--An application described in paragraph (1)
shall include only the following information, with respect to
each space object and the operations proposed to be certified:
``(A) The name, address, and contact information of
one or more nationals of the United States designated
by the applicant as responsible for the operation of
the space object.
``(B) An affirmation, and a document of proof, that
the applicant is a United States entity.
``(C) If available at the time of submission of the
application, the planned date and location of the
launch of the space object, including the identity of
the launch provider.
``(D) The general physical form and composition of
the space object.
``(E) A description of the proposed operations of the
space object that includes--
``(i) when and where the space object will
operate; and
``(ii) when and where the operation of the
space object will terminate.
``(F) A description of how the space object will be
operated and disposed of in a manner to mitigate the
generation of space debris.
``(G) Information about third-party liability
insurance obtained, if any, by the applicant for
operations of the space object, including the amount
and coverage of such liability insurance.
``(H) Whether the space object will include a space-
based remote sensing system.
``(3) Attestations.--An application described in paragraph
(1) shall contain an attestation by the applicant of each the
following:
``(A) The space object is not a nuclear weapon or a
weapon of mass destruction.
``(B) The space object will not carry a nuclear
weapon or weapon of mass destruction.
``(C) The space object will not be operated or used
for testing of any weapon on a celestial body.
``(D) All information in the application and
supporting documents is true, complete, and accurate.
``(b) Review of Application.--
``(1) Verification of information and attestations.--Not
later than 90 days after receipt of an application under this
section, the Secretary shall verify that--
``(A) the application is complete, including any
required supporting documents;
``(B) the application does not contain any clear
indication of fraud or falsification; and
``(C) the application contains each attestation
required under subsection (a)(3).
``(2) Determination.--Not later than 90 days after receipt of
an application under this section--
``(A) if the Secretary verifies that the applicant
has met the application requirements described in
paragraph (1), the Secretary shall approve the
application and issue a certification to the applicant
with or without conditions on the proposed operation of
the space object pursuant to subsection (c)(1)(A); or
``(B) if the Secretary cannot verify that the
applicant has met the application requirements
described in paragraph (1) or if the Secretary
determines it is necessary to deny the application
pursuant to subsection (c)(1)(B), the Secretary--
``(i) shall issue a denial of the application
signed by the Secretary (a duty that may not be
delegated, including to the Office of Space
Commerce); and
``(ii) shall, not later than 10 days after
the decision to deny the certification--
``(I) provide the applicant with a
written notification containing a
clearly articulated rationale for the
denial that provides, to the maximum
extent practicable, guidance to the
applicant as to how such rationale for
denial could be addressed in a
subsequent application; and
``(II) notify the Committee on
Commerce, Science, and Transportation
of the Senate and the Committee on
Science, Space, and Technology of the
House of Representatives of such
rationale.
``(3) Automatic approval.--If the Secretary has not approved
or denied the application before the deadline under paragraph
(2), the certification shall be approved without condition. The
Secretary may not allow tolling of the 90-day period under such
paragraph.
``(4) Improper basis for denial.--The Secretary may not deny
an application for a certification under this section in order
to protect an existing certification holder from competition.
``(5) Subsequent review.--The Secretary may not prejudice a
new application for the proposed operations denied pursuant to
paragraph (2)(B) if such new application contains remedies
addressing the rationale for such denial.
``(c) Compliance With the Outer Space Treaty.--
``(1) In general.--If the Secretary determines, with clear
and convincing evidence, that the proposed operation of a space
object under an application for a certification under this
chapter is a violation of an international obligation of the
United States pertaining to a nongovernmental entity of the
United States under the Outer Space Treaty--
``(A) the Secretary may condition the proposed
operation covered by the certification only to the
extent necessary to prevent a violation of such
international obligation; or
``(B) if the Secretary determines that there is no
practicable way to condition such certification to
prevent such a violation, the Secretary may deny the
application.
``(2) Limitation for determinations.--A determination under
paragraph (1) shall be limited as follows:
``(A) The Federal Government shall interpret and
fulfill its international obligations under the Outer
Space Treaty in a manner that minimizes regulations and
limitations on the freedom of United States
nongovernmental entities to explore and use space.
``(B) The Federal Government shall interpret and
fulfill its international obligations under the Outer
Space Treaty in a manner that promotes free enterprise
in outer space.
``(C) The Federal Government shall not presume all
obligations of the United States under the Outer Space
Treaty are obligations to be imputed upon United States
nongovernmental entities.
``(D) Guidelines promulgated by the Committee on
Space Research may not be considered international
obligations of the United States.
``(3) Presumptions.--In making a determination under
paragraph (1), the Secretary shall presume, absent clear and
convincing evidence to the contrary, that--
``(A) any attestation made by an applicant pursuant
to subsection (a)(3) is sufficient to meet the
international obligations of the United States
pertaining to nongovernmental entities of the United
States under the Outer Space Treaty addressed by such
attestation; and
``(B) reasonably commercially available efforts are
sufficient to be in conformity with the international
obligations of the United States pertaining to
nongovernmental entities of the United States under the
Outer Space Treaty.
``(4) Prohibition on retroactive conditions.--No other
modifications may be made, or additional conditions placed, on
a certification after the date on which the certification is
issued (except to account for a material change as provided in
section 80105(c) or the removal of a condition pursuant to
subsection (d)).
``(5) Nondelegable.--The responsibilities of the Secretary
under this subsection may not be delegated, including to the
Office of Space Commerce.
``(d) Authority To Remove Conditions.--The Secretary, as determined
appropriate, may remove a condition placed on a certification pursuant
to subsection (c).
``Sec. 80104. Mitigation of space debris
``(a) Plan Submission.--To be eligible for a certification under this
chapter, each application shall include a space debris mitigation plan
for the space object. Such plan--
``(1) shall take into account best practice guidelines
promulgated by the United States and the Interagency Debris
Coordinating Committee; and
``(2) may take into account that a space object may end
certified operations and be stored in a safe manner until such
time as the space object is permanently disposed of or
certified for further operations.
``(b) Implementation.--To the maximum extent practicable, a holder of
a certification under this chapter shall notify the Secretary not later
than 30 days before beginning to implement the disposal phase of a
space debris mitigation plan described in subsection (a). Such
certification holder shall, not later than 30 days after completing
implementation of such phase, update the Secretary of the results of
any space debris mitigation efforts.
``Sec. 80105. Continuing certification requirements
``(a) Notification Requirement.--A certification holder shall, in a
timely manner, notify the Secretary if--
``(1) a certified space object has terminated operations; or
``(2) a catastrophic event has occurred to a certified space
object, such as the unplanned destruction of a space object.
``(b) Material Change.--The Secretary shall require certification
holders to inform the Secretary of--
``(1) any material changes to the space object or the planned
operations of the space object prior to launch; and
``(2) any material anomalies or departures from the planned
operations during the course of operations.
``(c) Update to Certification.--Not later than 14 days after the date
of receipt of information regarding a material change pursuant to
subsection (b), the Secretary shall make a determination of whether
such material change is substantial enough to warrant additional review
under section 80103(b). Not later than 90 days after a determination
that such review is warranted, the Secretary shall complete a similar
such review process for such material change as is required for a
certification applicant under such section.
``Sec. 80106. Certification transfer
``(a) In General.--Subject to subsections (b) and (c), the Secretary
shall provide for the transfer of a certification under this chapter
from the certification holder to another United States entity to
continue the operations allowed under such certification.
``(b) Transfer Request Requirements.--To be eligible for a transfer
under subsection (a), the certification holder shall submit to the
Secretary a request that includes--
``(1) any identifying information regarding the proposed
transferee, including accompanying supporting documents, that
would be required under an initial application under section
80103; and
``(2) each attestation required under section 80103(a)(3),
including accompanying supporting documents, completed by the
proposed transferee.
``(c) Determination.--Not later than 90 days after a certification
holder submits a request under subsection (b), the Secretary shall
complete a similar review process for the request for transfer as
required for a certification applicant under section 80103(b).
``Sec. 80107. Certification expiration and termination
``(a) Certification Expiration.--A certification issued under this
chapter shall expire on the earlier of--
``(1) the date on which all operations approved under such
certification cease, including carrying out a space debris
mitigation plan of any space object approved under such
certification;
``(2) the date on which all space objects approved under the
certification no longer exist; or
``(3) the date that is 5 years after the date on which the
certification was approved, if no operations approved under the
certification have commenced by such date.
``(b) Certification Termination.--
``(1) In general.--The Secretary shall terminate a
certification under this chapter if an applicant or
certification holder is convicted of a violation of section
1001 of title 18 related to the certification process under
this chapter.
``(2) Eligibility.--A certification holder whose
certification is terminated under this subsection shall be
ineligible to apply for or receive a certification under this
chapter.
``(3) Space debris mitigation plan.--Upon termination of a
certification under paragraph (1), the Secretary may require
the certification holder to carry out the space debris
mitigation plan submitted by the certification holder under
section 80104.
``Sec. 80108. Existing license or pending application for launch or
reentry
``(a) Continuation of Existing License.--Any United States entity for
whom a payload has been approved (and not subject to an exemption under
section 80110) on or before the effective date of this section for
launch or reentry under section 50904 as part of a license issued under
chapter 509 may--
``(1) elect to be immediately considered certified for
operation under this chapter on such effective date, in which
case all terms and conditions applicable to the payload as
approved for launch or reentry as part of a license issued
under chapter 509 shall apply for the duration of the operation
of the payload; or
``(2) apply for a certification under this chapter for the
operation of the licensed activities and may continue to
operate pursuant to such license until such time as such
certification is issued.
``(b) Rescinding or Transfer of Pending License.--A payload of a
United States entity that, on the effective date of this section, is
pending approval under section 50904 as part of a launch or reentry
license issued under chapter 509 may be, at the election of the
applicant for payload approval--
``(1) rescinded without prejudice; or
``(2) transferred to the Office of Space Commerce and deemed
to be a pending application for certification under this
chapter.
``(c) Effective Date.--This section shall take effect on the date
that is 1 year after the date of enactment of the American Space
Commerce Free Enterprise Act of 2017.
``Sec. 80109. Private Space Activity Advisory Committee
``(a) Establishment.--The Secretary shall establish a Private Space
Activity Advisory Committee (in this section referred to as the
`Committee') consisting of 15 members who shall be appointed by the
Secretary.
``(b) Chair.--The Committee shall designate one member as the chair
of the Committee.
``(c) Membership.--
``(1) Limitation.--Members of the Committee may not be
Federal Government employees or officials.
``(2) Travel expenses.--Members of the Committee shall
receive travel expenses, including per diem in lieu of
subsistence, in accordance with the applicable provisions under
subchapter I of chapter 57 of title 5.
``(3) Qualifications.--Members of the Committee shall include
a variety of space policy, engineering, technical, science,
legal, and finance professionals. Not less than 3 members shall
have significant experience working in the commercial space
industry.
``(d) Terms.--Each member of the Committee shall serve for a term of
4 years and may not serve as a member for the 2-year period following
the date of completion of each such term.
``(e) Duties.--The duties of the Committee shall be to--
``(1) analyze the status and recent developments of
nongovernmental space activities;
``(2) analyze the effectiveness and efficiency of the
implementation of the certification process under this chapter;
``(3) provide recommendations to the Secretary and Congress
on how the United States can facilitate and promote a robust
and innovative private sector that is investing in, developing,
and operating space objects;
``(4) identify any challenges the United States private
sector is experiencing--
``(A) with the authorization and supervision of the
operation of space objects under this chapter;
``(B) more generally, with international obligations
of the United States relevant to private sector
activities in outer space;
``(C) with harmful interference to private sector
activities in outer space; and
``(D) with access to adequate, predictable, and
reliable radio frequency spectrum;
``(5) review existing best practices for United States
entities to avoid the harmful contamination of the Moon and
other celestial bodies;
``(6) review existing best practices for United States
entities to avoid adverse changes in the environment of the
Earth resulting from the introduction of extraterrestrial
matter;
``(7) provide information, advice, and recommendations on
matters relating to United States private sector activities in
outer space; and
``(8) provide information, advice, and recommendations on
matters related to the authority of the Secretary under this
chapter or to private sector space activities authorized
pursuant to this chapter that the Committee determines
necessary.
``(f) Annual Report.--The Committee shall submit to Congress, the
President, and the Secretary an annual report that includes the
information, analysis, findings, and recommendations described in
subsection (e).
``(g) Sunset.--The Committee shall terminate on the date that is 10
years after the date on which the Committee is established.
``Sec. 80110. Exemptions
``(a) In General.--A certification is not required under this chapter
for any of the following operations:
``(1) Space object activities authorized by another country
that is a party to the Outer Space Treaty.
``(2) Launch or reentry vehicle operations licensed by the
Department of Transportation under chapter 509.
``(3) Space stations licensed by the Federal Communications
Commission under the Communications Act of 1934 (47 U.S.C. 151
et seq.).
``(b) Rule of Construction.--Nothing in this section shall be
construed to exempt any entity from the requirement to obtain a permit
to operate a space-based remote sensing system under chapter 802.
``Sec. 80111. Protecting the interests of United States entity space
objects
``The President shall--
``(1) protect the interests of United States entity
exploration and use of outer space, including commercial
activity and the exploitation of space resources, from acts of
foreign aggression and foreign harmful interference;
``(2) protect ownership rights of United States entity space
objects and obtained space resources; and
``(3) ensure that United States entities operating in outer
space are given due regard.''.
SEC. 4. PERMITTING OF SPACE-BASED REMOTE SENSING SYSTEMS.
(a) Findings.--Congress finds the following:
(1) The commercial market for space-based remote sensing
technologies and information has experienced significant growth
since the passage of the Land Remote Sensing Policy Act of
1992.
(2) It is in the interest of the United States to foster new
and novel space-based remote sensing applications and services
and to help facilitate their continued domestic growth.
(3) Since the passage of the Land Remote Sensing Policy Act
of 1992, the National Oceanic and Atmospheric Administration's
Office of Commercial Remote Sensing has experienced a
significant increase in applications for private remote sensing
space system licenses as authorized under section 60121 of
title 51, United States Code.
(4) Many of the applicants for commercial space-based remote
sensing licenses have encountered significant delays and
unnecessary obstacles in the application process.
(5) The current licensing paradigm must be updated as to not
discourage the continued growth of the United States space-
based remote sensing industry. It must be updated in a way that
satisfies the needs of commercial remote sensing market as well
as the national security of the United States.
(6) In order to protect United States leadership and
commercial viability in remote sensing technologies, the
Federal Government should not limit commercial entities from
providing remote sensing capabilities or data products that are
available or reasonably expected to be made available in the
next 3 years in the international or domestic marketplace.
(b) Policy.--It is the policy of the United States that, to the
maximum extent practicable, the Federal Government shall take steps to
protect the national security interests of the United States that do
not involve regulating or limiting the freedoms of United States
nongovernmental entities to explore and use space. Federal Government
agencies shall mitigate any threat to national security posed by the
exploration and use of outer space by United States citizens and
entities, to the maximum extent practicable, changing Federal
Government activities and operations.
(c) Amendment.--Title 51, United States Code, is further amended by
adding at the end the following:
``CHAPTER 802--PERMITTING OF SPACE-BASED REMOTE SENSING SYSTEMS
``Sec.
``80201. Permitting authority.
``80202. Application for permit.
``80203. Continuing permitting requirements.
``80204. Permit transfer.
``80205. Agency activities.
``80206. Annual reports.
``80207. Advisory Committee on Commercial Remote Sensing.
``80208. Continuation of existing license or pending application.
``80209. Commercial Remote Sensing Regulatory Affairs Office.
``Sec. 80201. Permitting authority
``(a) In General.--Not later than 1 year after the date of enactment
of the American Space Commerce Free Enterprise Act of 2017, the
Secretary is authorized to permit persons to operate space-based remote
sensing systems.
``(b) Consultation.--The Secretary shall, as the Secretary considers
necessary, consult with the heads of other relevant agencies in
carrying out the requirements of this chapter, pursuant to section
80311.
``(c) Limitation With Respect to System Used for Other Purposes.--In
the case of a space object that is used for remote sensing and other
purposes, the authority of the Secretary under this chapter shall be
limited to the remote sensing operations of such space object.
``(d) De Minimis Exception.--
``(1) Waiver.--The Secretary may waive the requirement for a
permit for a space-based remote sensing system that the
Secretary determines is--
``(A) ancillary to the primary design purpose of the
space object; or
``(B) too trivial to require a determination under
section 80202(c) relating to national security.
``(2) Guidance.--Not later than 1 year after the date of
enactment of this subsection, the Secretary shall issue
guidance providing a clear explanation of the criteria used by
the Secretary to grant a de minimis waiver under paragraph
(1)(B) for a space-based remote sensing system that is too
trivial to require a determination under section 80202(c).
``(e) Coverage of Permit.--The Secretary shall, to the maximum extent
practicable, ensure that only one permit is required under this chapter
to--
``(1) conduct multiple operations carried out using a space-
based remote sensing system;
``(2) operate multiple space-based remote sensing systems
that carry out substantially similar operations; or
``(3) use multiple space-based remote sensing systems to
carry out a single remote sensing operation.
``(f) Prohibition on Operation.--Not later than 1 year after the date
of enactment of the American Space Commerce Free Enterprise Act of
2017, no person may, directly or through any subsidiary or affiliate,
operate any space-based remote sensing system without a permit issued
under this chapter.
``(g) Responsible Party.--In any case in which the applicant for a
permit under this chapter is not a United States entity, the applicant
shall identify a United States entity that consents to be responsible
for the permitted operation of the space-based remote sensing system.
``(h) Operation of Space-Based Remote Sensing System.--For purposes
of this chapter, the operation of a space-based remote sensing system--
``(1) begins when the system--
``(A) is located in outer space; and
``(B) can meet the minimum threshold and objective
capabilities for the system's stated need; and
``(2) shall not cover the acts of distribution, sale, or
transfer of data, information, or services to persons, foreign
or domestic, including any such acts taken pursuant to an
agreement with such persons.
``Sec. 80202. Application for permit
``(a) Application Process.--
``(1) In general.--To receive a permit to operate a space-
based remote sensing system under this chapter, a person shall
submit an application to the Secretary as provided in paragraph
(2). Such application shall include, for each required item,
sufficient evidence to demonstrate each fact or assertion.
``(2) Contents.--An application described in paragraph (1)
shall include only the following information, with respect to
each space-based remote sensing system and the operations
proposed to be permitted:
``(A) The name, address, and contact information of
one or more United States entity identified by the
applicant, pursuant to section 80201(g), as responsible
for the operation of the space-based remote sensing
system.
``(B) If available at the time of submission of the
application, the planned date and location of the
launch of the applicable space object, including the
identity of the launch provider.
``(C) The general physical form and composition of
the space-based remote sensing system.
``(D) A description of the proposed operations of the
space-based remote sensing system that includes--
``(i) when and where the space-based remote
sensing system will operate;
``(ii) when and where the operation of the
space-based remote sensing system will
terminate; and
``(iii) any additional information necessary
to make a determination under subsection (c)
regarding a significant threat to national
security, as prescribed in advance in
regulation by the Secretary.
``(E) A description of how the space-based remote
sensing system will be operated and disposed of in a
manner to mitigate the generation of space debris.
``(F) Information about third-party liability
insurance obtained, if any, by the applicant for
operations of the space-based remote sensing system,
including the amount and coverage of such liability
insurance.
``(b) Review of Application.--
``(1) Verifications.--Not later than 90 days after receipt of
an application under this section, the Secretary shall verify
that--
``(A) the application is complete pursuant to
subsection (a); and
``(B) the application does not contain any clear
indication of fraud or falsification.
``(2) Determination.--Not later than 90 days after receipt of
an application under this section--
``(A) if the Secretary verifies that the applicant
has met the application requirements described in
paragraph (1), the Secretary shall approve the
application and issue a permit to the applicant with or
without conditions on the proposed operation of the
space-based remote sensing system pursuant to
subsection (c)(1)(A); or
``(B) if the Secretary cannot verify that the
applicant has met the application requirements
described in paragraph (1) or if the Secretary makes a
determination to deny the application under subsection
(c)(1)(B), the Secretary--
``(i) shall issue a denial of the application
signed by the Secretary (a duty that may not be
delegated, including to the Office of Space
Commerce); and
``(ii) shall, not later than 10 days after
the decision to deny the application--
``(I) provide the applicant with a
written notification containing a
clearly articulated rationale for the
denial that, to the maximum extent
practicable--
``(aa) provides guidance to
the applicant as to how the
articulated rationale for
denial could be addressed in a
subsequent application; and
``(bb) includes all
classified information included
in such rationale for which the
applicant has the required
security clearance; and
``(II) submit a notification of the
denial to the Committee on Commerce,
Science, and Transportation of the
Senate and the Committee on Science,
Space, and Technology of the House of
Representatives that--
``(aa) contains the clearly
articulated rationale for the
denial; and
``(bb) in the case of a
denial pursuant to a national
security determination under
subsection (c)--
``(AA) includes an
explanation of how, and
clear and convincing
evidence that, to the
maximum extent
practicable, the
Federal Government took
steps to mitigate a
significant threat to
the national security
of the United States
posed by the operation
of the applicant's
space-based remote
sensing system by
changing Federal
Government activities
and operations; and
``(BB) may contain
classified information.
``(3) Automatic approval.--If the Secretary has not approved
or denied the application before the deadline under paragraph
(2), the application shall be approved without condition. The
Secretary may not allow tolling of the 90-day period under such
paragraph.
``(4) Improper basis for denial.--The Secretary may not deny
an application for a permit under this section in order to
protect an existing permit holder from competition.
``(5) Subsequent review.--The Secretary may not prejudice a
new application for the proposed operations denied pursuant to
paragraph (2)(B) if such new application contains remedies
addressing the rationale for such denial.
``(c) Addressing National Security Threat.--
``(1) In general.--If the Secretary determines, with clear
and convincing evidence, that the proposed operation of a
space-based remote sensing system under an application for a
permit under this chapter poses a significant threat to the
national security of the United States as provided in paragraph
(2)--
``(A) the Secretary may condition the proposed
operation covered by the permit only to the extent
necessary to address such threat; or
``(B) if the Secretary determines that there is no
practicable way to condition such permit to address
such threat, the Secretary may deny the application.
``(2) Significant threat to national security.--For purposes
of a determination under paragraph (1), a significant threat to
the national security of the United States is a threat--
``(A) that is imminent; and
``(B) that cannot practicably be mitigated through
changes to Federal Government activities or operations.
``(3) Reasonably commercially available efforts.--To the
maximum extent practicable, the Secretary shall only place a
condition on a permit that is achievable using reasonably
commercially available efforts.
``(4) Notification.--Not later than 10 days after the
decision to condition the proposed operation covered by a
permit pursuant to this subsection, the Secretary shall--
``(A) provide the applicant with a written
notification containing a clearly articulated rationale
for the condition that, to the maximum extent
practicable--
``(i) provides guidance to the applicant as
to how the articulated rationale for condition
could be addressed in a subsequent application;
and
``(ii) includes all classified information
included in such rationale for which the
applicant has the required security clearance;
and
``(B) submit a notification of the condition to the
Committee on Commerce, Science, and Transportation of
the Senate and the Committee on Science, Space, and
Technology of the House of Representatives that--
``(i) contains the clearly articulated
rationale for the condition;
``(ii) includes an explanation of how, and
clear and convincing evidence that, to the
maximum extent practicable, the Federal
Government took steps to mitigate a significant
threat to the national security of the United
States posed by the operation of the
applicant's space-based remote sensing system
by changing Federal Government activities and
operations; and
``(iii) may contain classified information.
``(5) Prohibition on retroactive conditions.--No other
modifications may be made, or additional conditions placed, on
a permit after the date on which the permit is issued except to
account for a material change as provided in section 80203(c).
``(6) Nondelegable.--The responsibilities of the Secretary
under this subsection may not be delegated, including to the
Office of Space Commerce.
``(d) Limitations on Conditions.--
``(1) Same or similar capability.--No operational condition
under subsection (c) may be placed on a space-based remote
sensing system that has the same or substantially similar
space-based remote sensing capabilities as another system
permitted under this chapter with no such condition.
``(2) Conditions that exceed permitted conditions.--The
Secretary may not place a condition on a permit for a space-
based remote sensing system that exceeds a condition placed on
an existing permitted system that has the same or substantially
similar capabilities.
``(e) Commercially Available Capability.--
``(1) Exception.--The Secretary may not deny an application
for, or place a condition on, a permit for the operation of a
space-based remote sensing system for which the same or
substantially similar capabilities, derived data, products, or
services are already commercially available or reasonably
expected to be made available in the next 3 years in the
international or domestic marketplace. The exception in the
previous sentence applies regardless of whether the marketplace
products and services originate from the operation of aircraft,
unmanned aircraft, or other platforms or technical means or are
assimilated from a variety of data sources.
``(2) Clear and convincing evidence.--Each denial of an
application for, and each condition placed on, a permit for the
operation of a space-based remote sensing system, shall include
an explanation of, and clear and convincing evidence that, the
exception under paragraph (1) does not apply with respect to
the proposed permitted operations of such system.
``(3) Database.--The President shall--
``(A) maintain a database of commercially available
capabilities described in paragraph (1);
``(B) update such database not less than once every 3
months; and
``(C) submit to the Committee on Commerce, Science,
and Transportation of the Senate and the Committee on
Science, Space, and Technology of the House of
Representatives a report containing the contents of the
database upon each update required under subparagraph
(B).
``(4) Applicant submissions.--An applicant for, or holder of,
a permit for the operation of a space-based remote sensing
system may submit to the Secretary evidence of, or information
regarding, a commercially available capability described in
paragraph (1) for consideration for inclusion in the database.
``(5) Nonapplication of condition.--In any case in which the
Secretary determines that the exception under paragraph (1)
applies with respect to a permit for the operation of a space-
based remote sensing system for which the Secretary has placed
a condition under subsection (c), such condition shall no
longer apply with respect to such permitted operations.
``(f) Authority To Remove Conditions.--Nothing in this section shall
be construed to prohibit the Secretary from removing a condition placed
on a permit pursuant to subsection (c).
``Sec. 80203. Continuing permitting requirements
``(a) Notification Requirement.--A permit holder shall, in a timely
manner, notify the Secretary if--
``(1) a permitted space-based remote sensing system has
terminated operations; or
``(2) a catastrophic event has occurred to a space-based
remote sensing system, such as the unplanned destruction of
such system.
``(b) Material Change.--The Secretary shall require permit holders to
inform the Secretary of--
``(1) any material changes to the space-based remote sensing
system or the planned operations of such system prior to
launch; and
``(2) any material anomalies or departures from the planned
operations during the course of operations.
``(c) Update to Permit.--Not later than 14 days after the date of
receipt of information regarding a material change pursuant to
subsection (b), the Secretary shall make a determination of whether
such material change is substantial enough to warrant additional review
under section 80202(b). Not later than 90 days after a determination
that such review is warranted, the Secretary shall complete a similar
such review process for such material change as is required for a
permit applicant under such section.
``Sec. 80204. Permit transfer
``(a) In General.--Subject to subsections (b) and (c), the Secretary
shall provide for the transfer of a permit under this chapter from the
permit holder to another person to continue the operations allowed
under such permit.
``(b) Transfer Request Requirements.--To be eligible for a transfer
under subsection (a), the permit holder shall submit to the Secretary a
request that includes any identifying information regarding the
transferee that would be required under an initial application under
section 80202.
``(c) Determination.--Not later than 14 days after the date on which
the Secretary receives a transfer request pursuant to subsection (b),
the Secretary shall make a determination of whether such material
change is substantial enough to warrant additional review under section
80202(b). Not later than 90 days after a determination that such review
is warranted, the Secretary shall complete a similar such review
process for such transferee as is required for a permit applicant under
such section.
``(d) Material Change.--Any transfer of a permit under this chapter
constitutes a material change under section 80203(b).
``Sec. 80205. Agency activities
``(a) Utilization of Federal Government Vehicle.--A person may apply
for a permit to operate a space-based remote sensing system that
utilizes, on a space-available basis, a civilian Federal Government
satellite or vehicle as a platform for such system. The Secretary,
pursuant to this chapter, may permit such system if it meets all
conditions of this chapter.
``(b) Assistance.--The Secretary may offer assistance to persons in
finding appropriate opportunities for the utilization described in
subsection (a).
``(c) Agreements.--To the extent provided in advance by appropriation
Acts, an agency may enter into an agreement for the utilization
described in subsection (a) if such agreement is consistent with the
agency's mission and statutory authority, and if the space-based remote
sensing system is issued a permit by the Secretary under this chapter
before commencing operation.
``Sec. 80206. Annual reports
``(a) In General.--The Secretary shall submit a report to the
Committee on Commerce, Science, and Transportation of the Senate and
the Committee on Science, Space, and Technology of the House of
Representatives not later than 180 days after the date of enactment of
the American Space Commerce Free Enterprise Act of 2017, and annually
thereafter, on--
``(1) the Secretary's implementation of this chapter,
including--
``(A) a list of all applications received in the
previous calendar year;
``(B) a list of all applications that resulted in a
permit;
``(C) a list of all applications denied and an
explanation of why each application was denied,
including any information relevant to the adjudication
process of a request for a permit;
``(D) a list of all applications that required
additional information; and
``(E) a list of all applications whose disposition
exceeded the 90-day deadline, the total days overdue
for each application that exceeded such deadline, and
an explanation for the delay; and
``(2) a description of all actions taken by the Secretary
under the administrative authority granted by section 80301.
``(b) Classified Annexes.--Each report under subsection (a) may
include classified annexes as necessary to protect the disclosure of
sensitive or classified information.
``Sec. 80207. Advisory Committee on Commercial Remote Sensing
``(a) Establishment.--The Secretary shall establish an Advisory
Committee on Commercial Remote Sensing (in this section referred to as
the `Committee') consisting of 15 members who shall be appointed by the
Secretary.
``(b) Chair.--The Committee shall designate one member as the chair
of the Committee.
``(c) Membership.--
``(1) Limitation.--Members of the Committee may not be
Federal Government employees or officials.
``(2) Travel expenses.--Members of the Committee shall
receive travel expenses, including per diem in lieu of
subsistence, in accordance with the applicable provisions under
subchapter I of chapter 57 of title 5.
``(d) Terms.--Each member of the Committee shall serve for a term of
4 years and may not serve as a member for the 2-year period following
the date of completion of each such term.
``(e) Duties.--The duties of the Committee shall be to--
``(1) provide information, advice, and recommendations on
matters relating to the United States commercial space-based
remote sensing industry;
``(2) analyze the effectiveness and efficiency of the
implementation of the space-based remote sensing system
permitting process under this chapter;
``(3) provide recommendations to the Secretary and Congress
on how the United States can facilitate and promote a robust
and innovate private sector that is investing in, developing,
and operating space-based remote sensing systems;
``(4) identify any challenges the United States private
sector is experiencing with the authorization and supervision
of the operation of space-based remote sensing systems under
this chapter; and
``(5) provide information, advice, and recommendations on
matters related to the authority of the Secretary under this
chapter or to private sector space activities authorized
pursuant to this chapter that the Committee determines
necessary.
``(f) Annual Report.--The Committee shall submit to Congress, the
President, the Secretary, and the Director of the Office of Space
Commerce, an annual report that includes the information, analysis,
findings, and recommendations described in subsection (e).
``(g) Sunset.--The Committee shall terminate on the date that is 10
years after the date on which the Committee is established.
``Sec. 80208. Continuation of existing license or pending application
``(a) Continuation of Existing License.--Any United States entity for
whom a license for the operation of a space-based remote sensing system
issued under subchapter III of chapter 601 that is valid on the
effective date of this section may--
``(1) elect to be immediately considered permitted for
operation under this chapter, in which case all terms and
conditions of a license issued under such subchapter with
respect to the operation of such system shall apply for the
duration of the license; or
``(2) apply for a permit for operation under this chapter and
may continue to operate pursuant to such license until such
time as such permit is issued.
``(b) Rescind or Transfer of Pending License.--An applicant with an
application for a remote sensing license under subchapter III of
chapter 601 that is pending on the effective date of this section may
be, at the election of the applicant--
``(1) rescinded without prejudice; or
``(2) transferred to the Office of Space Commerce and deemed
to be a pending application for a permit under this chapter.
``(c) Effective Date.--This section shall take effect on the date
that is 1 year after the date of enactment of the American Space
Commerce Free Enterprise Act of 2017.
``Sec. 80209. Commercial Remote Sensing Regulatory Affairs Office
``On the date that is 1 year after the date of enactment of the
American Space Commerce Free Enterprise Act of 2017, the Commercial
Remote Sensing Regulatory Affairs Office of the National Oceanic and
Atmospheric Administration is abolished.''.
SEC. 5. ADMINISTRATIVE PROVISIONS RELATED TO CERTIFICATION AND
PERMITTING.
Title 51, United States Code, is further amended by adding at the end
the following:
``CHAPTER 803--ADMINISTRATIVE PROVISIONS RELATED TO CERTIFICATION AND
PERMITTING
``Sec.
``80301. Administrative authority.
``80302. Consultation.
``80303. Appeal of denial or condition of certification or permit.
``80304. Exclusive authority for determination of international
obligations.
``80305. Limitation on certain agency supervision.
``80306. Commercial exploration and use of outer space.
``80307. Rule of construction on concurrent application submission.
``80308. Federal jurisdiction.
``80309. Global commons.
``80310. Regulatory authority.
``80311. Consultation with relevant agencies.
``80312. Authorization of appropriations.
``Sec. 80301. Administrative authority
``(a) Functions.--In order to carry out the responsibilities
specified in this subtitle, the Secretary may--
``(1) seek an order of injunction or similar judicial
determination from a district court of the United States with
personal jurisdiction over the certification or permit holder
to terminate certifications or permits under this subtitle and
to terminate certified or permitted operations on an immediate
basis, if the Secretary determines that the certification or
permit holder has substantially failed to comply with any
provisions of this subtitle, or with any terms of a
certification or permit;
``(2) provide for civil penalties not to exceed $10,000 (each
day of operation constituting a separate violation) and not to
exceed $500,000 in total, for--
``(A) noncompliance with the certification or
permitting requirements or regulations issued under
this subtitle; or
``(B) the operation of a space object or space-based
remote sensing system without the applicable
certification or permit issued under this subtitle;
``(3) compromise, modify, or remit any such civil penalty;
``(4) seize any object, record, or report, or copies of
materials, documents, or records, pursuant to a warrant from a
magistrate based on a showing of probable cause to believe that
such object, record, or report was used, is being used, or is
likely to be used in violation of this subtitle or the
requirements of a certification or permit or regulation issued
thereunder; and
``(5) make investigations and inquiries concerning any matter
relating to the enforcement of this subtitle.
``(b) Review of Agency Action.--Any holder of, or applicant for, a
certification or a permit who makes a timely request for review of an
adverse action pursuant to paragraph (2) or (4) of subsection (a) shall
be entitled to adjudication by the Secretary on the record after an
opportunity for any agency hearing with respect to such adverse action.
Any final action by the Secretary under this subsection shall be
subject to judicial review under chapter 7 of title 5, as provided in
section 80303 of this chapter.
``(c) No Cost for Certification or Permit.--The Secretary may not
impose a fee or other cost on a holder of, or applicant for--
``(1) a certification under chapter 801; or
``(2) a permit under chapter 802.
``(d) No Authority To Set Conditions.--The Secretary may not impose a
substantive condition on, or any other requirement for, the issuance of
a certification or permit except as specifically provided in this
subtitle.
``(e) FOIA Exemption.--Paragraph (3) of section 552(b) of title 5
shall apply with respect to any filing relating to a certification or a
permit under this subtitle.
``(f) Limitation on Exceptions to Administrative Procedures.--The
exceptions under section 553(a)(1), section 553(b)(B), or section
554(a)(4) of title 5 shall not apply with respect to a certification or
permit under this subtitle.
``Sec. 80302. Consultation
``(a) Sense of Congress.--It is the sense of the Congress that--
``(1) the United States Government has assets in Earth orbit
critical to national security, scientific research, economic
growth, and exploration;
``(2) such assets represent a considerable investment of
United States taxpayers; and
``(3) it is in the national interest of the United States to
facilitate opportunities to provide for the protection of such
assets.
``(b) Review.--Not later than 30 days after the Secretary issues a
certification under chapter 801, the Secretary shall review the
operations of any space objects covered by the certification to
determine whether the interaction between such operations and the
operations of a Federal Government space object present a substantial
risk to the physical safety of a space object operated by either party.
``(c) Requirement To Participate in Consultation.--If the Secretary
makes a determination that a substantial risk identified under
subsection (b) exists, the Secretary may require that the certification
holder participate in a consultation under this section.
``(d) Parties to a Consultation.--
``(1) In general.--A consultation under this section may be
held, with respect to a substantial safety risk identified
under subsection (b), between--
``(A) a certification holder responsible for the
certified space object operations; and
``(B) any entity of the Federal Government operating
a potentially affected space object.
``(2) Participation.--The Secretary may not impose any
requirement on a party pursuant to participation in the
consultation.
``(e) Mitigation of Safety Risk.--In carrying out a consultation, the
Secretary shall--
``(1) facilitate a discussion among the parties to the
consultation;
``(2) encourage a mutual understanding of the safety risk;
and
``(3) encourage, to the maximum extent practicable, voluntary
agreements between the parties to the consultation to improve
the physical safety of affected space object operations or
mitigate the physical safety risk.
``(f) Duration of Consultation; Notice.--Not later than 90 days after
the Secretary requires a consultation under this section, the Secretary
shall--
``(1) complete all activities related to the consultation;
and
``(2) submit to Congress a written notification with respect
to such consultation, that includes--
``(A) the names of each party to the consultation;
``(B) a description of the physical safety risk at
issue;
``(C) whether any voluntary agreement was made by the
parties; and
``(D) the content of any such agreement.
``(g) Rule of Construction.--Nothing in this section shall be
construed to grant any additional authority to the Secretary to
regulate, or place conditions on, any activity for which a
certification or permit is required under this subtitle.
``Sec. 80303. Appeal of denial or condition of certification or permit
``An applicant who is denied a certification under section
80103(b)(2)(B), an applicant who is denied a permit under section
80202(b)(2)(B), or an applicant whose certification or permit is
conditioned pursuant to section 80103(c) or section 80202(c),
respectively, may appeal the denial or placement of a condition to the
Secretary. The Secretary shall affirm or reverse the denial or
placement of a condition after providing the applicant notice and an
opportunity to be heard. The Secretary shall dispose of the appeal not
later than 60 days after the appeal is submitted. If the Secretary
denies the appeal, the applicant may seek review in the United States
Court of Appeals for the District of Columbia Circuit or in the court
of appeals of the United States for the circuit in which the person
resides or has its principal place of business.
``Sec. 80304. Exclusive authority for determination of international
obligations
``Except for the Secretary as authorized by this subtitle, no agency
may impose a requirement or make a finding with regard to an
international obligation of the United States pertaining to a
nongovernmental entity of the United States under the Outer Space
Treaty relating to--
``(1) the operation of a space object certified under chapter
801; and
``(2) the carrying out of a space debris mitigation plan of a
space object for which a certification was issued under chapter
801.
``Sec. 80305. Limitation on certain agency supervision
``(a) In General.--Not later than 1 year after the date of enactment
of the American Space Commerce Free Enterprise Act of 2017, no other
agency shall have the authority to authorize, place conditions on, or
supervise the operation of space objects required to be certified under
chapter 801 or space-based remote sensing systems required to be
permitted under chapter 802 except--
``(1) the Department of Transportation with respect to launch
or reentry vehicle operations licensed under chapter 509; and
``(2) the Federal Communications Commission with respect to
space stations licensed under the Communications Act of 1934
(47 U.S.C. 151 et seq.).
``(b) Agreement Limitations.--Nothing in this section shall be
construed to prevent an agency from including additional terms,
conditions, limitations, or requirements, consistent with applicable
provisions of law, beyond those required in this subtitle in a contract
or other agreement with--
``(1) the holder of a certification under chapter 801 for the
operation of the applicable space object; or
``(2) the holder of a permit under chapter 802 for the
operation of the applicable space-based remote sensing system.
``Sec. 80306. Commercial exploration and use of outer space
``To the maximum extent practicable, the President, acting through
appropriate Federal agencies, shall interpret and fulfill international
obligations, including under the covered treaties on outer space, to
minimize regulations and limitations on the freedom of United States
nongovernmental entities to explore and use space.
``Sec. 80307. Rule of construction on concurrent application submission
``Nothing in this subtitle shall be construed to prevent an applicant
from submitting to the Secretary concurrent applications for a
certification under chapter 801 and a permit under chapter 802. The
Secretary shall provide for applications under chapter 801 and chapter
802 to be filed concurrently or at different times, at the discretion
of the applicant. To the maximum extent practicable, the Secretary
shall avoid duplication of information required in concurrently filed
applications.
``Sec. 80308. Federal jurisdiction
``The district courts shall have original jurisdiction, exclusive of
the courts of the States, of any civil action resulting from the
operation of a space object for which a certification or permit is
required under this subtitle.
``Sec. 80309. Global commons
``Notwithstanding any other provision of law, outer space shall not
be considered a global commons.
``Sec. 80310. Regulatory authority
``(a) In General.--The Secretary shall issue such regulations as are
necessary to carry out this subtitle.
``(b) Reducing Regulatory Burden.--In issuing regulations to carry
out this subtitle, the Secretary shall avoid, to the maximum extent
practicable, the placement of inconsistent, duplicative, or otherwise
burdensome requirements on the operations of United States
nongovernmental entities in outer space.
``Sec. 80311. Consultation with relevant agencies
``(a) In General.--Subject to subsection (b), the Secretary shall, as
the Secretary considers necessary, consult with the heads of other
relevant agencies in carrying out this subtitle.
``(b) Exclusive Authority of the Secretary.--The consultation
authority provided by subsection (a) shall not be interpreted to alter
the exclusive authority of the Secretary to authorize, place conditions
on, and supervise the operation of space objects under chapter 801 and
space-based remote sensing systems under chapter 802, as provided in
and subject to the limitations of section 80305.
``Sec. 80312. Authorization of appropriations
``There are authorized to be appropriated $5,000,000 to the Office of
Space Commerce for fiscal year 2018 to carry out this subtitle.''.
SEC. 6. TECHNICAL AND CONFORMING AMENDMENTS.
(a) Table of Chapters.--The table of chapters of title 51, United
States Code, is amended by adding at the end the following:
``Subtitle VIII--Authorization and Supervision of Nongovernmental Space
Activities
``801. Certification to Operate Space Objects............... 80101
``802. Permitting of Space-Based Remote Sensing Systems..... 80201
``803. Administrative Provisions Related to Certification 80301''.
and Permitting.
(b) Repeals.--
(1) In general.--Title 51, United States Code, is amended as
follows:
(A) Subchapter III of chapter 601 is repealed.
(B) Section 60147 is repealed.
(C) The table of sections for chapter 601 is amended
by striking the item relating to section 60147.
(D) The table of sections for chapter 601 is amended
by striking the items relating to subchapter III.
(2) Effective date.--The amendments made by paragraph (1)
shall take effect on the date that is 1 year after the date of
enactment of this Act.
(c) Technical Corrections.--
(1) In general.--Title 51, United States Code, is amended--
(A) in section 20302(c)(2), by striking ``means has
the meaning'' and inserting ``has the meaning'';
(B) in section 50702(c)(5), by striking ``Space-Based
Position'' and inserting ``Space-Based Positioning'';
and
(C) in section 71102(1), by striking ``tracking
device'' and inserting ``tracking device to''.
(2) Chapter 513.--The table of chapters of title 51, United
States Code, is amended by striking the item related to chapter
513 and inserting the following:
``513. Space Resource Commercial Exploration and Utilization 51301''.
(3) Chapter 701.--The table of chapters of title 51, United
States Code, is amended by striking the item related to chapter
701 and inserting the following:
``701. Use of Space Launch System or Alternatives........... 70101''.
SEC. 7. OFFICE OF SPACE COMMERCE.
Section 50702 of title 51, United States Code, is amended--
(1) in subsection (a), by adding at the end before the period
``, which shall be located in the principal physical location
of the Office of the Secretary of Commerce'';
(2) in subsection (b), by striking ``a senior executive and
shall be compensated at a level in the Senior Executive Service
under section 5382 of title 5 as determined by the Secretary of
Commerce'' and inserting ``appointed by the President and
confirmed by the Senate. The Director shall be the Assistant
Secretary of Commerce for Space Commerce and shall report
directly to the Secretary of Commerce''; and
(3) in subsection (c)--
(A) in paragraph (4), by striking ``and'' at the end;
(B) in paragraph (5), by striking the period at the
end and inserting a semicolon; and
(C) by adding at the end the following:
``(6) to authorize and supervise the operations of United
States nongovernmental entities in outer space, pursuant to
chapter 801 of this title;
``(7) to authorize and supervise the operations of space-
based remote sensing systems pursuant to chapter 802 of this
title; and
``(8) to facilitate and promote the development of best
practices among operators of space objects and space-based
remote sensing systems under this subtitle to address
substantial risks to the physical safety of Federal Government
space objects, including the risk of on-orbit collisions.''.
SEC. 8. RESTRICTION ON PREVENTING LAUNCHES AND REENTRIES OF CERTIFIED
SPACE OBJECTS.
Section 50904(c) of title 51, United States Code, is amended by
adding at the end the following: ``No launch or reentry may be
prevented under this authority on the basis of national security,
foreign policy, or international obligations of the United States,
including under the covered treaties on outer space (as defined in
section 80101) if the payload has received a certification to operate
as a space object under chapter 801.''.
SEC. 9. REPORT ON REGISTRATION OF SPACE OBJECTS.
(a) In General.--Not later than 1 year after the date of enactment of
this Act, the Secretary of Commerce, acting through the Office of Space
Commerce and in consultation with the Private Space Activity Advisory
Committee established under section 80109 of title 51, United States
Code, shall submit to the Committee on Science, Space, and Technology
of the House of Representatives and the Committee on Commerce, Science,
and Transportation of the Senate a report on the implementation of the
space object registration obligations of the United States and other
countries under Article VIII of the Outer Space Treaty and the
Convention on Registration of Space Objects.
(b) Contents of Report.--The report required under subsection (a)
shall include--
(1) an identification of the practices and procedures among
countries that are members of the Outer Space Treaty and the
Convention on Registration of Space Objects in implementing and
complying with the registration obligations contained in the
treaties;
(2) a description of any existing practices and procedures of
the Federal Government for the registration of nongovernmental
space objects; and
(3) recommendations on how the registration of space objects
in the United States could be improved to benefit the United
States, including enabling United States leadership in
commercial space activities.
SEC. 10. COMPTROLLER GENERAL REPORT.
Not later than 180 days after the date of enactment of this Act, the
Comptroller General of the United States shall submit to Congress a
report on removing the Office of Commercial Space Transportation from
under the jurisdiction of the Federal Aviation Administration and
reestablishing the Office under the jurisdiction of the Secretary of
Transportation. Such report shall include--
(1) the identification of key practices for successful
organizational transitions;
(2) the advantages and disadvantages of the removal and
reestablishment with respect to the ability of the Office to
continue to coordinate and communicate with Federal Aviation
Administration on airspace issues; and
(3) the identification of any issues that are preventing the
Office from fully carrying out its statutory mandate, and if
such issues would persist regardless of organizational location
of the Office within the Department of Transportation.
Committee Statement and Views
PURPOSE AND SUMMARY
The purpose of H.R. 2809, the ``American Space Commerce
Free Enterprise Act,'' is to assure conformity with Outer Space
Treaty obligations in the least burdensome manner possible. An
additional purpose is to improve the international
competitiveness of the U.S. by reforming the burdensome and
inefficient space-based remote sensing regulatory system.
BACKGROUND AND NEED FOR LEGISLATION
The U.S. is a Party to the Treaty on Principles Governing
the Activities of States in the Exploration and Use of Outer
Space, including the Moon and Other Celestial Bodies (``Outer
Space Treaty''). Article VI of the Outer Space Treaty
explicitly recognizes that non-governmental entities, such as
private corporations, may explore and use outer space. Article
I states, inter alia:
``Outer space, including the Moon and other celestial
bodies, shall be free for exploration and use by all
States without discrimination of any kind, on a basis
of equality and in accordance with international law,
and there shall be free access to all areas of
celestial bodies''
Article IV then states, inter alia:
``States Parties to the Treaty shall bear
international responsibility for national activities in
outer space, including the Moon and other celestial
bodies, whether such activities are carried on by
governmental agencies or by non-governmental entities,
and for assuring that national activities are carried
out in conformity with the provisions set forth in the
present Treaty. The activities of non-governmental
entities in outer space, including the Moon and other
celestial bodies, shall require authorization and
continuing supervision by the appropriate State Party
to the Treaty.''
In the U.S., a number of non-governmental entities are
investing in and developing the capabilities to explore and use
outer space in unique, novel, and unprecedented ways. This
includes proposals by U.S. non-governmental entities to send
robotic rovers to the surface of the Moon, to operate private
space stations, to conduct on-orbit servicing and repairs, to
prospect, extract, and utilize in-situ space resources, and to
send private manned missions to the Moon, Mars, and beyond.
This bill also advances the national interests of the U.S.
by updating and reforming the regulatory regime governing
space-based remote sensing space systems. The existing regime,
established under the 1992 Land Remote Sensing Act, is outdated
and broken. American industry is not able to receive
authorizations for space-based remote sensing space systems in
a timely fashion. While existing law requires license
applications to be adjudicated in no more than 120 days, in
some instances license applications have languished in
interagency review for years. This is significantly damaging
the pipeline of space-based remote sensing innovation in the
U.S., incentivizing innovative companies to go overseas, and
compromising U.S. national security. By addressing remote
sensing while also reforming authorization and supervision
under the Outer Space Treaty, this bill provides a streamlined
and improved process for both general space operators and
remote sensing operators.
LEGISLATIVE HISTORY
During the 113th, 114th and 115th Congresses, the House
Committee on Science, Space, and Technology held 14 hearings
and seven markups relevant to this bill.
On February 28, 2013, the Space Subcommittee held a hearing
titled ``A Review of the Space Leadership Preservation Act'' to
receive testimony on legislation (H.R. 6491) first introduced
in the 115th Congress and re-introduced for the 115th Congress.
This hearing informed the Committee's consideration of the
policies, organization, programs, and budget in re-authorizing
the National Aeronautics and Space Administration (NASA) this
Congress. The Subcommittee heard testimony from The Honorable
Frank R. Wolf, Chairman of the Commerce-Justice-Science
Subcommittee, The Honorable John Culberson, Mr. A. Thomas
Young, Chair of the Board for SAIC (testifying on his own
behalf), and Mr. Elliot Pulham, Chief Executive Officer of The
Space Foundation.
On June 19, 2013, the Space Subcommittee held a hearing
titled, ``NASA Authorization Act of 2013.'' The purpose of the
hearing was to review a discussion draft of the NASA
Authorization Act of 2013. The most recent NASA Authorization
Act passed in 2010, authorized NASA for three years.
On July 10, 2013, the Space Subcommittee met to consider
H.R. 2687, the NASA Authorization Act of 2013. This measure
contained many provisions that affect commercial space.
On July 18, 2013, the Committee on Science, Space, and
Technology met to consider H.R. 2687, the NASA Authorization
Act of 2013. This measure contained many provisions that affect
commercial space.
On November 20, 2013, the Space Subcommittee held a hearing
titled ``Commercial Space.'' The hearing examined ways that
companies are utilizing federal support and government policies
to grow their commercial businesses in space launch,
communications, GPS, remote sensing, weather monitoring,
suborbital tourism and science experimentation, and human
spaceflight. The witnesses addressed what government policies
would be helpful to the U.S. commercial space industry.
Witnesses also addressed the policies contained in H.R. 3038,
the Suborbital and Orbital Advancement and Regulatory
Streamlining (SOARS) Act. The first witness panel consisted of
the Honorable Kevin McCarthy, Majority Whip of the U.S. House
of Representatives. The second panel consisted of: Ms. Patricia
Cooper, President of the Satellite Industry Association; Mr.
Stuart Witt, CEO and General Manager of the Mojave Air and
Space Port; and Mr. Dennis Tito, Chairman of the Inspiration
Mars Foundation.
On February 4, 2014, the Space Subcommittee held a hearing
titled ``Necessary Updates to the Commercial Space Launch
Act.'' The industry has grown since the passage of the
Commercial Space Launch Act of 1984 (P.L. 98-575) thirty years
ago, and this law has been amended several times since then.
The Commercial Space Launch Act (CSLA) provides authority to
the FAA to license launches and indemnify launch providers from
third-party claims should an accident occur. The law also
provides a framework for the FAA's authority. This hearing
examined the various changes in the industry and what, if any,
accompanying changes to the CSLA may be needed going forward.
The Committee heard from three witnesses: Dr. George Nield,
Associate Administrator for Commercial Space Transportation at
the Federal Aviation Administration; Dr. Alicia Cackley,
Director of Financial Markets and Community Investment Team at
the Government Accountability Office; and Dr. Henry Hertzfeld,
Research Professor of Space Policy and International Affairs at
the Elliot School of International Affairs at George Washington
University.
On March 27, 2014, the Space Subcommittee of the House
Committee on Science, Space, and Technology held a hearing
titled ``A Review of the National Aeronautics and Space
Administration Budget for Fiscal Year 2015'' to review the
Administration's fiscal year 2015 (FY15) budget request for
NASA and examine its priorities and challenges. The hearing had
one witness, the Honorable Charles F. Bolden, Jr.,
Administrator of NASA.
On April 9, 2014, the Space Subcommittee met to consider
H.R. 4412, the NASA Authorization Act of 2014. The Act
contained several provisions regarding barriers to commercial
use of space.
On April 24, 2014, the Space Subcommittee held a hearing
titled ``An Overview of the National Aeronautics and Space
Administration Budget for Fiscal Year 2014'' with NASA
Administrator Charles Bolden to review the Administration's FY
2014 budget request for NASA and examine its priorities and
challenges.
On April 29, 2014, the Committee on Science, Space, and
Technology met to consider H.R. 4412, the NASA Authorization
Act of 2014. The Act contained several provisions regarding
barriers to commercial use of space.
On May 9, 2014, the Space Subcommittee held a hearing
titled ``Space Traffic Management: How to Prevent a Real Life
`Gravity'.'' There are currently three agencies that play a
primary role in tracking and mitigation of orbital debris that
may be hazardous to operational satellites, or life and
property on Earth if the debris reentered the Earth's
atmosphere. The Joint Functional Component Command for Space
(JFCC SPACE), part of the Department of Defense (DoD), is
responsible for tracking orbital debris, the Federal
Communications Commission (FCC) asserts jurisdiction for
mitigating orbital debris from communications satellites, and
the Federal Aviation Administration (FAA) regulates orbital
debris from launch and reentry activities. This hearing
explored the roles and responsibilities of DoD, FAA, and FCC in
policing orbital debris, what authorities are currently granted
by Congress to federal agencies, and how they coordinate these
activities. The Subcommittee heard from five witnesses: Lt.
Gen. John ``Jay'' Raymond, Commander, 14th Air Force, Air Force
Space Command, and Commander, Joint Functional Component
Command for Space, U.S. Strategic Command; Mr. George Zamka,
Deputy Associate Administrator, Office of Commercial Space
Transportation, Federal Aviation Administration; Mr. Robert
Nelson, Chief Engineer, International Bureau, Federal
Communications Commission; Mr. P.J. Blount, Adjunct Professor,
Air and Space Law, University of Mississippi School of Law; and
Mr. Brian Weeden, Technical Advisor, Secure World Foundation.
On September 10, 2014, the hearing titled ``Exploring Our
Solar System: The ASTEROIDS Act as a Key Step'' gave the
Committee an overview of the variety of issues facing the
planetary science community, including challenges the community
is facing due to the low inventories of Pu-238 for deep space
missions, NASA's proposed budget for planetary science, and
potential commercial interests. Witnesses were also asked to
comment on H.R. 5063, the American Space Technology for
Exploring Resource Opportunities In Deep Space (ASTEROIDS) Act.
The Space Subcommittee heard from five witnesses: Dr. Jim
Green, NASA Planetary Science Division Director; Dr. Jim Bell,
Professor of Earth and Space Science Exploration, Arizona State
University, and President, Board of Directors, The Planetary
Society; Dr. Mark Sykes, CEO and Director, Planetary Science
Institute; Professor Joanne Gabrynowicz, Professor Emerita,
Director Emerita, Journal of Space Law Editor-in-Chief Emerita,
University of Mississippi; Dr. Philip Christensen, Co-Chair,
NRC Committee on Astrobiology and Planetary Science (CAPS),
Chair, Mars Panel, NRC Planetary Decadal Survey, Regents
Professor, Arizona State University.
On April 16, 2015, the Space Subcommittee held a hearing
titled ``An Overview of the Budget Proposal for the National
Aeronautics and Space Administration for Fiscal Year 2016.''
The purpose of the hearing was to review the Administration's
fiscal year 2016 (FY16) budget request for NASA and examine the
Administration's priorities and challenges. The sole witness
was the Honorable Charles F. Bolden, Jr., Administrator, NASA.
On April 30, 2015, the Committee on Science, Space, and
Technology met to consider H.R. 2039, the NASA Authorization
Act for 2016 and 2017. This measure contained many provisions
that affect commercial space.
On May 13, 2015, the Committee on Science, Space, and
Technology met to consider H.R. 2262, the Spurring Private
Aerospace Competitiveness and Entrepreneurship Act of 2015;
H.R. 1508, the Space Resource Exploration and Utilization Act
of 2015; H.R. 2261, the Commercial Remote Sensing Act of 2015;
and H.R. 2263, the Office of Space Commerce Act.'' H.R. 1508
was amended to change the definition of ``asteroid resource''
and to further ensure the bill would remain consistent with
existing international obligations. All four bills passed in
the Committee.
On November 17, 2015, the Space Subcommittee with the
Environment Subcommittee held a hearing titled ``Exploring
Commercial Opportunities to Maximize Earth Science
Investments.'' The purpose of the hearing was to explore ways
NASA can satisfy Earth science data requirements through
public-private partnerships, including commercial capabilities.
The subcommittees heard from five witnesses: Dr. Scot Pace,
Director of the Space Policy Institute, George Washington
University; Dr. Walter Scott, Founder and Chief Technical
Officer, DigitalGlobe; Mr. Robbie Schingler, Co-Founder and
President, PlanetLabs; Dr. Samuel Goward, Emeritus Professor of
Geography, University of Maryland at College Park; Dr. Antonio
Busalacchi, Professor and Director of the Earth System Science
Interdisciplinary Center, University of Maryland.
On March 17, 2016, the Space Subcommittee held a hearing
titled ``An Overview of the Budget Proposal for the National
Aeronautics and Space Administration for Fiscal Year 2017.''
The purpose of the hearing was to review the Administration's
fiscal year 2017 (FY17) budget request for NASA. The sole
witness was the Honorable Charles F. Bolden, Jr.,
Administrator, NASA.
On April 19, 2016, the Space Subcommittee held a hearing
titled ``The Commercial Space Launch Industry: Small Satellite
Opportunities and Challenges.'' The purpose of the hearing was
to examine the current state of the small satellite commercial
launch industry. The Subcommittee heard from two witnesses: Mr.
Elliot Pulham, Chief Executive Officer, Space Foundation; and
Mr. Eric Stallmer, President, Commercial Spaceflight Federation
(CSF).
On September 7, 2016, the Space Subcommittee held a hearing
titled ``Commercial Remote Sensing: Facilitating Innovation and
Leadership.'' The purpose of the hearing was to examine the
current state of the space-based remote sensing industry,
including scientific and technical advances in the fields of
space-to-earth and space-to-space remote sensing. Examples of
remote sensing applications include mapping technologies, crop
monitoring, natural resource exploration, and national
security. The hearing also assessed existing U.S. law and
regulation governing private remote sensing space systems,
including whether there is a need to reform existing law and
regulation. The subcommittee heard from five witnesses: Mr.
Kevin O'Connell, President and CEO, Innovative Analytics and
Training LLC, and Former Chair, Federal Advisory Committee on
Commercial Remote Sensing (ACCRES); Mr. Kevin Pomfret,
Executive Director, Centre for Spatial Law and Policy; Ms.
Michele R. Weslander Quaid, President, Sunesis Nexus LLC; Mr.
Michael Dodge, Assistant Professor, Department of Space
Studies, University of North Dakota; and Ms. Joanne
Gabrynowicz, Professor Emerita, University of Mississippi
School of Law.
On March 8, 2017, the Space Subcommittee held a hearing
titled ``Regulating Space: Innovation, Liberty, and
International Obligations.'' The purpose of the hearing was to
examine U.S. international obligations in light of new and
innovative space activities. The Subcommittee heard from five
witnesses: Ms. Laura Montgomery, Attorney and Sole Proprietor,
Ground Based Space Matters, LLC; Dr. Eli Dourado, Senior
Research Fellow and Director, Technology Policy Program,
Mercatus Center, George Mason University; Mr. Doug Loverro,
Former Deputy Assistant Secretary of Defense for Space Policy;
Mr. Dennis J. Burnett, Adjunct Professor of Law, University of
Nebraska-Lincoln, College of Law; and Dr. Henry B. Hogue,
Specialist in American National Government, Congressional
Research Service.
On June 8, 2017, the Space Subcommittee held a hearing
titled ``An Overview of the National Aeronautics and Space
Administration Budget for Fiscal Year 2018.'' The purpose of
the hearing was to review the Administration's fiscal year 2018
(FY18) budget request for NASA. The sole witness was Mr. Robert
M. Lightfoot, Jr., Acting Administrator, NASA.
On June 8, 2017, the Committee on Science, Space, and
Technology met to consider H.R. 2809, the American Space
Commerce Free Enterprise Act of 2017. This measure provides a
transparent U.S. authorization and supervision certification
process for non-governmental space activities that generates
certainty for stakeholders and complies with Outer Space Treaty
obligations and national security concerns in the least
burdensome manner possible.
COMMITTEE VIEWS
Authorization and supervision of U.S. non-governmental entities in
space
H.R. 2809 addresses authorization and supervision of non-
governmental U.S. entities (``U.S. entities''). It is not
intended to apply to government operation of space objects. The
U.S. government and the Executive Branch need not be subjected
to the authorization and supervision authority, as established
in H.R. 2809, to assure U.S. conformity with obligations under
the Outer Space Treaty. The U.S. government assures conformity
of its operations in the normal course of duties as provided by
the Constitution and Federal law.
Freedom of U.S. entities to explore and use outer space is in the
national interest
The freedom of U.S. entities to explore and use outer space
is essential to the national interests of the United States.
Outer space is a vast region of scientific and economic
wealth. Humanity is only beginning to understand and realize
its benefits. The U.S., along with other spacefaring nations,
seeks to explore and use outer space and derive economic
benefits from its utilization. U.S. leadership cannot be
sustained by government investment alone. The U.S. must allow
private sector innovation to ensure continued leadership in the
exploration and use of outer space.
Restricting the freedom of U.S. entities to explore and use
outer space through executive branch regulatory authority
should only be done when absolutely necessary, and when no
other mechanism is available to address national interests.
There are a number of existing legal mechanisms already
available for the Executive Branch to exercise regulatory
authority over and restrict the freedom of U.S. entities to
explore and use outer space to address national interests. This
includes regulatory authorities of the Department of Commerce,
Department of State, Department of Transportation, the FCC, and
the Treasury Department. Expanded regulatory authority is not
necessary.
A streamlined process will assure that the U.S. remains in
conformity with its obligations under the Outer Space Treaty.
Furthermore, existing regulatory authorities governing space-
based remote sensing systems are outdated, cumbersome, not
serving the national interest, and are in need of reform.
Providing a legal and policy environment of freedom will
increase American competitiveness and attract companies,
talent, and investment that otherwise would have gone to other
countries. Companies have many options when it comes to
evaluating where to incorporate, headquarter, manufacture, and
operate. This ensures America and its workforce will benefit
from the developing economy in outer space.
Authorization and supervision of space operations
H.R. 2809 assures conformity with international obligations
of the United States, pursuant to Article VI of Outer Space
Treaty. It does so by establishing an authorization and
supervision certification authority at the Department of
Commerce that can condition or deny space operations to prevent
violations of United States international obligations under the
Outer Space Treaty. It does not grant authority to the
Department of Commerce to authorize and supervise space
operations to assure conformity with any or all international
agreements or arrangements of the United States.
The underlying policy rationale is that the space
operations of U.S. entities should only be regulated, under a
specific regime with the authority to condition or deny space
operations, to assure conformity with Senate advised and
consented, presidentially ratified treaties, pursuant to
Section 2, Clause 2, of the U.S. Constitution. Absent this
policy, other types of international agreements or arrangements
of the United States could be entered into by the Executive
Branch without the advice and consent of the Senate and
thereafter used as a basis to condition or deny U.S. entity
space operations. Such a wide grant of discretionary regulatory
authority to the Executive Branch could undermine the
constitutional principle of separation of powers, and more
importantly, the freedom and liberty of United States entities
to explore and use outer space. The Committee finds that only
the Outer Space Treaty rises to this level today. If, in the
future, other treaties are signed and ratified by the United
States that obligate the United States to regulate U.S. entity
space operations via domestic implementation of legislation,
Congress may then legislate as appropriate.
The Committee recognizes the United States is a Party to
the Outer Space Treaty. Article VI of the Outer Space Treaty
explicitly recognizes that non-governmental entities, such as
private corporations, may explore and use outer space. Article
I states, inter alia:
``Outer space, including the Moon and other celestial
bodies, shall be free for exploration and use by all
States without discrimination of any kind, on a basis
of equality and in accordance with international law,
and there shall be free access to all areas of
celestial bodies''
Article IV then states, inter alia:
``States Parties to the Treaty shall bear
international responsibility for national activities in
outer space, including the Moon and other celestial
bodies, whether such activities are carried on by
governmental agencies or by non-governmental entities,
and for assuring that national activities are carried
out in conformity with the provisions set forth in the
present Treaty. The activities of non-governmental
entities in outer space, including the Moon and other
celestial bodies, shall require authorization and
continuing supervision by the appropriate State Party
to the Treaty.''
In the U.S., a number of non-governmental entities are
investing in and developing the capabilities to explore and use
outer space in unique, novel, and unprecedented ways. This
includes proposals by U.S. non-governmental entities to send
robotic rovers to the surface of the Moon, to operate private
space stations, to conduct on-orbit servicing and repairs, to
prospect, extract, and utilize in-situ space resources, and to
send private manned missions to the Moon, Mars, and beyond.
While the existing regulatory framework in the United
States has, to date, been sufficient to meet U.S. international
obligations under Article VI of the Outer Space Treaty, there
is uncertainty as to whether, in the future, the Executive
Branch would prohibit non-governmental entities from conducting
activities in space based on the Obama Administration's
interpretation of United States obligations under the Outer
Space Treaty.
This uncertainty stems from an April 8, 2016, regulatory
authorization by the Department of Transportation (DOT), FAA,
for the launch of a payload for the company ``Moon Express.''
Specifically, the DOT/FAA stated that while the FAA made a
favorable payload determination for this particular mission,
not all non-traditional space missions may lend themselves to
favorable payload determinations under the payload review
authority under 51 U.S.C. 50904.
No State Party to the Outer Space Treaty has ever issued a
diplomatic demarche to the United States that existing domestic
laws of the United States were insufficient or violated United
States obligations to authorize and supervise non-governmental
activities pursuant to Article VI.
Other Outer Space Treaties
The Committee recognizes that the United States is a Party
to the Convention on International Liability for Damage Caused
by Space Objects, the Convention on Registration of Objects
Launched in Outer Space, and Agreement on the Rescue of
Astronauts, the Return of Astronauts and Return of Objects
Launched in Outer Space (``other Space Treaties''). The
Committee finds that these other Space Treaties do not
implicate an obligation to authorize and supervise non-
governmental entities to assure conformity with their
provisions either pursuant to their own text, generally
accepted means of treaty interpretation, or Article VI of the
Outer Space Treaty. The obligations and rights within these
other Space Treaties are State specific responsibilities that
do not require conditioning or denying the operations of U.S.
entities (e.g. liability, registration, rescue and return of
astronauts). At this time, no provisions of these other Space
Treaties warrant regulating U.S. entity operations in outer
space to assure conformity with such other Space Treaties.
No State Party to these other Space Treaties has ever
issued a diplomatic demarche to the United States that existing
domestic laws of the United States were insufficient or
violated United States obligations under these other Space
Treaties.
Outer Space Treaty obligations are State-to-State obligations, not
private sector obligations
The Outer Space Treaty is an agreement among States Party.
H.R. 2809 assures that the activities of U.S. entities are
carried out in conformity with the provisions set out in the
Treaty. However, these provisions are obligations of the United
States, not obligations of U.S. entities. Not all provisions
should be interpreted to have any legal nexus to U.S. entity
activities and not all provisions should be imputed upon U.S.
entities. Pursuant to Sec. 80103(c)(2)(A), the Federal
Government shall interpret and fulfill its international
obligations under the Outer Space Treaty in a manner that
minimizes regulations and limitations on the freedom of United
States nongovernmental entities to explore and use space. This
should inform determination of imputability. This obligation is
reiterated in Sec. 80305. Likewise, pursuant to
Sec. 80103(c)(2)(B), the Federal Government shall interpret and
fulfill its international obligations under the Outer Space
Treaty in a manner that promotes free enterprise in outer
space.
Rationale for Department of Commerce responsibility H.R.
2809 places the responsibility to authorize and supervise
private space activities to assure conformity with Outer Space
Treaty obligations at the Office of Space Commerce in the
Department of Commerce, not at DOT as proposed by the Obama
Administration in the Section 108 report, required by P.L. 114-
90, delivered to this Committee on April 4, 2016. There are a
number of reasons why placing this responsibility at the
Department of Commerce is the appropriate long-term decision
for the United States and its industry.
Department of Commerce's culture is more aligned with space
activities than DOT's regulatory culture. The mission statement
of the Department of Commerce is to ``create the conditions for
economic growth and opportunity,'' and that mission runs deep
through the culture of the Commerce Department. Choosing DOT
over the Department of Commerce may be more expedient in the
short-term, but at the price foregoing of a long-term optimal
solution. In the near term, some, but not all, planned
activities may have a nexus to transportation. However, as the
space economy develops, in-space activities will focus more on
commerce, and less on transportation to and from Earth. The
Department of Commerce is also accustomed to a number of issues
that future stakeholders will need to consider such as
international trade.
Placing authority at Department of Commerce also
consolidates bureaucracy by merging the Department of Commerce,
Office of Space Commerce, and the Department of Commerce,
Office of Commercial Space Sensing Regulatory Affairs, while
also reforming the current broken space-based remote sensing
regulatory process, and minimizing the burden on other
agencies.
Placing this authority at Department of Commerce
establishes a ``one-stop shop'' for Outer Space Treaty
compliance. Placing that authority within DOT would split the
regulatory system. If DOT was granted this authority, remote
sensing satellite operators would have to seek regulatory
approval for their operations from two different organizations
(the Department of Commerce and DOT).
Placing this authority at the Department of Commerce is a
continuation of long-standing law and national policy. The
Department of Commerce is currently responsible for regulating
a subset of space activities, space-based remote sensing.
Indeed, since 1984, the Department of Commerce has been the
only Federal agency with the legal authority to authorize and
supervise outer space activities. The FCC is authorized to
regulate spectrum transmission and DOT is authorized to
regulate launch and re-entry vehicle activities, but neither of
them have the legal authority to authorize and supervise
private space activities to assure compliance with the Outer
Space Treaty.
Current law prohibits DOT from regulating outer space
activities generally or space object operations beyond the
launch and re-entry of space vehicles. It only has the ability
to deny a launch if no license, authorization, or permit is
required for the payload and the payload jeopardizes specific
interests of the United States. The payload review authority at
DOT was not intended nor designed to facilitate an
authorization or supervision process for Article VI Outer Space
Treaty compliance. Even if such an authority were granted to
DOT, new processes, regulations, personnel, and funding would
be needed for implementation.
Regarding fiscal and staffing requirements, in fiscal year
2017 the Department of Commerce's Commercial Remote Sensing
Regulatory Affairs Office works with five full-time equivalent
employees and a budget of $1.2 million. In fiscal year 2017,
the Office of Space Commerce has three full-time equivalent
employees and a budget of $800,000. H.R. 2809 will abolish the
Commercial Remote Sensing Regulatory Affairs Office and move
its responsibilities, budget, and as appropriate, staff, into
the Office of Space Commerce. H.R. 2809 will streamline remote-
sensing regulatory processes and as a result, require less
staffing to implement. It is anticipated there will be staffing
and fiscal efficiencies gained by the implementation of H.R.
2809 that can be used to offset any possible additional costs
the Department of Commerce will face while implementing
responsibilities under Chapter 801 of the bill. H.R. 2809
authorizes up to $5 million in fiscal year 2018 and fiscal year
2019. The Committee believes that reforming the existing space-
based remote sensing regulatory process, combined with
efficiencies gained by a streamlined, minimally burdensome,
certification process under Chapter 801 of H.R. 2809, and
minimizing the administrative burden on DOT for future payload
reviews, will result in savings for the taxpayer as compared to
staffing and funds used under existing authorities at
Department of Commerce and DOT.
The Committee fully supports DOT and the Office of Space
Transportation. However, in this time of rapid technological
change that the launch industry is experiencing, the Committee
finds that DOT and Office of Space Transportation should focus
their attention on licensing launch and reentry. They should
not be responsible for authorizing and supervising private
space object operations.
Planetary Protection
Pursuant to our international obligations under the Outer
Space Treaty, operations may be conditioned or denied by the
Secretary of Commerce, in consultation with appropriate
agencies such as NASA at the Secretary's discretion, to prevent
violations of U.S. obligation under Article IX of the Outer
Space Treaty.
Article IX states, inter alia:
``In the exploration and use of outer space,
including the Moon and other celestial bodies, States
Parties to the Treaty shall be guided by the principle
of cooperation and mutual assistance and shall conduct
all their activities in outer space, including the Moon
and other celestial bodies, with due regard to the
corresponding interests of all other States Parties to
the Treaty. States Parties to the Treaty shall pursue
studies of outer space, including the Moon and other
celestial bodies, and conduct exploration of them so as
to avoid their harmful contamination and also adverse
changes in the environment of the Earth resulting from
the introduction of extraterrestrial matter and, where
necessary, shall adopt appropriate measures for this
purpose.''
H.R. 2809 posits long-standing United States policy,
confirmed by both the Department of State and NASA, that
Committee on Space Research (COSPAR) planetary protection
guidelines are not international obligations of the United
States and are not legally binding. The United States and
relevant stakeholders, including the scientific community and
industry, should work together as activities expand beyond
scientific exploration and use, to address mutual interests,
and develop reasonable practices that take into account the
need to avoid harmful contamination with the right to explore
and use outer space. To date, no non-governmental entity has
sent a robotic or manned mission to another celestial body. It
is premature to proscribe COSPAR guidelines as binding
international law. Instead, we should be guided by the
principles of the Outer Space Treaty and avail ourselves to the
flexibility these principles provide as State and private
sector practice develops.
The Committee finds that Article IX of the Outer Space
Treaty does not posit a legal obligation of scientific
preservation of outer space or celestial bodies. The Committee
also recognizes that there is not agreement on whether the
obligation to avoid harmful contamination lies only with the
States Parties, or whether non-governmental entities are
similarly obligated.
Certification
The Committee recognizes that the term certification in the
aviation and expendable launch vehicle context carries a
presumption of technical regulation. It is not the intent for
the term certification in H.R. 2809 to have that meaning. On
the contrary, the intent is for the term certification to be
interpreted as confirmation of first-party attestations of
conformity with Outer Space Treaty obligations.
Registration of space objects
The Committee recognizes that the United States has not
implemented in domestic legislation a national registry of
space objects. The State Department reported to the Committee
that long-standing national practice has been for the State
Department to maintain a registry of space objects for the
purposes of satisfying Article VIII of the Outer Space Treaty
and U.S. obligations under the Convention on Registration of
Objects Launched in Outer Space.
H.R. 2809 calls for a report on the registration of space
objects. This report would include recommendations on if, and
how, the registration of space objects in the U.S. could be
improved to benefit the United States.
Need for reform of 1992 Land Remote Sensing Act and space-based remote
sensing regulation
H.R. 2809 reforms provisions of the 1992 Land Remote
Sensing Act governing the regulation of space-based remote
sensing systems. The current regulatory system provides
applicants with very little transparency or appeal process.
Despite a statutory 120-day deadline for application
adjudication, some applications have not been adjudicated for
years. The current process harms the national security of the
United States by forcing companies and technologies overseas,
inhibiting insight into the capabilities and operations of
those departing companies, stifling innovation and the
commensurate workforce, jobs, and economic benefits, and
limiting the domestic capabilities that can be shared with
allies and utilized by combatant commanders.
U.S. policy and regulatory mechanisms need to be updated to
reflect the current state of technology, as well as evolving
market factors. Furthermore, the reformed process should
anticipate newer developments with an eye toward efficient and
objective regulation and incentive creation for U.S. industry.
Any perceived national security concerns associated with
commercial remote sensing needs to be put into the context of a
complex and interconnected world, and appreciate that
geospatial information has tremendous economic, societal,
environmental and governmental value. The commercial remote
sensing industry is now part of a larger, global geospatial
information community.
Under the legal and regulatory structure established by
H.R. 2809, the United States can continue to shape global
developments through technical innovation, modern business
processes, and by encouraging new applications. Industry would
be incentivized to pursue new concepts, which serve both as a
source of leverage and experimentation in a cutting-edge field.
Failure to adapt our mindset, especially given the global
nature of commercial remote sensing, will push U.S. remote
sensing providers offshore to more favorable regulatory
environments.
Definition of space-based remote sensing system
Under existing federal law, ``space-based remote sensing
system'' is not defined. Under existing federal regulations (15
C.F.R. 960.3), a remote sensing system is defined as:
``any device, instrument, or combination thereof, the
space-borne platform upon which it is carried, and any
related facilities capable of actively or passively
sensing the Earth's surface, including bodies of water,
from space by making use of the properties of the
electromagnetic waves emitted, reflected, or diffracted
by the sensed objects.''
The existing regulatory definition requires the system to
be capable of actively or passively sensing the Earth's
surface.
The Committee is aware that, in practice, the Department of
Commerce has regulated space-based remote sensing systems that,
while capable of remotely sensing the Earth's surface, are, in
fact, designed to remotely sense space objects in Earth orbit.
Furthermore, the Committee is aware that the application of
this existing regulatory definition, coupled with a lack of
statutory definition, is creating legal and regulatory
uncertainty as new and innovative private space-based remote
sensing systems are proposed.
The definition of space-based remote system adopted in H.R.
2809 seeks to address the lack of statutory definition, provide
certainty for remote sensing operators, and address national
security concerns. The Committee's intent is that the phrase
``designed to image the Earth'' is limited to instruments
designed to remotely sense the Earth's surface. The Committee's
intent is that the phrase ``capable of imaging a space object
in Earth orbit operated by the Federal Government'' is limited
to systems capable of remotely imaging a space object in Earth
orbit. It is also not intended to capture Federal Government
space objects that are in Earth orbit that are not operational,
for any reason, including because they are derelict or
abandoned.
The Committee recognizes that some space-based remote
sensing systems will not fall within either definition. The
Committee is aware of proposed commercial remote sensing
systems that are not designed to image the Earth and are
incapable of imaging U.S. Government objects in orbit. In those
instances, the intent of H.R. 2809 is to not require a
commercial remote sensing permit under chapter 802 of the bill,
but it is the Committee's intent to require space object
certification under chapter 801. This construct provides
certainty for applicants in the least burdensome manner,
conforms to U.S. obligations under the Outer Space Treaty, and
advances U.S. national security.
Not all Space-Based Remote Sensing Systems will be Space Objects
H.R. 2809 was designed to give maximum flexibility to
space-based remote sensing system permit applicants to decide
when, and if at all, space object certification is required
under chapter 801.
Some space-based remote sensing systems will also be space
objects for the purposes of chapter 801 certification
requirements. In this instance, the space-based remote sensing
system applicant can choose whether to file chapter 801 and
chapter 802 applications concurrently, or at different times,
subject to the requirements of having a certificate or permit
prior to operation.
However, some space-based remote sensing systems will not
be a space object, as defined in H.R. 2809, and therefore will
not be subject to a chapter 801 certification requirement. For
example, a space-based remote sensing system may be a hosted
payload on a space object. In this case, the space object that
is hosting will either be certified by the U.S. government to
operate (in accordance with U.S. international obligations
under the Outer Space Treaty) or a foreign government will be
responsible for the operation of the space object (as it is
either a foreign space object or a U.S. space object that
demonstrates pursuant to Sec. 80110 that another State Party to
the Treaty authorized the space object operations). In either
of these cases, the U.S. space-based remote sensing system will
only be subject to a chapter 802 permit requirement, as chapter
801 is intended to satisfy Article VI of the Outer Space Treaty
requirements that the appropriate State Party to the Treaty
authorize and supervise non-governmental space activities. The
Committee believes that when a remote sensing payload is
integrated into a free-flying space object, the international
legal obligations within the Outer Space Treaty are imbued upon
the State authorizing the operation of the space object, not
the State authorizing the remote sensing operations. The
Committee recognizes that in the future, novel circumstances
may arise in which space-based remote sensing systems are part
of unique space object systems that host, provide power, or do
various other services in support of the remote sensing system.
Nonetheless, the public policy H.R. 2809 adopts is that for the
purposes of the Outer Space Treaty, it is the authorizer of the
space object hosting the remote sensing system that is
responsible for Outer Space Treaty compliance, not the United
States authorizing the remote sensing system for the purposes
of national security.
Sec. 80201(d) De Minimis Exception
The intent of this provision is to grant the Secretary
discretionary authority to exclude certain types of space-based
remote sensing systems and lessen the regulatory burden on the
private sector and the Executive Branch. For example, star
trackers are intended to be considered ``ancillary to the
primary design purpose of the space object.'' Digital handheld
cameras are an example of an intended system that is ``too
trivial to require a determination under section 80202(c).''
The Committee directs the Secretary to promulgate
regulatory guidance to provide a clear explanation of the
criteria to be used by the Secretary to grant a de minimis
waiver.
Sec. 80201(f) Prohibition of Operation
H.R. 2809 grants a broader scope of jurisdiction for the
Secretary under chapter 802 as compared to chapter 801.
Under chapter 801, U.S. entities require a certification
prior to operation of a space object. This does not include
foreign subsidiaries and affiliates of a U.S. entity.
Furthermore, no foreign entities are allowed to receive a
chapter 801 certification. The rationale is that the Outer
Space Treaty requires the ``appropriate State Party'' to
authorize and supervise non-governmental space activities and
that the ``appropriate State Party'' is the State from which a
person is a citizen or in which a legal entity (e.g.
corporation) exists. If a State chooses to allow foreign wholly
owned subsidiaries in their jurisdiction and allows these legal
entities to operate space objects that is their choice.
However, such a choice carries consequences under the Outer
Space Treaty, and such a State that allows such activity is the
appropriate State Party to the Treaty to authorize and
supervise.
But under chapter 802, the United States equity is national
security, not Outer Space Treaty conformity. Therefore, the
scope of jurisdiction is broader than chapter 802 and states
that ``no person may, directly or through any subsidiary or
affiliate, operate a space-based remote sensing system without
a permit issued under H.R. 2809.'' This scope of jurisdiction
is the exact same language under existing law (51 U.S.C.
60122(a)).
Sec. 80202(a)(2)(D) Information Necessary to make a Determination
The overall national security policy of H.R. 2809 is that
U.S. national security is furthered, not when U.S. industry is
restricted, but when it leads the rest of the world. The
Committee recognizes that this policy needs to also take into
account the need of the U.S. national security community to be
empowered with information about planned space object and
space-based remote-sensing system operations so that the
national security community can plan accordingly for the
operation of such private and commercial systems. Of particular
importance is information about planned space-based remote
sensing operations. For this reason, Sec. 80202(a)(2)(D) allows
for a permit application to include ``any additional
information necessary to make a determination under subsection
(c) regarding a significant threat to national security.''
However, the Committee is aware that requests for information
can be abused and result in delay and obstructed permit
application adjudications. For this reason, such information
must be prescribed in advance by regulation.
The Committee is aware that it is not feasible for such
prescription to include system specific information for any
future permit applicant. The intent is for the information to
be prescribed within reasonable bounds so that applicants and
the Secretary (and as appropriate, other Department and Agency
heads consulted) have clear expectations of information
requirements for a permit application to be complete. Such
prescription must also be sufficiently clear to meet legal
requirements under the Administrative Procedures Act and
constitutional provisions of Due Process. This is not intended
to be an unbound authority to ask for any information from an
applicant. The Committee will also monitor the nature of such
information requests through oversight to ensure that this
authority is not abused.
Non-delegable determinations
H.R. 2809 prohibits certain determinations under chapter
801 and chapter 802 from being delegated by the Secretary of
Commerce. The intent is not to have the Secretary themselves
process paperwork or conduct day-to-day Office of Space
Commerce operations. The intent is that the Secretary, and only
the Secretary, is authorized to sign a determination. While the
Committee recognizes that such a signature will require
Department of Commerce staff to communicate with and provide
rationales for such a determination to the Secretary for the
Secretary's consideration, the Committee finds this is
appropriate given a public policy goal of H.R. 2809 is to
enhance regulatory accountability.
Clear and convincing evidence standard
H.R. 2809 used the term ``clear and convincing evidence.''
The intent of this terminology is to direct the Secretary to
provide evidence that supports a firm belief or conviction that
it is highly probable that the factual contentions of the
determination are true.
Significant threat to national security
Existing law provides the Secretary of Commerce with the
ability to condition or deny a space-based remote sensing
system license ``to preserve the national security of the
United States.'' This existing legal standard has proven to be
damaging to the U.S. industrial base and the long-term national
security interests of the United States. Without a rational and
reasonable standard to interpret this authority, there is no
limitation on how it can be applied.
H.R. 2809 adopts a different legal standard as defined in
Sec. 80202(c)(2), specifically ``significant threats to
national security.'' ``Significant threats to national
security'' is conditioned with the requirement of
``imminence.'' Imminence is intended to include threats that
will manifest almost immediately upon the beginning of proposed
operations or shortly thereafter.
Significant threats to national security is also
conditioned with the requirement that the threat ``cannot
practicably be mitigated though changes to Federal Government
activities or operations.'' The Committee is concerned that the
Federal Government is currently incentivized to delay
applications out of an abundance of caution. While there may be
no risk to national security, government officials are only
tasked with reviewing the negative impacts of a proposed
system, not the positive impact to U.S. national security, nor
the negative impacts to national security of stifling U.S.
leadership. Similarly, the U.S. has an obligation to adapt and
evolve its tactics, techniques, and procedures to account for
technological modernization. While U.S. national security is
compromised by a myopic approach to private sector
technological innovation, national security is strengthened by
a permissive environment that attracts technologies to the U.S.
and affords the federal government greater insight into
commercial remote sensing capabilities and operations.
The intent is that the Secretary, in consultation as the
Secretary considers necessary with the heads of other relevant
agencies, will assess proposed permit applicant operations in
light of Federal Government activities and operations as known
today and forecasted to be happening at the time of proposed
permit applicant operations. This assessment is for the
purposes of determining whether any identified significant
threats to U.S. national security can be practicably mitigated
by changes to Federal Government activities or operations.
The policy rationale is that the Executive Branch should
not force an applicant to change their operations or deny their
operation unless the Executive Branch took the time to see if
there were practical ways for the Federal Government to address
national security concerns. This is not meant to be an
unreasonable burden for the Federal Government. The Secretary,
in consultation as the Secretary considers necessary with the
heads of other relevant agencies, has the discretionary
authority to find there are not practical ways to mitigate.
H.R. 2809 does not define the scope of practicality and intends
for the Secretary to exercise discretionary authority in a
reasonable way to balance the interests of the Federal
Government with the need to mitigate.
Throughout our society, the government must adapt to an
evolving technological landscape. Space is no different. By
adjusting to private sector progress, rather than stifling
innovation, the United States will remain at the forefront of
this emerging field. This, in turn, will allow U.S. government
insight into cutting-edge capabilities and operations, as well
as the ability to respond and evolve to new challenges.
Commercially available capability
The Committee finds it is unreasonable and against the
national interests of the United States to condition or deny
space-based remote sensing system operations if there is
already a commercially available capability. Commercial
availability must take into account not just what is available
at the time of a permit application, but also what is
reasonably expected to be made available in the next three
years. This is important because of the nature of space
systems, which require significant lead-time to design,
manufacture, launch, and calibrate. This will allow the U.S. to
maintain leadership in the commercial remote sensing market,
rather than a perpetual laggard. U.S. national security is
compromised by adopting regulatory policies that stifle
innovation and force the nation to follow rather than lead. The
existing policy also limits U.S. insight into commercial remote
sensing systems that are forced overseas into more favorable
regulatory environments.
The Committee understands that the President currently
maintains a database of commercially available capabilities and
that it will not be a significant administrative burden for the
Executive Branch to use and update the existing database to
meet the requirements of Sec. 80202(e). Furthermore, the
Executive Branch routinely tracks the state of the commercial
space sector for many different purposes. This survey could
easily leverage those efforts.
Interagency consultation
The Committee is well aware of the need for the Secretary
to be able to consult with other Departments and Agencies as
the Secretary executes the duties to make determinations under
H.R. 2809. The Committee recognizes that absent any specific
statutory language, the Secretary would be imbued with organic
authority to communicate with and consult with other
Departments and Agencies. Nonetheless, H.R. 2809 posits in
statutory language a consultation mechanism for the Secretary
to consult with the heads of other relevant agencies as the
Secretary considers necessary.
While the Secretary shall consult, the decision as to
whether or not a consultation is necessary resides with the
Secretary, not with the relevant agency to be consulted.
Furthermore, the Secretary retains exclusive authority to
authorize, place conditions on, and supervise the operations of
space objects under chapter 801 and space-based remote sensing
system under chapter 802. The rationale is that only the
Secretary is legally responsible for authorizing and
supervising these operations. The decision to vest this
authority in a single Department is informed by Committee
oversight of the existing regulatory process for commercial
remote sensing, which imbues authority on three separate
agencies. This failed process led to delays in agency
adjudication, stifled innovation, and the departure of
companies overseas.
The Committee recognizes that the Secretary may need to
consult with the heads of other relevant agencies. The
Committee anticipates the Secretary, under the guidance of the
President, will establish via inter-agency memorandum or other
Executive Branch directives, clear procedures for the Secretary
to communicate with, and consult with, the heads of other
relevant agencies.
The rationale for this consultation policy is to prevent
inter-agency abuse of authorities and to prevent other agencies
from, in practice, exercising a de-facto regulatory authority.
The Committee is aware that in practice the legal directive
``to consult'' may in fact be implemented as a ``coordinate''
or a ``concurrence'' requirement, undermining the policy
rationale of the H.R. 2809. The Committee intends to conduct
diligent oversight of the implementation of this provision to
ensure that this does not occur.
Sec. 80202(b)(3) Interagency processes
The Committee recognizes that in order to carry out an
orderly adjudication of license applications within the 90 day
time frame provided, subject to a Presidential extension of an
additional 60 days, the Administration will need to organize an
interagency process that provides for timely elevation and
resolution of policy issues. The Committee anticipates that the
Secretary of Commerce, in consultation with the Secretary of
Defense and other departments and agencies as appropriate, will
develop interagency arrangements to carry out the authorities
granted to the Administration under this Act.
Sec. 80203(c) Update to permit
It is the intent of the Committee that a review warranted
under this section due to material change shall be subject to
the authority of the President to grant a 60 day extension
pursuant to Sec. 80202(b)(4)
Department of Transportation authority
H.R. 2809, section 8, is a continuation of long-standing
law and congressional intent with regards to the scope of DOT's
legal authority under 51 U.S.C. 50904(c). This intent, as
evidenced in the law and in Committee report language
accompanying the Commercial Space Launch Act of 1984, is that
DOT should not act contrary to a national security or foreign
policy (including international obligations) determination made
by another agency in the course of granting an approval for a
payload by such agency. In order to prevent confusion regarding
DOT's legal authority under 51 U.S.C. 50904(c), H.R. 2809,
section 8, codifies that no launch or reentry may be prevented
under this authority on the basis of national security, foreign
policy, or international obligations of the United States if
the payload has received a certification to operate as a space
object under chapter 801.
Federal Communications Commission authority
The Committee believes that since an effective regulatory
process already exists for communications satellites, a
duplicative process exercised by the Department of Commerce
would be unnecessary and unjustified. H.R. 2809 is not intended
to supersede the provisions of the Communications Act of 1934,
as amended, or its implementing regulations or executive
orders. H.R. 2809 does not grant FCC authority for the
regulation of space operations beyond the purview of its
existing exercised authority over space transmitting stations
licensed under the Communications Act of 1934. The Committee
will conduct diligent oversight to ensure that authority is
interpreted in a manner to expand the FCC's authority in space
beyond what Congress intended.
Sec. 80302 Safety consultation
The Committee recognizes that risk of collision among space
objects in a growing threat to the safety and sustainability of
certain Earth orbit regimes. The Committee, informed in part by
testimony provided by former Deputy Assistant Secretary of
Defense for Space Policy, Mr. Doug Levero (provided on March
8th, 2017), concludes that granting legal authority to the
Executive Branch to regulate the operation of space objects for
the purposes of collision avoidance is premature at this time
and would not be in the national interests. However, the
Committee believes that establishing a consultation forum
between space object operators, certified pursuant to H.R.
2809, and federal government space object operators, is
warranted at this time and will be useful to mitigate
substantial risks of collision between such operators.
Sec. 80302 grants the Secretary of Commerce the authority
to require U.S. entity participation in the consultation.
However, any outcome of the consultation is voluntary and
Sec. 80302 does not grant the Secretary of Commerce the
authority to regulate, or place conditions on, any activity for
which a certification or permit is required under H.R. 2809.
The Committee purposely chose to time this consultation to
occur after a certification under chapter 801 is issued.
Allowing this consultation to occur during the adjudication of
a certification application would create a chilling effect on
the applicant and undermine the voluntary nature of the
consultation. Similarly, it is not logical to require
consultation on proposed operations that have not yet received
authorization, unless such proposed operations are authorized
to be conditioned or denied on the basis of risks of
collisions.
The Committee emphasizes that Sec. 80302 consultations
carry the force of law and the Secretary can require a U.S.
entity to participate. This legal authority does not stop the
Executive Branch or U.S. entities from engaging in other
communications or consultations, on a voluntary basis, outside
the scope of Sec. 80302. If, after the Sec. 80302 consultation,
a U.S. entity voluntary chooses to change their proposed
operations, H.R. 2809 allows such changes to be made and if
material, to be subject to additional administrative review by
the Secretary of Commerce. The Committee is also aware of how
this authority could be abused, and will closely monitor its
use.
Sec. 80111 Protecting the interests of United States entity space
objects
The intent of this provision is to direct the President to
use, within reasonable means, the power of the Executive
Branch, particularly diplomatic and economic, to protect the
interests of United States entity space objects. This provision
is not intended to create new requirements for the President to
train, fund, or equip armed forces. It is also not intended to
bind the President's discretion to use force to protect U.S.
national interests.
Sec. 80111(3) is intended to direct the President to take a
leadership role in developing the normative understanding of
due regard under Article IX of the Outer Space Treaty and to
ensure U.S. entities operating in outer space are given such
due regard. Article IX of the Outer Space Treaty states that:
``[States Party] shall conduct all their activities in outer
space, including the moon and other celestial bodies, with due
regard to the corresponding interests of all other States
Parties to the Treaty.'' However, there is no definition and
little State practice to inform how this principle should be
developed and applied, particularly as it relates to
substantive legal obligations of other States Party to the
Outer Space Treaty. It is in the interest of the United States
to take a leadership role, along with U.S. private sector
stakeholders, in developing an understanding of due regard that
is in the interests of the United States, including its
commercial and private space actors.
Sec. 80309 Global commons
The Committee is aware that space is sometimes referred to
as a ``global commons.'' The Committee believes this is legally
inaccurate and undermines the national interests of the United
States. The Committee specifically drafted this language to
prohibit the application of extraneous statutes such as the
National Environmental Policy Act to outer space.
Need to address space situational awareness and related policy issues
The Committee is aware that there are outstanding policy
issues involving space situational awareness and the safety of
space operations on orbit. The Committee specifically chose not
to address these policy issues in this bill because the
Committee does not believe that sufficient due diligence has
been conducted to warrant addressing these policy issues in an
authorization and supervision mechanism. This does not preclude
the Committee addressing these policy issues in future
legislation.
Harmful interference to U.S. entity space objects
The Act recognizes that harmful interference is an issue
and addresses it in a number of ways. For foreign harmful
interference, the Act directs the President to protect U.S.
entities interests. The Act also provides that Federal courts
shall have jurisdiction over any civil action resulting from
operating a certificated space object. This allows U.S.
entities to seek judicial remedy, including civil suits, on the
basis of common law torts, to protect against and end harmful
interference. The Act directs the Secretary to report on the
certification of space objects. Part of this report assesses
how certification could be improved to enable U.S. leadership
in commercial space activities. This may include an examination
of how registration can be used to mitigate or prevent harmful
interference. FCC currently has legal authority to address
harmful interference caused by electromagnetic spectrum usage.
FCC's authority stands and is untouched by the Act.
However, the Committee is aware that as private space
activities develop, there may be a need to more comprehensively
address concerns of harmful interference. H.R. 2809 directs the
Private Space Activity Advisory Committee to report annually on
challenges the private sector is experiencing with harmful
interference to private sector activities in outer space. The
Committee intends to follow these reports carefully and address
such concerns as necessary in future legislation.
Claims of sovereignty
This title does not grant the Secretary the authority to
authorize U.S. entities to claim sovereignty over outer space
or any celestial bodies.
Federal court jurisdiction
Federal courts are granted original jurisdiction of any
civil action resulting from the operation of a space object for
which certification or permit is required under H.R. 2809.
Federal courts are not granted jurisdiction over outer space,
the Moon, or other celestial bodies.
Section-by-Section
Section 1. Short title; table of contents
The ``American Space Commerce Free Enterprise Act.''
Section 2. Findings; policy; purposes
This Act resolves and curtails authorities regarding
private exploration and use of outer space and streamlines
existing processes. This Act enhances compliance with
international obligations, removes regulatory barriers, and
improves U.S. competitiveness.
In addition, this Act updates and reforms the regulatory
regime governing space-based remote sensing space systems. The
existing regime, established under the 1992 Land Remote Sensing
Act, is outdated and broken. American industry is not able to
receive authorizations for space-based remote sensing space
systems in a timely fashion. This section establishes a
streamlined and improved process for both general space
operators and remote sensing operators. It also allows the Act
to address threats to U.S. national security that may arise due
to the operations of space objects that include remote sensing
systems.
Section 3. Certification to operate space objects
This section amends Title 51 to include authorization and
supervision of nongovernmental space activities. Certification
authority is granted to the Secretary of Commerce one year
after enactment to issue certifications for the operations of a
U.S. space object.
The Act provides certification conditions in legislation.
Industry will know exactly what is required to satisfy a
certification application. Supervision of certified activities
is satisfied by filing updates on material changes.
The Act assures conformity with the Outer Space Treaty,
providing that the U.S. is the appropriate State Party to
authorize and continually supervise U.S. entity space object
operations, unless another State Party to the Treaty has
authorized such operations. U.S. obligations under the Outer
Space Treaty are responsibilities of the U.S. government, not
its private citizens.
The Secretary of Commerce and the Office of Space Commerce
(DOC/OSC) have the responsibility to certify and permit
operations, not DOT.
The Act recognizes that space debris and on-orbit collision
are concerns and established a number of practical mechanisms
to address space debris and on-orbit collision. The Act
requires space debris operations to be conducted under a debris
mitigation and disposal plan. This plan is to take into account
Inter-Agency Space Debris Coordination Committee (IADC) and
U.S. space debris mitigation guidelines. For avoiding
collisions on-orbit, the Act establishes a consultation for
certificated space operators and federal operators to address
risks of collisions on-orbit. The Assistant Secretary for Space
Commerce is also directed to facilitate and promote the
development of best practices to address substantial risks to
the physical safety of certificated space operators and federal
operators.
This Act only affects DOT authority to license launch and
reentry activities in the payload review of authorized U.S.
entity payloads. The Act provides that a space object whose
operations are certificated by DOC/OSC is not subject to a
payload review for national security, foreign policy, or
international obligations by DOT. DOT retains the authority to
conduct a payload review for public health and safety and the
safety of property.
FCC authority to license telecommunication satellites
remains unaffected. This section provides an exception
specifically to protect existing telecommunication satellite
operators licensed by FCC and to allow FCC to maintain its
existing authority. Telecommunication satellite operators will
not need to register with the Office of Space Commerce.
Under this section, the Secretary of Commerce is directed
to establish a Private Space Activity Advisory Committee of 15
appointed members. This Committee will oversee nongovernmental
space activities, certification processes, and promote private
sector investment and development in operating space objects.
An annual report is due from the Committee regarding their
duties and recommendations. The Committee will be terminated 10
years after establishment.
Existing payloads approved under a DOT license are
grandfathered into the new system. Existing DOT licenses and
associated payload approvals remain in force. Payloads approved
under an existing license have the right to apply for an
authorization under the new registration and permitting process
at DOC/OSC.
The Act recognizes that harmful interference is an issue
and addresses it in a number of ways. The Act directs the
President to protect U.S. entities interests and provides that
Federal courts shall have jurisdiction over any civil action
resulting from operating a certificated space object. This
allows U.S. entities to seek judicial remedy, including civil
suits, on the basis of common law torts, to protect against
harmful interference. FCC currently has legal authority to
address harmful interference caused by electromagnetic spectrum
usage. FCC's authority stands and is untouched by the Act.
Section 4. Permitting of space-based remote sensing systems
The Act improves U.S. international competitiveness by
reforming burdensome and inefficient space-based remote sensing
regulatory system.
The Act provides a clear and narrow definition of space-
based remote sensing space systems, creates a presumption of
approval, provides a streamlined permitting process, refines
authority of DOC/OSC to place conditions for national security,
and requires adjudication of permit applications within 90
days.
The Act allows identified national security risks to be
addressed by conditioning space-based remote sensing
operations. However, the Act requires the Federal government to
first attempt to mitigate these national security risks before
placing any such conditions on private actors.
This section amends Title 51 to permit space-based remote
sensing systems, no later than one year after enactment.
Existing licensees at NOAA (National Oceanic and
Atmospheric Administration) are grandfathered into the new
system. Existing NOAA licenses remain in force, which includes
any associated conditions. Existing licensees have the right to
re-apply for an authorization under the new certification and
permitting process at DOC/OSC.
A report is due 180 days after enactment detailing all
applications received, and all permits given, denied, and
overdue. This section also requires the Secretary to establish
an Advisory Committee on Commercial Remote Sensing. This
Committee will provide information, advice, and recommendations
for U.S. commercial space-based remote sensing activities and
industry. The Committee is required to submit a report
including their information, analysis, findings, and
recommendations. The Committee will be terminated 10 years
after establishment.
Section 5. Administrative provisions related to certification and
permitting
This section amends Title 51 to add administrative
provisions related to certification and permitting. This
includes restricting civil penalties to $10,000 each day of
violation, and to $500,000 in total for noncompliance. This
section also outlines an appeals process for certification of
permits and establishes regulatory authority. Outer space is
not to be considered a global commons.
For avoiding collisions on-orbit, the Act establishes a
consultation for registered space operators and federal
operators to address substantial risks of collisions on-orbit.
The Secretary is granted enforcement authority. There is no
cost for a certification or permit. Existing regulatory
authority from DOT and FCC for determinations of international
obligations are granted to DOC/OSC.
The Secretary shall undertake appropriate consultations
with other Federal agencies in carrying out the duties of the
Secretary under this Act.
The Secretary of Commerce will have one year to implement
the law and promulgate appropriate regulations.
The Act authorizes to be appropriated $5 million to the
Office of Space Commerce for fiscal year 2018.
Section 6. Technical and conforming amendments
This section amends Title 51 to accommodate for the Act's
changes.
Section 7. Office of space commerce
This section amends Section 50702 of Title 51 to create an
Assistant Secretary of Space Commerce to authorize and
supervise the operations of U.S. nongovernmental entities in
outer space.
The Office of Space Commerce, which will be located within
the Office of the Secretary of Commerce, is the administrative
unit responsible for certificating space operations and
permitting space-based remote sensing systems. This section
consolidates existing offices, thereby creating operational
efficiencies.
Section 8. Restriction on preventing launches and reentries of
certified space objects
This section amends Section 50904(c) of Title 51 to remove
existing DOT authority to regulate space activities of U.S.
entities for national security, foreign policy, or
international obligation purposes for any space object
authorized under this Act, except in the case of U.S. launch
public safety and property protection authority.
Section 9. Report on registration of space objects
This Act directs the Secretary of Commerce to report to
Congress within one year on how the registration of space
objects under the U.S. domestic registry or under the United
Nations registry could be improved to benefit the U.S.,
including enabling U.S. leadership in commercial space
activities.
Section 10. Comptroller general report
The Act recognizes FAA AST's growing importance to the
commercial space industry. In that light, the Act directs the
Government Accountability Office to submit a report on removing
AST from the FAA and elevating it to the jurisdiction of the
Secretary of Transportation. A report is due 180 days after
enactment on removing the Office of Commercial Space
Transportation from under the jurisdiction of the FAA and
reestablishing it under the jurisdiction of the Secretary of
Transportation.
Section 11. Radiofrequency mapping report
This section requires a report due 180 days after enactment
on space-based radiofrequency mapping.
Explanation of Amendments
An amendment offered by Mr. Smith made technical
corrections to the bill. Among these, the amendment extended
the time the Secretary of Commerce has to adjudicate
certificate and permit applications from ``60'' to ``90'' days.
The amendment also expresses that the Secretary of Commerce
``shall'' consult, as the Secretary considers necessary, with
the heads of other relevant agencies. The amendment was
adopted.
An amendment offered by Mr. Bridenstine added a section
requiring the Government Accountability office to report on the
costs and benefits of elevating FAA's Office of Commercial
Space Transportation within DOT. The amendment was adopted.
An amendment offered by Mr. Perlmutter required the Private
Sector Advisory Committee to identify any challenges the U.S.
private sector experiences with access to adequate, predictable
and reliable radio frequency spectrum. The amendment was
adopted.
Committee Consideration
On June 8, 2017, the Committee met in open session and
ordered reported favorably the bill, H.R. 2809, as amended, by
voice vote, a quorum being present.
Application of Law to the Legislative Branch
Section 102(b)(3) of Public Law 104-1 requires a
description of the application of this bill to the legislative
branch where the bill relates to the terms and conditions of
employment or access to public services and accommodations.
This bill assures conformity with international obligations of
the United States, pursuant to Article VI of the Outer Space
Treaty. As such this bill does not relate to employment or
access to public services and accommodations.
Statement of Oversight Findings and Recommendations of the Committee
In compliance with clause 3(c)(1) of rule XIII and clause
(2)(b)(1) of rule X of the Rules of the House of
Representatives, the Committee's oversight findings and
recommendations are reflected in the descriptive portions of
this report.
Statement of General Performance Goals and Objectives
H.R. 2809, the American Space Commerce Free Enterprise Act,
assures conformity with international obligations of the United
States, pursuant to Article VI of the Outer Space Treaty.
Duplication of Federal Programs
No provision of H.R. 2809 establishes or reauthorizes a
program of the Federal Government known to be duplicative of
another Federal program, a program that was included in any
report from the Government Accountability Office to Congress
pursuant to section 21 of Public Law 111-139, or a program
related to a program identified in the most recent Catalog of
Federal Domestic Assistance.
Disclosure of Directed Rule Makings
H.R. 2809 assures conformity with international obligations
of the United States, pursuant to Article VI of Outer Space
Treaty. It does so by establishing an authorization and
supervision certification authority at the Department of
Commerce that can condition or deny space operations to prevent
violations of United States international obligations under the
Outer Space Treaty.
Further, H.R. 2809 reforms provisions of the 1992 Land
Remote Sensing Act governing the regulation of space-based
remote sensing systems. The current regulatory system provides
applicants with very little transparency or appeal process.
Despite a statutory 120-day deadline for application
adjudication, some applications have been not been adjudicated
for years. The current process harms the national security of
the United States by forcing companies and technologies
overseas, inhibiting insight into the capabilities and
operations of those departing companies, stifling innovation
and the commensurate workforce, jobs, and economic benefits,
and limiting the domestic capabilities that can be shared with
allies, and utilized by combatant commanders.
Federal Advisory Committee Act
The Committee finds that the legislation does not establish
or authorize the establishment of an advisory committee within
the definition of 5 U.S.C. App., Section 5(b).
Unfunded Mandate Statement
Section 423 of the Congressional Budget and Impoundment
Control Act (as amended by Section 101(a)(2) of the Unfunded
Mandate Reform Act, P.L. 104-4) requires a statement as to
whether the provisions of the reported include unfunded
mandates. In compliance with this requirement the Committee has
received a letter from the Congressional Budget Office included
herein.
Earmark Identification
H.R. 2809 does not include any congressional earmarks,
limited tax benefits, or limited tariff benefits as defined in
clause 9 of rule XXI.
Committee Estimate
Clause 3(d)(2) of rule XIII of the Rules of the House of
Representatives requires an estimate and a comparison by the
Committee of the costs that would be incurred in carrying out
H.R. 2809. However, clause 3(d)(3)(B) of that rule provides
that this requirement does not apply when the Committee has
included in its report a timely submitted cost estimate of the
bill prepared by the Director of the Congressional Budget
Office under section 402 of the Congressional Budget Act.
Budget Authority and Congressional Budget Office Cost Estimate
With respect to the requirements of clause 3(c)(2) of rule
XIII of the Rules of the House of Representatives and section
308(a) of the Congressional Budget Act of 1974 and with respect
to requirements of clause (3)(c)(3) of rule XIII of the Rules
of the House of Representatives and section 402 of the
Congressional Budget Act of 1974, the Committee has received
the following cost estimate for H.R. 2809 from the Director of
Congressional Budget Office:
U.S. Congress,
Congressional Budget Office,
Washington, DC, July 7, 2017.
Hon. Lamar Smith,
Chairman, Committee on Science, Space, and Technology,
House of Representatives, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for H.R. 2809, the American
Space Commerce Free Enterprise Act of 2017.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Janani
Shankaran.
Sincerely,
Keith Hall,
Director.
Enclosure.
H.R. 2809--American Space Commerce Free Enterprise Act of 2017
H.R. 2809 would expand the authorities of the Office of
Space Commerce (OSC) within the Department of Commerce (DOC) to
include supervision of commercial space activity. The private
sector is increasingly investing in and developing spacecraft,
satellites, and other technologies for nongovernmental
exploration of outer space. H.R. 2809 would establish a
certification process for the private sector to operate those
objects in outer space. The bill also would eliminate the
Office of Commercial Remote Sensing Regulatory Affairs (CRSRA)
within the National Oceanic and Atmospheric Administration and
transfer some of its responsibilities to the OSC. H.R. 2809
would authorize the appropriation of $5 million in 2018 for the
OSC to undertake those activities.
Assuming appropriation of the authorized amounts, CBO
estimates that implementing H.R. 2809 would cost $5 million
over the 2018-2019 period. In fiscal year 2017, the CRSRA and
the OSC each received an appropriation of about $1 million.
Under current law, no specific sums are authorized to be
appropriated to the CRSRA after 2017.
The bill also would direct the President to maintain a
database of commercially available capabilities for space-based
remote sensing, for example, satellites; require DOC to
undertake activities related to international treaty
compliance; and have the Government Accountability Office
submit a report to the Congress about the Office of Commercial
Space Transportation. Based on the costs to undertake similar
activities, CBO estimates that implementing those provisions
would cost less than $500,000 each year; such spending would be
subject to the availability of appropriated funds.
Enacting the bill would affect direct spending and
revenues; therefore, pay-as-you-go procedures apply. CBO
expects that some CRSRA employees could retire earlier than
they otherwise would, which would increase direct spending over
the 2017-2027 period. However, CBO estimates that those
increases would not be significant. The bill also would repeal
certain penalties, which are recorded in the budget as
revenues, and authorize new ones. On net, CBO estimates that
those changes would not significantly affect revenues.
CBO estimates that enacting H.R. 2809 would not increase
net direct spending or on-budget deficits in any of the four
consecutive 10-year periods beginning in 2028.
H.R. 2809 would impose intergovernmental and private-sector
mandates, as defined in the Unfunded Mandates Reform Act
(UMRA). The bill would require entities that launch and operate
spacecraft, satellites, or other objects in outer space to
submit information about their planned launch operations, as
well as a plan to mitigate space debris, to DOC when applying
for certification to operate those objects. The requirements
would affect both private space companies, such as Moon Express
and SpaceX, as well as public entities, such as universities
conducting research. After receiving certification, those
entities also would be required to inform DOC about any
material changes to the space object or the planned operations.
In addition, the bill would require entities that apply for a
permit to operate a space-based remote sensing system to
provide specific information about the project to DOC. Based on
information from companies in the space industry about the
costs of complying with current regulations, CBO estimates that
the total cost of complying with the mandates would fall well
below the annual thresholds for intergovernmental and private-
sector mandates established in UMRA ($78 million and $156
million in 2017, respectively, adjusted annually for
inflation).
The CBO staff contacts for this estimate are Janani
Shankaran (for federal costs), Jon Sperl (for intergovernmental
mandates), and Paige Piper/Bach (for private-sector mandates).
The estimate was approved by H. Samuel Papenfuss, Deputy
Assistant Director for Budget Analysis.
Changes in Existing Law Made by the Bill, as Reported
In compliance with clause 3(e) of rule XIII of the Rules of
the House of Representatives, changes in existing law made by
the bill, as reported, are shown as follows (existing law
proposed to be omitted is enclosed in black brackets, new
matter is printed in italic, and existing law in which no
change is proposed is shown in roman):
TITLE 51, UNITED STATES CODE
Subtitle I--General
Chap Sec.
Definitions..................................................10101
* * * * * * *
Subtitle V--Programs Targeting Commercial Opportunities
* * * * * * *
Space resource commercial exploration and utilization.......51301]
Space Resource Commercial Exploration and Utilization........51301
* * * * * * *
Subtitle VII--Access to Space
Use of space launch system or alternatives..................70101]
Use of Space Launch System or Alternatives...................70101
* * * * * * *
Subtitle VIII--Authorization and Supervision of Nongovernmental Space
Activities
Certification to Operate Space Objects.......................80101
Permitting of Space-Based Remote Sensing Systems.............80201
80301dministrative Provisions Related to Certification and Permitting.
* * * * * * *
SUBTITLE II--GENERAL PROGRAM AND POLICY PROVISIONS
* * * * * * *
CHAPTER 203--RESPONSIBILITIES AND VISION
* * * * * * *
Sec. 20302. Vision for space exploration
(a) In General.--The Administrator shall establish a program
to develop a sustained human presence in cis-lunar space or on
the Moon, including a robust precursor program, to promote
exploration, science, commerce, and United States preeminence
in space, and as a stepping-stone to future exploration of Mars
and other destinations. The Administrator is further authorized
to develop and conduct appropriate international collaborations
in pursuit of these goals.
(b) Future Exploration of Mars.--The Administrator shall
manage human space flight programs, including the Space Launch
System and Orion, to enable humans to explore Mars and other
destinations by defining a series of sustainable steps and
conducting mission planning, research, and technology
development on a timetable that is technically and fiscally
possible, consistent with section 70504.
(c) Definitions.--In this section:
(1) Orion.--The term ``Orion'' means the multipurpose
crew vehicle described under section 303 of the
National Aeronautics and Space Administration
Authorization Act of 2010 (42 U.S.C. 18323).
(2) Space launch system.--The term ``Space Launch
System'' [means has the meaning] has the meaning given
the term in section 3 of the National Aeronautics and
Space Administration Authorization Act of 2010 (42
U.S.C. 18302).
* * * * * * *
SUBTITLE V--PROGRAMS TARGETING COMMERCIAL OPPORTUNITIES
* * * * * * *
CHAPTER 507--OFFICE OF SPACE COMMERCE
* * * * * * *
Sec. 50702. Establishment
(a) In General.--There is established within the Department
of Commerce an Office of Space Commerce, which shall be located
in the principal physical location of the Office of the
Secretary of Commerce.
(b) Director.--The Office shall be headed by a Director, who
shall be [a senior executive and shall be compensated at a
level in the Senior Executive Service under section 5382 of
title 5 as determined by the Secretary of Commerce] appointed
by the President and confirmed by the Senate. The Director
shall be the Assistant Secretary of Commerce for Space Commerce
and shall report directly to the Secretary of Commerce.
(c) Functions of Office.--The Office shall be the principal
unit for the coordination of space-related issues, programs,
and initiatives within the Department of Commerce, including--
(1) to foster the conditions for the economic growth
and technological advancement of the United States
space commerce industry;
(2) to coordinate space commerce policy issues and
actions within the Department of Commerce;
(3) to represent the Department of Commerce in the
development of United States policies and in
negotiations with foreign countries to promote United
States space commerce;
(4) to promote the advancement of United States
geospatial technologies related to space commerce, in
cooperation with relevant interagency working groups;
[and]
(5) to provide support to Federal Government
organizations working on Space-Based Positioning
Navigation, and Timing policy, including the National
Coordination Office for [Space-Based Position] Space-
Based Positioning, Navigation, and Timing[.];
(6) to authorize and supervise the operations of
United States nongovernmental entities in outer space,
pursuant to chapter 801 of this title;
(7) to authorize and supervise the operations of
space-based remote sensing systems pursuant to chapter
802 of this title; and
(8) to facilitate and promote the development of best
practices among operators of space objects and space-
based remote sensing systems under this subtitle to
address substantial risks to the physical safety of
Federal Government space objects, including the risk of
on-orbit collisions.
(d) Duties of Director.--The primary responsibilities of the
Director in carrying out the functions of the Office shall
include--
(1) promoting commercial provider investment in space
activities by collecting, analyzing, and disseminating
information on space markets, and conducting workshops
and seminars to increase awareness of commercial space
opportunities;
(2) assisting United States commercial providers in
the efforts of those providers to conduct business with
the United States Government;
(3) acting as an industry advocate within the
executive branch of the Federal Government to ensure
that the Federal Government meets the space-related
requirements of the Federal Government, to the fullest
extent feasible, using commercially available space
goods and services;
(4) ensuring that the United States Government does
not compete with United States commercial providers in
the provision of space hardware and services otherwise
available from United States commercial providers;
(5) promoting the export of space-related goods and
services;
(6) representing the Department of Commerce in the
development of United States policies and in
negotiations with foreign countries to ensure free and
fair trade internationally in the area of space
commerce; and
(7) seeking the removal of legal, policy, and
institutional impediments to space commerce.
* * * * * * *
CHAPTER 509--COMMERCIAL SPACE LAUNCH ACTIVITIES
* * * * * * *
Sec. 50904. Restrictions on launches, operations, and reentries
(a) Requirement.--A license issued or transferred under this
chapter, or a permit, is required for the following:
(1) for a person to launch a launch vehicle or to
operate a launch site or reentry site, or to reenter a
reentry vehicle, in the United States.
(2) for a citizen of the United States (as defined in
section 50902(1)(A) or (B) of this title) to launch a
launch vehicle or to operate a launch site or reentry
site, or to reenter a reentry vehicle, outside the
United States.
(3) for a citizen of the United States (as defined in
section 50902(1)(C) of this title) to launch a launch
vehicle or to operate a launch site or reentry site, or
to reenter a reentry vehicle, outside the United States
and outside the territory of a foreign country unless
there is an agreement between the United States
Government and the government of the foreign country
providing that the government of the foreign country
has jurisdiction over the launch or operation or
reentry.
(4) for a citizen of the United States (as defined in
section 50902(1)(C) of this title) to launch a launch
vehicle or to operate a launch site or reentry site, or
to reenter a reentry vehicle, in the territory of a
foreign country if there is an agreement between the
United States Government and the government of the
foreign country providing that the United States
Government has jurisdiction over the launch or
operation or reentry.
Notwithstanding this subsection, a permit shall not authorize a
person to operate a launch site or reentry site.
(b) Compliance With Payload Requirements.--The holder of a
license or permit under this chapter may launch or reenter a
payload only if the payload complies with all requirements of
the laws of the United States related to launching or
reentering a payload.
(c) Preventing Launches and Reentries.--The Secretary of
Transportation shall establish whether all required licenses,
authorizations, and permits required for a payload have been
obtained. If no license, authorization, or permit is required,
the Secretary may prevent the launch or reentry if the
Secretary decides the launch or reentry would jeopardize the
public health and safety, safety of property, or national
security or foreign policy interest of the United States. No
launch or reentry may be prevented under this authority on the
basis of national security, foreign policy, or international
obligations of the United States, including under the covered
treaties on outer space (as defined in section 80101) if the
payload has received a certification to operate as a space
object under chapter 801.
(d) Single License or Permit.--The Secretary of
Transportation shall ensure that only 1 license or permit is
required from the Department of Transportation to conduct
activities involving crew, government astronauts, or space
flight participants, including launch and reentry, for which a
license or permit is required under this chapter. The Secretary
shall ensure that all Department of Transportation regulations
relevant to the licensed or permitted activity are satisfied.
* * * * * * *
SUBTITLE VI--EARTH OBSERVATIONS
* * * * * * *
CHAPTER 601--LAND REMOTE SENSING POLICY
SUBCHAPTER I--GENERAL
Sec.
60101. Definitions.
* * * * * * *
[SUBCHAPTER SUBCHAPTER III--LICENSING OF PRIVATE REMOTE SENSING SPACE
SYSTEMS
[60121. General licensing authority.
[60122. Conditions for operation.
[60123. Administrative authority of Secretary.
[60124. Regulatory authority of Secretary.
[60125. Agency activities.
[60126. Annual reports.]
SUBCHAPTER V--GENERAL PROVISIONS
* * * * * * *
[60147. Consultation.]
* * * * * * *
[SUBCHAPTER III--LICENSING OF PRIVATE REMOTE SENSING SPACE SYSTEMS
[Sec. 60121. General licensing authority
[(a) Licensing Authority of Secretary.--
[(1) In general.--In consultation with other
appropriate United States Government agencies, the
Secretary is authorized to license private sector
parties to operate private remote sensing space systems
for such period as the Secretary may specify and in
accordance with the provisions of this subchapter.
[(2) Limitation with respect to system used for other
purposes.--In the case of a private space system that
is used for remote sensing and other purposes, the
authority of the Secretary under this subchapter shall
be limited only to the remote sensing operations of
such space system.
[(b) Compliance With Law, Regulations, International
Obligations, and National Security.--
[(1) In general.--No license shall be granted by the
Secretary unless the Secretary determines in writing
that the applicant will comply with the requirements of
this chapter, any regulations issued pursuant to this
chapter, and any applicable international obligations
and national security concerns of the United States.
[(2) List of requirements for complete application.--
The Secretary shall publish in the Federal Register a
complete and specific list of all information required
to comprise a complete application for a license under
this subchapter. An application shall be considered
complete when the applicant has provided all
information required by the list most recently
published in the Federal Register before the date the
application was first submitted. Unless the Secretary
has, within 30 days after receipt of an application,
notified the applicant of information necessary to
complete an application, the Secretary may not deny the
application on the basis of the absence of any such
information.
[(c) Deadline for Action on Application.--The Secretary shall
review any application and make a determination thereon within
120 days of the receipt of such application. If final action
has not occurred within such time, the Secretary shall inform
the applicant of any pending issues and of actions required to
resolve them.
[(d) Improper Basis for Denial.--The Secretary shall not deny
such license in order to protect any existing licensee from
competition.
[(e) Requirement To Provide Unenhanced Data.--
[(1) Designation of data.--The Secretary, in
consultation with other appropriate United States
Government agencies and pursuant to paragraph (2),
shall designate in a license issued pursuant to this
subchapter any unenhanced data required to be provided
by the licensee under section 60122(b)(3) of this
title.
[(2) Preliminary determination.--The Secretary shall
make a designation under paragraph (1) after
determining that--
[(A) such data are generated by a system for
which all or a substantial part of the
development, fabrication, launch, or operations
costs have been or will be directly funded by
the United States Government; or
[(B) it is in the interest of the United
States to require such data to be provided by
the licensee consistent with section
60122(b)(3) of this title, after considering
the impact on the licensee and the importance
of promoting widespread access to remote
sensing data from United States and foreign
systems.
[(3) Consistency with contract or other
arrangement.--A designation made by the Secretary under
paragraph (1) shall not be inconsistent with any
contract or other arrangement entered into between a
United States Government agency and the licensee.
[Sec. 60122. Conditions for operation
[(a) License Required for Operation.--No person that is
subject to the jurisdiction or control of the United States
may, directly or through any subsidiary or affiliate, operate
any private remote sensing space system without a license
pursuant to section 60121 of this title.
[(b) Licensing Requirements.--Any license issued pursuant to
this subchapter shall specify that the licensee shall comply
with all of the requirements of this chapter and shall--
[(1) operate the system in such manner as to preserve
the national security of the United States and to
observe the international obligations of the United
States in accordance with section 60146 of this title;
[(2) make available to the government of any country
(including the United States) unenhanced data collected
by the system concerning the territory under the
jurisdiction of such government as soon as such data
are available and on reasonable terms and conditions;
[(3) make unenhanced data designated by the Secretary
in the license pursuant to section 60121(e) of this
title available in accordance with section 60141 of
this title;
[(4) upon termination of operations under the
license, make disposition of any satellites in space in
a manner satisfactory to the President;
[(5) furnish the Secretary with complete orbit and
data collection characteristics of the system, and
inform the Secretary immediately of any deviation; and
[(6) notify the Secretary of any significant or
substantial agreement the licensee intends to enter
with a foreign nation, entity, or consortium involving
foreign nations or entities.
[(c) Additional Licensing Requirements for Landsat 6
Contractor.--In addition to the requirements of subsection (b),
any license issued pursuant to this subchapter to the Landsat 6
contractor shall specify that the Landsat 6 contractor shall--
[(1) notify the Secretary of any value added
activities (as defined by the Secretary by regulation)
that will be conducted by the Landsat 6 contractor or
by a subsidiary or affiliate; and
[(2) if such activities are to be conducted, provide
the Secretary with a plan for compliance with section
60141 of this title.
[Sec. 60123. Administrative authority of Secretary
[(a) Functions.--In order to carry out the responsibilities
specified in this subchapter, the Secretary may--
[(1) grant, condition, or transfer licenses under
this chapter;
[(2) seek an order of injunction or similar judicial
determination from a district court of the United
States with personal jurisdiction over the licensee to
terminate, modify, or suspend licenses under this
subchapter and to terminate licensed operations on an
immediate basis, if the Secretary determines that the
licensee has substantially failed to comply with any
provisions of this chapter, with any terms, conditions,
or restrictions of such license, or with any
international obligations or national security concerns
of the United States;
[(3) provide penalties for noncompliance with the
requirements of licenses or regulations issued under
this subchapter, including civil penalties not to
exceed $10,000 (each day of operation in violation of
such licenses or regulations constituting a separate
violation);
[(4) compromise, modify, or remit any such civil
penalty;
[(5) issue subpoenas for any materials, documents, or
records, or for the attendance and testimony of
witnesses for the purpose of conducting a hearing under
this section;
[(6) seize any object, record, or report pursuant to
a warrant from a magistrate based on a showing of
probable cause to believe that such object, record, or
report was used, is being used, or is likely to be used
in violation of this chapter or the requirements of a
license or regulation issued thereunder; and
[(7) make investigations and inquiries and administer
to or take from any person an oath, affirmation, or
affidavit concerning any matter relating to the
enforcement of this chapter.
[(b) Review of Agency Action.--Any applicant or licensee that
makes a timely request for review of an adverse action pursuant
to paragraph (1), (3), (5), or (6) of subsection (a) shall be
entitled to adjudication by the Secretary on the record after
an opportunity for any agency hearing with respect to such
adverse action. Any final action by the Secretary under this
subsection shall be subject to judicial review under chapter 7
of title 5.
[Sec. 60124. Regulatory authority of Secretary
[The Secretary may issue regulations to carry out this
subchapter. Such regulations shall be promulgated only after
public notice and comment in accordance with the provisions of
section 553 of title 5.
[Sec. 60125. Agency activities
[(a) License Application and Issuance.--A private sector
party may apply for a license to operate a private remote
sensing space system which utilizes, on a space-available
basis, a civilian United States Government satellite or vehicle
as a platform for such system. The Secretary, pursuant to this
subchapter, may license such system if it meets all conditions
of this subchapter and--
[(1) the system operator agrees to reimburse the
Government in a timely manner for all related costs
incurred with respect to such utilization, including a
reasonable and proportionate share of fixed, platform,
data transmission, and launch costs; and
[(2) such utilization would not interfere with or
otherwise compromise intended civilian Government
missions, as determined by the agency responsible for
such civilian platform.
[(b) Assistance.--The Secretary may offer assistance to
private sector parties in finding appropriate opportunities for
such utilization.
[(c) Agreements.--To the extent provided in advance by
appropriation Acts, any United States Government agency may
enter into agreements for such utilization if such agreements
are consistent with such agency's mission and statutory
authority, and if such remote sensing space system is licensed
by the Secretary before commencing operation.
[(d) Applicability.--This section does not apply to
activities carried out under subchapter IV.
[(e) Effect on FCC Authority.--Nothing in this subchapter
shall affect the authority of the Federal Communications
Commission pursuant to the Communications Act of 1934 (47
U.S.C. 151 et seq.).
[Sec. 60126. Annual reports
[(a) In General.--The Secretary shall submit a report to the
Committee on Commerce, Science, and Transportation of the
Senate and the Committee on Science, Space, and Technology of
the House of Representatives not later than 180 days after the
date of enactment of the U.S. Commercial Space Launch
Competitiveness Act, and annually thereafter, on--
[(1) the Secretary's implementation of section 60121,
including--
[(A) a list of all applications received in
the previous calendar year;
[(B) a list of all applications that resulted
in a license under section 60121;
[(C) a list of all applications denied and an
explanation of why each application was denied,
including any information relevant to the
interagency adjudication process of a licensing
request;
[(D) a list of all applications that required
additional information; and
[(E) a list of all applications whose
disposition exceeded the 120 day deadline
established in section 60121(c), the total days
overdue for each application that exceeded such
deadline, and an explanation for the delay;
[(2) all notifications and information provided to
the Secretary under section 60122; and
[(3) a description of all actions taken by the
Secretary under the administrative authority granted by
paragraphs (4), (5), and (6) of section 60123(a).
[(b) Classified Annexes.--Each report under subsection (a)
may include classified annexes as necessary to protect the
disclosure of sensitive or classified information.
[(c) Sunset.--The reporting requirement under this section
terminates effective September 30, 2020.]
* * * * * * *
SUBCHAPTER V--GENERAL PROVISIONS
* * * * * * *
[Sec. 60147. Consultation
[(a) Consultation With Secretary of Defense.--The Secretary
and the Landsat Program Management shall consult with the
Secretary of Defense on all matters under this chapter
affecting national security. The Secretary of Defense shall be
responsible for determining those conditions, consistent with
this chapter, necessary to meet national security concerns of
the United States and for notifying the Secretary and the
Landsat Program Management promptly of such conditions.
[(b) Consultation With Secretary of State.--
[(1) In general.--The Secretary and the Landsat
Program Management shall consult with the Secretary of
State on all matters under this chapter affecting
international obligations. The Secretary of State shall
be responsible for determining those conditions,
consistent with this chapter, necessary to meet
international obligations and policies of the United
States and for notifying promptly the Secretary and the
Landsat Program Management of such conditions.
[(2) International aid.--Appropriate United States
Government agencies are authorized and encouraged to
provide remote sensing data, technology, and training
to developing nations as a component of programs of
international aid.
[(3) Reporting discriminatory distribution.--The
Secretary of State shall promptly report to the
Secretary and Landsat Program Management any instances
outside the United States of discriminatory
distribution of Landsat data.
[(c) Status Report.--The Landsat Program Management shall, as
often as necessary, provide to Congress complete and updated
information about the status of ongoing operations of the
Landsat system, including timely notification of decisions made
with respect to the Landsat system in order to meet national
security concerns and international obligations and policies of
the United States Government.
[(d) Reimbursements.--If, as a result of technical
modifications imposed on a licensee under subchapter III on the
basis of national security concerns, the Secretary, in
consultation with the Secretary of Defense or with other
Federal agencies, determines that additional costs will be
incurred by the licensee, or that past development costs
(including the cost of capital) will not be recovered by the
licensee, the Secretary may require the agency or agencies
requesting such technical modifications to reimburse the
licensee for such additional or development costs, but not for
anticipated profits. Reimbursements may cover costs associated
with required changes in system performance, but not costs
ordinarily associated with doing business abroad.]
* * * * * * *
SUBTITLE VII--ACCESS TO SPACE
CHAPTER 711--NEAR-EARTH OBJECTS
* * * * * * *
Sec. 71102. Requests for information
The Administrator shall issue requests for information on--
(1) a low-cost space mission with the purpose of
rendezvousing with, attaching a tracking device to, and
characterizing the Apophis asteroid; and
(2) a medium-sized space mission with the purpose of
detecting near-Earth objects equal to or greater than
140 meters in diameter.
* * * * * * *
Subtitle VIII--AUTHORIZATION AND SUPERVISION OF NONGOVERNMENTAL SPACE
ACTIVITIES
CHAPTER 801--CERTIFICATION TO OPERATE SPACE OBJECTS
Sec.
80101. Definitions.
80102. Certification authority.
80103. Certification application and requirements.
80104. Mitigation of space debris.
80105. Continuing certification requirements.
80106. Certification transfer.
80107. Certification expiration and termination.
80108. Existing license or pending application for launch or reentry.
80109. Private Space Activity Advisory Committee.
80110. Exemptions.
80111. Protecting the interests of United States entity space objects.
Sec. 80101. Definitions
In this subtitle:
(1) Agency.--The term ``agency'' has the meaning
given the term Executive agency in section 105 of title
5.
(2) Agreement on the rescue of astronauts and the
return of space objects.--The term ``Agreement on the
Rescue of Astronauts and the Return of Space Objects''
means the Agreement on the Rescue of Astronauts, the
Return of Astronauts and the Return of Objects Launched
into Outer Space (signed at Washington, Moscow, and
London on April 22, 1968, ratified by the United States
on December 3, 1968; 19 UST 7570).
(3) Convention on registration of space objects.--The
term ``Convention on Registration of Space Objects''
means the Convention on Registration of Objects
Launched into Outer Space (signed at New York on
January 14, 1975, ratified by the United States on
September 15, 1976; 28 UST 695).
(4) Covered treaties on outer space.--The term
``covered treaties on outer space'' means--
(A) the Outer Space Treaty;
(B) the Agreement on the Rescue of Astronauts
and the Return of Space Objects;
(C) the Convention on Registration of Space
Objects; and
(D) the Liability Convention.
(5) Liability convention.--The term ``Liability
Convention'' means the Convention on the International
Liability for Damage Caused by Space Objects (signed at
Washington, Moscow, and London on March 29, 1972,
ratified by the United States on October 9, 1973; 24
UST 2389).
(6) National of the united states.--The term
``national of the United States'' has the meaning given
such term in section 101(a) of the Immigration and
Nationality Act (8 U.S.C. 1101(a)).
(7) Outer space treaty.--The term ``Outer Space
Treaty'' means the Treaty on Principles Governing the
Activities of States in the Exploration and Use of
Outer Space, including the Moon and Other Celestial
Bodies (signed at Washington, Moscow, and London on
January 27, 1967, ratified by the United States on
October 10, 1967; 18 UST 2410).
(8) Secretary.--The term ``Secretary'' means, except
as otherwise provided in this subtitle, the Secretary
of Commerce, acting through the Office of Space
Commerce.
(9) Space-based remote sensing system.--The term
``space-based remote sensing system'' means a space
object in Earth orbit that is--
(A) designed to image the Earth; or
(B) capable of imaging a space object in
Earth orbit operated by the Federal Government.
(10) Space debris mitigation.--The term ``space
debris mitigation'' means efforts to--
(A) prevent on-orbit break-ups;
(B) remove spacecraft that have reached the
end of their mission operation from useful
densely populated orbit regions; and
(C) limit the amount of debris released
during normal operations of a space object.
(11) Space object.--
(A) In general.--The term ``space object''
means--
(i) a human-made object located in
outer space, including on the Moon and
other celestial bodies, with or without
human occupants, that was launched from
Earth, such as a satellite or a
spacecraft, including component parts
of the object; and
(ii) all items carried on such object
that are intended for use in outer
space outside of, and independent of,
the operation of such object.
(B) Inclusion.--Such term includes any human-
made object that is--
(i) manufactured or assembled in
outer space; and
(ii) intended for operations in outer
space outside of, and independent of,
the operations of such object in which
the manufacturing or assembly occurred.
(C) Exclusions.--Such term does not include--
(i) an article on board a space
object that is only intended for use
inside the space object;
(ii) an article manufactured or
processed in outer space that is a
material; or
(iii) an article intended for use
outside of a space object as part of
the certified operations of the space
object.
(12) State.--The term ``State'' means each of the
several States of the United States, the District of
Columbia, the Commonwealth of Puerto Rico, the United
States Virgin Islands, Guam, American Samoa, the
Commonwealth of the Northern Mariana Islands, and any
other commonwealth, territory, or possession of the
United States.
(13) United states.--The term ``United States'' means
the States, collectively.
(14) United states entity.--The term ``United States
entity'' means--
(A) an individual who is a national of the
United States; or
(B) a nongovernmental entity organized or
existing under, and subject to, the laws of the
United States or a State.
Sec. 80102. Certification authority
(a) In General.--Not later than 1 year after the date of
enactment of the American Space Commerce Free Enterprise Act of
2017, the Secretary shall begin issuing certifications for the
operation of a space object to any United States entity who
submits an application for a certification in satisfaction of
the requirements of this chapter.
(b) Consultation.--The Secretary shall, as the Secretary
considers necessary, consult with the heads of other relevant
agencies in carrying out the requirements of this chapter,
pursuant to section 80311.
(c) Certification Required for Operation.--Beginning on the
date that is 1 year after the date of enactment of the American
Space Commerce Free Enterprise Act of 2017, a United States
entity may not operate a space object unless the entity holds a
certification issued under this chapter for the operation of
such object or the entity holds a valid payload approval for
launch or reentry under section 50904 as part of a license
issued under chapter 509, and that satisfies the requirements
of section 80108(a).
(d) Foreign Entities Prohibited.--The Secretary may not issue
a certification under this chapter to any person who is not a
United States entity.
(e) Coverage of Certification.--The Secretary shall, to the
maximum extent practicable, require only 1 certification under
this chapter for a United States entity to--
(1) conduct multiple operations carried out using a
single space object;
(2) operate multiple space objects that carry out
substantially similar operations; or
(3) use multiple space objects to carry out a single
space operation.
Sec. 80103. Certification application and requirements
(a) Application Process.--
(1) In general.--To be eligible for a certification
or transfer of a certification to operate a space
object under this chapter, a United States entity shall
submit an application to the Secretary as provided in
paragraph (2). Such application shall include, for each
required item or attestation, sufficient evidence to
demonstrate each fact or assertion.
(2) Contents.--An application described in paragraph
(1) shall include only the following information, with
respect to each space object and the operations
proposed to be certified:
(A) The name, address, and contact
information of one or more nationals of the
United States designated by the applicant as
responsible for the operation of the space
object.
(B) An affirmation, and a document of proof,
that the applicant is a United States entity.
(C) If available at the time of submission of
the application, the planned date and location
of the launch of the space object, including
the identity of the launch provider.
(D) The general physical form and composition
of the space object.
(E) A description of the proposed operations
of the space object that includes--
(i) when and where the space object
will operate; and
(ii) when and where the operation of
the space object will terminate.
(F) A description of how the space object
will be operated and disposed of in a manner to
mitigate the generation of space debris.
(G) Information about third-party liability
insurance obtained, if any, by the applicant
for operations of the space object, including
the amount and coverage of such liability
insurance.
(H) Whether the space object will include a
space-based remote sensing system.
(3) Attestations.--An application described in
paragraph (1) shall contain an attestation by the
applicant of each the following:
(A) The space object is not a nuclear weapon
or a weapon of mass destruction.
(B) The space object will not carry a nuclear
weapon or weapon of mass destruction.
(C) The space object will not be operated or
used for testing of any weapon on a celestial
body.
(D) All information in the application and
supporting documents is true, complete, and
accurate.
(b) Review of Application.--
(1) Verification of information and attestations.--
Not later than 90 days after receipt of an application
under this section, the Secretary shall verify that--
(A) the application is complete, including
any required supporting documents;
(B) the application does not contain any
clear indication of fraud or falsification; and
(C) the application contains each attestation
required under subsection (a)(3).
(2) Determination.--Not later than 90 days after
receipt of an application under this section--
(A) if the Secretary verifies that the
applicant has met the application requirements
described in paragraph (1), the Secretary shall
approve the application and issue a
certification to the applicant with or without
conditions on the proposed operation of the
space object pursuant to subsection (c)(1)(A);
or
(B) if the Secretary cannot verify that the
applicant has met the application requirements
described in paragraph (1) or if the Secretary
determines it is necessary to deny the
application pursuant to subsection (c)(1)(B),
the Secretary--
(i) shall issue a denial of the
application signed by the Secretary (a
duty that may not be delegated,
including to the Office of Space
Commerce); and
(ii) shall, not later than 10 days
after the decision to deny the
certification--
(I) provide the applicant
with a written notification
containing a clearly
articulated rationale for the
denial that provides, to the
maximum extent practicable,
guidance to the applicant as to
how such rationale for denial
could be addressed in a
subsequent application; and
(II) notify the Committee on
Commerce, Science, and
Transportation of the Senate
and the Committee on Science,
Space, and Technology of the
House of Representatives of
such rationale.
(3) Automatic approval.--If the Secretary has not
approved or denied the application before the deadline
under paragraph (2), the certification shall be
approved without condition. The Secretary may not allow
tolling of the 90-day period under such paragraph.
(4) Improper basis for denial.--The Secretary may not
deny an application for a certification under this
section in order to protect an existing certification
holder from competition.
(5) Subsequent review.--The Secretary may not
prejudice a new application for the proposed operations
denied pursuant to paragraph (2)(B) if such new
application contains remedies addressing the rationale
for such denial.
(c) Compliance With the Outer Space Treaty.--
(1) In general.--If the Secretary determines, with
clear and convincing evidence, that the proposed
operation of a space object under an application for a
certification under this chapter is a violation of an
international obligation of the United States
pertaining to a nongovernmental entity of the United
States under the Outer Space Treaty--
(A) the Secretary may condition the proposed
operation covered by the certification only to
the extent necessary to prevent a violation of
such international obligation; or
(B) if the Secretary determines that there is
no practicable way to condition such
certification to prevent such a violation, the
Secretary may deny the application.
(2) Limitation for determinations.--A determination
under paragraph (1) shall be limited as follows:
(A) The Federal Government shall interpret
and fulfill its international obligations under
the Outer Space Treaty in a manner that
minimizes regulations and limitations on the
freedom of United States nongovernmental
entities to explore and use space.
(B) The Federal Government shall interpret
and fulfill its international obligations under
the Outer Space Treaty in a manner that
promotes free enterprise in outer space.
(C) The Federal Government shall not presume
all obligations of the United States under the
Outer Space Treaty are obligations to be
imputed upon United States nongovernmental
entities.
(D) Guidelines promulgated by the Committee
on Space Research may not be considered
international obligations of the United States.
(3) Presumptions.--In making a determination under
paragraph (1), the Secretary shall presume, absent
clear and convincing evidence to the contrary, that--
(A) any attestation made by an applicant
pursuant to subsection (a)(3) is sufficient to
meet the international obligations of the
United States pertaining to nongovernmental
entities of the United States under the Outer
Space Treaty addressed by such attestation; and
(B) reasonably commercially available efforts
are sufficient to be in conformity with the
international obligations of the United States
pertaining to nongovernmental entities of the
United States under the Outer Space Treaty.
(4) Prohibition on retroactive conditions.--No other
modifications may be made, or additional conditions
placed, on a certification after the date on which the
certification is issued (except to account for a
material change as provided in section 80105(c) or the
removal of a condition pursuant to subsection (d)).
(5) Nondelegable.--The responsibilities of the
Secretary under this subsection may not be delegated,
including to the Office of Space Commerce.
(d) Authority to Remove Conditions.--The Secretary, as
determined appropriate, may remove a condition placed on a
certification pursuant to subsection (c).
Sec. 80104. Mitigation of space debris
(a) Plan Submission.--To be eligible for a certification
under this chapter, each application shall include a space
debris mitigation plan for the space object. Such plan--
(1) shall take into account best practice guidelines
promulgated by the United States and the Interagency
Debris Coordinating Committee; and
(2) may take into account that a space object may end
certified operations and be stored in a safe manner
until such time as the space object is permanently
disposed of or certified for further operations.
(b) Implementation.--To the maximum extent practicable, a
holder of a certification under this chapter shall notify the
Secretary not later than 30 days before beginning to implement
the disposal phase of a space debris mitigation plan described
in subsection (a). Such certification holder shall, not later
than 30 days after completing implementation of such phase,
update the Secretary of the results of any space debris
mitigation efforts.
Sec. 80105. Continuing certification requirements
(a) Notification Requirement.--A certification holder shall,
in a timely manner, notify the Secretary if--
(1) a certified space object has terminated
operations; or
(2) a catastrophic event has occurred to a certified
space object, such as the unplanned destruction of a
space object.
(b) Material Change.--The Secretary shall require
certification holders to inform the Secretary of--
(1) any material changes to the space object or the
planned operations of the space object prior to launch;
and
(2) any material anomalies or departures from the
planned operations during the course of operations.
(c) Update to Certification.--Not later than 14 days after
the date of receipt of information regarding a material change
pursuant to subsection (b), the Secretary shall make a
determination of whether such material change is substantial
enough to warrant additional review under section 80103(b). Not
later than 90 days after a determination that such review is
warranted, the Secretary shall complete a similar such review
process for such material change as is required for a
certification applicant under such section.
Sec. 80106. Certification transfer
(a) In General.--Subject to subsections (b) and (c), the
Secretary shall provide for the transfer of a certification
under this chapter from the certification holder to another
United States entity to continue the operations allowed under
such certification.
(b) Transfer Request Requirements.--To be eligible for a
transfer under subsection (a), the certification holder shall
submit to the Secretary a request that includes--
(1) any identifying information regarding the
proposed transferee, including accompanying supporting
documents, that would be required under an initial
application under section 80103; and
(2) each attestation required under section
80103(a)(3), including accompanying supporting
documents, completed by the proposed transferee.
(c) Determination.--Not later than 90 days after a
certification holder submits a request under subsection (b),
the Secretary shall complete a similar review process for the
request for transfer as required for a certification applicant
under section 80103(b).
Sec. 80107. Certification expiration and termination
(a) Certification Expiration.--A certification issued under
this chapter shall expire on the earlier of--
(1) the date on which all operations approved under
such certification cease, including carrying out a
space debris mitigation plan of any space object
approved under such certification;
(2) the date on which all space objects approved
under the certification no longer exist; or
(3) the date that is 5 years after the date on which
the certification was approved, if no operations
approved under the certification have commenced by such
date.
(b) Certification Termination.--
(1) In general.--The Secretary shall terminate a
certification under this chapter if an applicant or
certification holder is convicted of a violation of
section 1001 of title 18 related to the certification
process under this chapter.
(2) Eligibility.--A certification holder whose
certification is terminated under this subsection shall
be ineligible to apply for or receive a certification
under this chapter.
(3) Space debris mitigation plan.--Upon termination
of a certification under paragraph (1), the Secretary
may require the certification holder to carry out the
space debris mitigation plan submitted by the
certification holder under section 80104.
Sec. 80108. Existing license or pending application for launch or
reentry
(a) Continuation of Existing License.--Any United States
entity for whom a payload has been approved (and not subject to
an exemption under section 80110) on or before the effective
date of this section for launch or reentry under section 50904
as part of a license issued under chapter 509 may--
(1) elect to be immediately considered certified for
operation under this chapter on such effective date, in
which case all terms and conditions applicable to the
payload as approved for launch or reentry as part of a
license issued under chapter 509 shall apply for the
duration of the operation of the payload; or
(2) apply for a certification under this chapter for
the operation of the licensed activities and may
continue to operate pursuant to such license until such
time as such certification is issued.
(b) Rescinding or Transfer of Pending License.--A payload of
a United States entity that, on the effective date of this
section, is pending approval under section 50904 as part of a
launch or reentry license issued under chapter 509 may be, at
the election of the applicant for payload approval--
(1) rescinded without prejudice; or
(2) transferred to the Office of Space Commerce and
deemed to be a pending application for certification
under this chapter.
(c) Effective Date.--This section shall take effect on the
date that is 1 year after the date of enactment of the American
Space Commerce Free Enterprise Act of 2017.
Sec. 80109. Private Space Activity Advisory Committee
(a) Establishment.--The Secretary shall establish a Private
Space Activity Advisory Committee (in this section referred to
as the ``Committee'') consisting of 15 members who shall be
appointed by the Secretary.
(b) Chair.--The Committee shall designate one member as the
chair of the Committee.
(c) Membership.--
(1) Limitation.--Members of the Committee may not be
Federal Government employees or officials.
(2) Travel expenses.--Members of the Committee shall
receive travel expenses, including per diem in lieu of
subsistence, in accordance with the applicable
provisions under subchapter I of chapter 57 of title 5.
(3) Qualifications.--Members of the Committee shall
include a variety of space policy, engineering,
technical, science, legal, and finance professionals.
Not less than 3 members shall have significant
experience working in the commercial space industry.
(d) Terms.--Each member of the Committee shall serve for a
term of 4 years and may not serve as a member for the 2-year
period following the date of completion of each such term.
(e) Duties.--The duties of the Committee shall be to--
(1) analyze the status and recent developments of
nongovernmental space activities;
(2) analyze the effectiveness and efficiency of the
implementation of the certification process under this
chapter;
(3) provide recommendations to the Secretary and
Congress on how the United States can facilitate and
promote a robust and innovative private sector that is
investing in, developing, and operating space objects;
(4) identify any challenges the United States private
sector is experiencing--
(A) with the authorization and supervision of
the operation of space objects under this
chapter;
(B) more generally, with international
obligations of the United States relevant to
private sector activities in outer space;
(C) with harmful interference to private
sector activities in outer space; and
(D) with access to adequate, predictable, and
reliable radio frequency spectrum;
(5) review existing best practices for United States
entities to avoid the harmful contamination of the Moon
and other celestial bodies;
(6) review existing best practices for United States
entities to avoid adverse changes in the environment of
the Earth resulting from the introduction of
extraterrestrial matter;
(7) provide information, advice, and recommendations
on matters relating to United States private sector
activities in outer space; and
(8) provide information, advice, and recommendations
on matters related to the authority of the Secretary
under this chapter or to private sector space
activities authorized pursuant to this chapter that the
Committee determines necessary.
(f) Annual Report.--The Committee shall submit to Congress,
the President, and the Secretary an annual report that includes
the information, analysis, findings, and recommendations
described in subsection (e).
(g) Sunset.--The Committee shall terminate on the date that
is 10 years after the date on which the Committee is
established.
Sec. 80110. Exemptions
(a) In General.--A certification is not required under this
chapter for any of the following operations:
(1) Space object activities authorized by another
country that is a party to the Outer Space Treaty.
(2) Launch or reentry vehicle operations licensed by
the Department of Transportation under chapter 509.
(3) Space stations licensed by the Federal
Communications Commission under the Communications Act
of 1934 (47 U.S.C. 151 et seq.).
(b) Rule of Construction.--Nothing in this section shall be
construed to exempt any entity from the requirement to obtain a
permit to operate a space-based remote sensing system under
chapter 802.
Sec. 80111. Protecting the interests of United States entity space
objects
The President shall--
(1) protect the interests of United States entity
exploration and use of outer space, including
commercial activity and the exploitation of space
resources, from acts of foreign aggression and foreign
harmful interference;
(2) protect ownership rights of United States entity
space objects and obtained space resources; and
(3) ensure that United States entities operating in
outer space are given due regard.
CHAPTER 802--PERMITTING OF SPACE-BASED REMOTE SENSING SYSTEMS
Sec.
80201. Permitting authority.
80202. Application for permit.
80203. Continuing permitting requirements.
80204. Permit transfer.
80205. Agency activities.
80206. Annual reports.
80207. Advisory Committee on Commercial Remote Sensing.
80208. Continuation of existing license or pending application.
80209. Commercial Remote Sensing Regulatory Affairs Office.
Sec. 80201. Permitting authority
(a) In General.--Not later than 1 year after the date of
enactment of the American Space Commerce Free Enterprise Act of
2017, the Secretary is authorized to permit persons to operate
space-based remote sensing systems.
(b) Consultation.--The Secretary shall, as the Secretary
considers necessary, consult with the heads of other relevant
agencies in carrying out the requirements of this chapter,
pursuant to section 80311.
(c) Limitation With Respect to System Used for Other
Purposes.--In the case of a space object that is used for
remote sensing and other purposes, the authority of the
Secretary under this chapter shall be limited to the remote
sensing operations of such space object.
(d) De Minimis Exception.--
(1) Waiver.--The Secretary may waive the requirement
for a permit for a space-based remote sensing system
that the Secretary determines is--
(A) ancillary to the primary design purpose
of the space object; or
(B) too trivial to require a determination
under section 80202(c) relating to national
security.
(2) Guidance.--Not later than 1 year after the date
of enactment of this subsection, the Secretary shall
issue guidance providing a clear explanation of the
criteria used by the Secretary to grant a de minimis
waiver under paragraph (1)(B) for a space-based remote
sensing system that is too trivial to require a
determination under section 80202(c).
(e) Coverage of Permit.--The Secretary shall, to the maximum
extent practicable, ensure that only one permit is required
under this chapter to--
(1) conduct multiple operations carried out using a
space-based remote sensing system;
(2) operate multiple space-based remote sensing
systems that carry out substantially similar
operations; or
(3) use multiple space-based remote sensing systems
to carry out a single remote sensing operation.
(f) Prohibition on Operation.--Not later than 1 year after
the date of enactment of the American Space Commerce Free
Enterprise Act of 2017, no person may, directly or through any
subsidiary or affiliate, operate any space-based remote sensing
system without a permit issued under this chapter.
(g) Responsible Party.--In any case in which the applicant
for a permit under this chapter is not a United States entity,
the applicant shall identify a United States entity that
consents to be responsible for the permitted operation of the
space-based remote sensing system.
(h) Operation of Space-Based Remote Sensing System.--For
purposes of this chapter, the operation of a space-based remote
sensing system--
(1) begins when the system--
(A) is located in outer space; and
(B) can meet the minimum threshold and
objective capabilities for the system's stated
need; and
(2) shall not cover the acts of distribution, sale,
or transfer of data, information, or services to
persons, foreign or domestic, including any such acts
taken pursuant to an agreement with such persons.
Sec. 80202. Application for permit
(a) Application Process.--
(1) In general.--To receive a permit to operate a
space-based remote sensing system under this chapter, a
person shall submit an application to the Secretary as
provided in paragraph (2). Such application shall
include, for each required item, sufficient evidence to
demonstrate each fact or assertion.
(2) Contents.--An application described in paragraph
(1) shall include only the following information, with
respect to each space-based remote sensing system and
the operations proposed to be permitted:
(A) The name, address, and contact
information of one or more United States entity
identified by the applicant, pursuant to
section 80201(g), as responsible for the
operation of the space-based remote sensing
system.
(B) If available at the time of submission of
the application, the planned date and location
of the launch of the applicable space object,
including the identity of the launch provider.
(C) The general physical form and composition
of the space-based remote sensing system.
(D) A description of the proposed operations
of the space-based remote sensing system that
includes--
(i) when and where the space-based
remote sensing system will operate;
(ii) when and where the operation of
the space-based remote sensing system
will terminate; and
(iii) any additional information
necessary to make a determination under
subsection (c) regarding a significant
threat to national security, as
prescribed in advance in regulation by
the Secretary.
(E) A description of how the space-based
remote sensing system will be operated and
disposed of in a manner to mitigate the
generation of space debris.
(F) Information about third-party liability
insurance obtained, if any, by the applicant
for operations of the space-based remote
sensing system, including the amount and
coverage of such liability insurance.
(b) Review of Application.--
(1) Verifications.--Not later than 90 days after
receipt of an application under this section, the
Secretary shall verify that--
(A) the application is complete pursuant to
subsection (a); and
(B) the application does not contain any
clear indication of fraud or falsification.
(2) Determination.--Not later than 90 days after
receipt of an application under this section--
(A) if the Secretary verifies that the
applicant has met the application requirements
described in paragraph (1), the Secretary shall
approve the application and issue a permit to
the applicant with or without conditions on the
proposed operation of the space-based remote
sensing system pursuant to subsection
(c)(1)(A); or
(B) if the Secretary cannot verify that the
applicant has met the application requirements
described in paragraph (1) or if the Secretary
makes a determination to deny the application
under subsection (c)(1)(B), the Secretary--
(i) shall issue a denial of the
application signed by the Secretary (a
duty that may not be delegated,
including to the Office of Space
Commerce); and
(ii) shall, not later than 10 days
after the decision to deny the
application--
(I) provide the applicant
with a written notification
containing a clearly
articulated rationale for the
denial that, to the maximum
extent practicable--
(aa) provides
guidance to the
applicant as to how the
articulated rationale
for denial could be
addressed in a
subsequent application;
and
(bb) includes all
classified information
included in such
rationale for which the
applicant has the
required security
clearance; and
(II) submit a notification of
the denial to the Committee on
Commerce, Science, and
Transportation of the Senate
and the Committee on Science,
Space, and Technology of the
House of Representatives that--
(aa) contains the
clearly articulated
rationale for the
denial; and
(bb) in the case of a
denial pursuant to a
national security
determination under
subsection (c)--
(AA) includes
an explanation
of how, and
clear and
convincing
evidence that,
to the maximum
extent
practicable,
the Federal
Government took
steps to
mitigate a
significant
threat to the
national
security of the
United States
posed by the
operation of
the applicant's
space-based
remote sensing
system by
changing
Federal
Government
activities and
operations; and
(BB) may
contain
classified
information.
(3) Automatic approval.--If the Secretary has not
approved or denied the application before the deadline
under paragraph (2), the application shall be approved
without condition. The Secretary may not allow tolling
of the 90-day period under such paragraph.
(4) Improper basis for denial.--The Secretary may not
deny an application for a permit under this section in
order to protect an existing permit holder from
competition.
(5) Subsequent review.--The Secretary may not
prejudice a new application for the proposed operations
denied pursuant to paragraph (2)(B) if such new
application contains remedies addressing the rationale
for such denial.
(c) Addressing National Security Threat.--
(1) In general.--If the Secretary determines, with
clear and convincing evidence, that the proposed
operation of a space-based remote sensing system under
an application for a permit under this chapter poses a
significant threat to the national security of the
United States as provided in paragraph (2)--
(A) the Secretary may condition the proposed
operation covered by the permit only to the
extent necessary to address such threat; or
(B) if the Secretary determines that there is
no practicable way to condition such permit to
address such threat, the Secretary may deny the
application.
(2) Significant threat to national security.--For
purposes of a determination under paragraph (1), a
significant threat to the national security of the
United States is a threat--
(A) that is imminent; and
(B) that cannot practicably be mitigated
through changes to Federal Government
activities or operations.
(3) Reasonably commercially available efforts.--To
the maximum extent practicable, the Secretary shall
only place a condition on a permit that is achievable
using reasonably commercially available efforts.
(4) Notification.--Not later than 10 days after the
decision to condition the proposed operation covered by
a permit pursuant to this subsection, the Secretary
shall--
(A) provide the applicant with a written
notification containing a clearly articulated
rationale for the condition that, to the
maximum extent practicable--
(i) provides guidance to the
applicant as to how the articulated
rationale for condition could be
addressed in a subsequent application;
and
(ii) includes all classified
information included in such rationale
for which the applicant has the
required security clearance; and
(B) submit a notification of the condition to
the Committee on Commerce, Science, and
Transportation of the Senate and the Committee
on Science, Space, and Technology of the House
of Representatives that--
(i) contains the clearly articulated
rationale for the condition;
(ii) includes an explanation of how,
and clear and convincing evidence that,
to the maximum extent practicable, the
Federal Government took steps to
mitigate a significant threat to the
national security of the United States
posed by the operation of the
applicant's space-based remote sensing
system by changing Federal Government
activities and operations; and
(iii) may contain classified
information.
(5) Prohibition on retroactive conditions.--No other
modifications may be made, or additional conditions
placed, on a permit after the date on which the permit
is issued except to account for a material change as
provided in section 80203(c).
(6) Nondelegable.--The responsibilities of the
Secretary under this subsection may not be delegated,
including to the Office of Space Commerce.
(d) Limitations on Conditions.--
(1) Same or similar capability.--No operational
condition under subsection (c) may be placed on a
space-based remote sensing system that has the same or
substantially similar space-based remote sensing
capabilities as another system permitted under this
chapter with no such condition.
(2) Conditions that exceed permitted conditions.--The
Secretary may not place a condition on a permit for a
space-based remote sensing system that exceeds a
condition placed on an existing permitted system that
has the same or substantially similar capabilities.
(e) Commercially Available Capability.--
(1) Exception.--The Secretary may not deny an
application for, or place a condition on, a permit for
the operation of a space-based remote sensing system
for which the same or substantially similar
capabilities, derived data, products, or services are
already commercially available or reasonably expected
to be made available in the next 3 years in the
international or domestic marketplace. The exception in
the previous sentence applies regardless of whether the
marketplace products and services originate from the
operation of aircraft, unmanned aircraft, or other
platforms or technical means or are assimilated from a
variety of data sources.
(2) Clear and convincing evidence.--Each denial of an
application for, and each condition placed on, a permit
for the operation of a space-based remote sensing
system, shall include an explanation of, and clear and
convincing evidence that, the exception under paragraph
(1) does not apply with respect to the proposed
permitted operations of such system.
(3) Database.--The President shall--
(A) maintain a database of commercially
available capabilities described in paragraph
(1);
(B) update such database not less than once
every 3 months; and
(C) submit to the Committee on Commerce,
Science, and Transportation of the Senate and
the Committee on Science, Space, and Technology
of the House of Representatives a report
containing the contents of the database upon
each update required under subparagraph (B).
(4) Applicant submissions.--An applicant for, or
holder of, a permit for the operation of a space-based
remote sensing system may submit to the Secretary
evidence of, or information regarding, a commercially
available capability described in paragraph (1) for
consideration for inclusion in the database.
(5) Nonapplication of condition.--In any case in
which the Secretary determines that the exception under
paragraph (1) applies with respect to a permit for the
operation of a space-based remote sensing system for
which the Secretary has placed a condition under
subsection (c), such condition shall no longer apply
with respect to such permitted operations.
(f) Authority To Remove Conditions.--Nothing in this section
shall be construed to prohibit the Secretary from removing a
condition placed on a permit pursuant to subsection (c).
Sec. 80203. Continuing permitting requirements
(a) Notification Requirement.--A permit holder shall, in a
timely manner, notify the Secretary if--
(1) a permitted space-based remote sensing system has
terminated operations; or
(2) a catastrophic event has occurred to a space-
based remote sensing system, such as the unplanned
destruction of such system.
(b) Material Change.--The Secretary shall require permit
holders to inform the Secretary of--
(1) any material changes to the space-based remote
sensing system or the planned operations of such system
prior to launch; and
(2) any material anomalies or departures from the
planned operations during the course of operations.
(c) Update to Permit.--Not later than 14 days after the date
of receipt of information regarding a material change pursuant
to subsection (b), the Secretary shall make a determination of
whether such material change is substantial enough to warrant
additional review under section 80202(b). Not later than 90
days after a determination that such review is warranted, the
Secretary shall complete a similar such review process for such
material change as is required for a permit applicant under
such section.
Sec. 80204. Permit transfer
(a) In General.--Subject to subsections (b) and (c), the
Secretary shall provide for the transfer of a permit under this
chapter from the permit holder to another person to continue
the operations allowed under such permit.
(b) Transfer Request Requirements.--To be eligible for a
transfer under subsection (a), the permit holder shall submit
to the Secretary a request that includes any identifying
information regarding the transferee that would be required
under an initial application under section 80202.
(c) Determination.--Not later than 14 days after the date on
which the Secretary receives a transfer request pursuant to
subsection (b), the Secretary shall make a determination of
whether such material change is substantial enough to warrant
additional review under section 80202(b). Not later than 90
days after a determination that such review is warranted, the
Secretary shall complete a similar such review process for such
transferee as is required for a permit applicant under such
section.
(d) Material Change.--Any transfer of a permit under this
chapter constitutes a material change under section 80203(b).
Sec. 80205. Agency activities
(a) Utilization of Federal Government Vehicle.--A person may
apply for a permit to operate a space-based remote sensing
system that utilizes, on a space-available basis, a civilian
Federal Government satellite or vehicle as a platform for such
system. The Secretary, pursuant to this chapter, may permit
such system if it meets all conditions of this chapter.
(b) Assistance.--The Secretary may offer assistance to
persons in finding appropriate opportunities for the
utilization described in subsection (a).
(c) Agreements.--To the extent provided in advance by
appropriation Acts, an agency may enter into an agreement for
the utilization described in subsection (a) if such agreement
is consistent with the agency's mission and statutory
authority, and if the space-based remote sensing system is
issued a permit by the Secretary under this chapter before
commencing operation.
Sec. 80206. Annual reports
(a) In General.--The Secretary shall submit a report to the
Committee on Commerce, Science, and Transportation of the
Senate and the Committee on Science, Space, and Technology of
the House of Representatives not later than 180 days after the
date of enactment of the American Space Commerce Free
Enterprise Act of 2017, and annually thereafter, on--
(1) the Secretary's implementation of this chapter,
including--
(A) a list of all applications received in
the previous calendar year;
(B) a list of all applications that resulted
in a permit;
(C) a list of all applications denied and an
explanation of why each application was denied,
including any information relevant to the
adjudication process of a request for a permit;
(D) a list of all applications that required
additional information; and
(E) a list of all applications whose
disposition exceeded the 90-day deadline, the
total days overdue for each application that
exceeded such deadline, and an explanation for
the delay; and
(2) a description of all actions taken by the
Secretary under the administrative authority granted by
section 80301.
(b) Classified Annexes.--Each report under subsection (a) may
include classified annexes as necessary to protect the
disclosure of sensitive or classified information.
Sec. 80207. Advisory Committee on Commercial Remote Sensing
(a) Establishment.--The Secretary shall establish an Advisory
Committee on Commercial Remote Sensing (in this section
referred to as the ``Committee'') consisting of 15 members who
shall be appointed by the Secretary.
(b) Chair.--The Committee shall designate one member as the
chair of the Committee.
(c) Membership.--
(1) Limitation.--Members of the Committee may not be
Federal Government employees or officials.
(2) Travel expenses.--Members of the Committee shall
receive travel expenses, including per diem in lieu of
subsistence, in accordance with the applicable
provisions under subchapter I of chapter 57 of title 5.
(d) Terms.--Each member of the Committee shall serve for a
term of 4 years and may not serve as a member for the 2-year
period following the date of completion of each such term.
(e) Duties.--The duties of the Committee shall be to--
(1) provide information, advice, and recommendations
on matters relating to the United States commercial
space-based remote sensing industry;
(2) analyze the effectiveness and efficiency of the
implementation of the space-based remote sensing system
permitting process under this chapter;
(3) provide recommendations to the Secretary and
Congress on how the United States can facilitate and
promote a robust and innovate private sector that is
investing in, developing, and operating space-based
remote sensing systems;
(4) identify any challenges the United States private
sector is experiencing with the authorization and
supervision of the operation of space-based remote
sensing systems under this chapter; and
(5) provide information, advice, and recommendations
on matters related to the authority of the Secretary
under this chapter or to private sector space
activities authorized pursuant to this chapter that the
Committee determines necessary.
(f) Annual Report.--The Committee shall submit to Congress,
the President, the Secretary, and the Director of the Office of
Space Commerce, an annual report that includes the information,
analysis, findings, and recommendations described in subsection
(e).
(g) Sunset.--The Committee shall terminate on the date that
is 10 years after the date on which the Committee is
established.
Sec. 80208. Continuation of existing license or pending application
(a) Continuation of Existing License.--Any United States
entity for whom a license for the operation of a space-based
remote sensing system issued under subchapter III of chapter
601 that is valid on the effective date of this section may--
(1) elect to be immediately considered permitted for
operation under this chapter, in which case all terms
and conditions of a license issued under such
subchapter with respect to the operation of such system
shall apply for the duration of the license; or
(2) apply for a permit for operation under this
chapter and may continue to operate pursuant to such
license until such time as such permit is issued.
(b) Rescind or Transfer of Pending License.--An applicant
with an application for a remote sensing license under
subchapter III of chapter 601 that is pending on the effective
date of this section may be, at the election of the applicant--
(1) rescinded without prejudice; or
(2) transferred to the Office of Space Commerce and
deemed to be a pending application for a permit under
this chapter.
(c) Effective Date.--This section shall take effect on the
date that is 1 year after the date of enactment of the American
Space Commerce Free Enterprise Act of 2017.
Sec. 80209. Commercial Remote Sensing Regulatory Affairs Office
On the date that is 1 year after the date of enactment of the
American Space Commerce Free Enterprise Act of 2017, the
Commercial Remote Sensing Regulatory Affairs Office of the
National Oceanic and Atmospheric Administration is abolished.
CHAPTER 803--ADMINISTRATIVE PROVISIONS RELATED TO CERTIFICATION AND
PERMITTING
Sec.
80301. Administrative authority.
80302. Consultation.
80303. Appeal of denial or condition of certification or permit.
80304. Exclusive authority for determination of international
obligations.
80305. Limitation on certain agency supervision.
80306. Commercial exploration and use of outer space.
80307. Rule of construction on concurrent application submission.
80308. Federal jurisdiction.
80309. Global commons.
80310. Regulatory authority.
80311. Consultation with relevant agencies.
80312. Authorization of appropriations.
Sec. 80301. Administrative authority
(a) Functions.--In order to carry out the responsibilities
specified in this subtitle, the Secretary may--
(1) seek an order of injunction or similar judicial
determination from a district court of the United
States with personal jurisdiction over the
certification or permit holder to terminate
certifications or permits under this subtitle and to
terminate certified or permitted operations on an
immediate basis, if the Secretary determines that the
certification or permit holder has substantially failed
to comply with any provisions of this subtitle, or with
any terms of a certification or permit;
(2) provide for civil penalties not to exceed $10,000
(each day of operation constituting a separate
violation) and not to exceed $500,000 in total, for--
(A) noncompliance with the certification or
permitting requirements or regulations issued
under this subtitle; or
(B) the operation of a space object or space-
based remote sensing system without the
applicable certification or permit issued under
this subtitle;
(3) compromise, modify, or remit any such civil
penalty;
(4) seize any object, record, or report, or copies of
materials, documents, or records, pursuant to a warrant
from a magistrate based on a showing of probable cause
to believe that such object, record, or report was
used, is being used, or is likely to be used in
violation of this subtitle or the requirements of a
certification or permit or regulation issued
thereunder; and
(5) make investigations and inquiries concerning any
matter relating to the enforcement of this subtitle.
(b) Review of Agency Action.--Any holder of, or applicant
for, a certification or a permit who makes a timely request for
review of an adverse action pursuant to paragraph (2) or (4) of
subsection (a) shall be entitled to adjudication by the
Secretary on the record after an opportunity for any agency
hearing with respect to such adverse action. Any final action
by the Secretary under this subsection shall be subject to
judicial review under chapter 7 of title 5, as provided in
section 80303 of this chapter.
(c) No Cost for Certification or Permit.--The Secretary may
not impose a fee or other cost on a holder of, or applicant
for--
(1) a certification under chapter 801; or
(2) a permit under chapter 802.
(d) No Authority to Set Conditions.--The Secretary may not
impose a substantive condition on, or any other requirement
for, the issuance of a certification or permit except as
specifically provided in this subtitle.
(e) FOIA Exemption.--Paragraph (3) of section 552(b) of title
5 shall apply with respect to any filing relating to a
certification or a permit under this subtitle.
(f) Limitation on Exceptions to Administrative Procedures.--
The exceptions under section 553(a)(1), section 553(b)(B), or
section 554(a)(4) of title 5 shall not apply with respect to a
certification or permit under this subtitle.
Sec. 80302. Consultation
(a) Sense of Congress.--It is the sense of the Congress
that--
(1) the United States Government has assets in Earth
orbit critical to national security, scientific
research, economic growth, and exploration;
(2) such assets represent a considerable investment
of United States taxpayers; and
(3) it is in the national interest of the United
States to facilitate opportunities to provide for the
protection of such assets.
(b) Review.--Not later than 30 days after the Secretary
issues a certification under chapter 801, the Secretary shall
review the operations of any space objects covered by the
certification to determine whether the interaction between such
operations and the operations of a Federal Government space
object present a substantial risk to the physical safety of a
space object operated by either party.
(c) Requirement to Participate in Consultation.--If the
Secretary makes a determination that a substantial risk
identified under subsection (b) exists, the Secretary may
require that the certification holder participate in a
consultation under this section.
(d) Parties to a Consultation.--
(1) In general.--A consultation under this section
may be held, with respect to a substantial safety risk
identified under subsection (b), between--
(A) a certification holder responsible for
the certified space object operations; and
(B) any entity of the Federal Government
operating a potentially affected space object.
(2) Participation.--The Secretary may not impose any
requirement on a party pursuant to participation in the
consultation.
(e) Mitigation of Safety Risk.--In carrying out a
consultation, the Secretary shall--
(1) facilitate a discussion among the parties to the
consultation;
(2) encourage a mutual understanding of the safety
risk; and
(3) encourage, to the maximum extent practicable,
voluntary agreements between the parties to the
consultation to improve the physical safety of affected
space object operations or mitigate the physical safety
risk.
(f) Duration of Consultation; Notice.--Not later than 90 days
after the Secretary requires a consultation under this section,
the Secretary shall--
(1) complete all activities related to the
consultation; and
(2) submit to Congress a written notification with
respect to such consultation, that includes--
(A) the names of each party to the
consultation;
(B) a description of the physical safety risk
at issue;
(C) whether any voluntary agreement was made
by the parties; and
(D) the content of any such agreement.
(g) Rule of Construction.--Nothing in this section shall be
construed to grant any additional authority to the Secretary to
regulate, or place conditions on, any activity for which a
certification or permit is required under this subtitle.
Sec. 80303. Appeal of denial or condition of certification or permit
An applicant who is denied a certification under section
80103(b)(2)(B), an applicant who is denied a permit under
section 80202(b)(2)(B), or an applicant whose certification or
permit is conditioned pursuant to section 80103(c) or section
80202(c), respectively, may appeal the denial or placement of a
condition to the Secretary. The Secretary shall affirm or
reverse the denial or placement of a condition after providing
the applicant notice and an opportunity to be heard. The
Secretary shall dispose of the appeal not later than 60 days
after the appeal is submitted. If the Secretary denies the
appeal, the applicant may seek review in the United States
Court of Appeals for the District of Columbia Circuit or in the
court of appeals of the United States for the circuit in which
the person resides or has its principal place of business.
Sec. 80304. Exclusive authority for determination of international
obligations
Except for the Secretary as authorized by this subtitle, no
agency may impose a requirement or make a finding with regard
to an international obligation of the United States pertaining
to a nongovernmental entity of the United States under the
Outer Space Treaty relating to--
(1) the operation of a space object certified under
chapter 801; and
(2) the carrying out of a space debris mitigation
plan of a space object for which a certification was
issued under chapter 801.
Sec. 80305. Limitation on certain agency supervision
(a) In General.--Not later than 1 year after the date of
enactment of the American Space Commerce Free Enterprise Act of
2017, no other agency shall have the authority to authorize,
place conditions on, or supervise the operation of space
objects required to be certified under chapter 801 or space-
based remote sensing systems required to be permitted under
chapter 802 except--
(1) the Department of Transportation with respect to
launch or reentry vehicle operations licensed under
chapter 509; and
(2) the Federal Communications Commission with
respect to space stations licensed under the
Communications Act of 1934 (47 U.S.C. 151 et seq.).
(b) Agreement Limitations.--Nothing in this section shall be
construed to prevent an agency from including additional terms,
conditions, limitations, or requirements, consistent with
applicable provisions of law, beyond those required in this
subtitle in a contract or other agreement with--
(1) the holder of a certification under chapter 801
for the operation of the applicable space object; or
(2) the holder of a permit under chapter 802 for the
operation of the applicable space-based remote sensing
system.
Sec. 80306. Commercial exploration and use of outer space
To the maximum extent practicable, the President, acting
through appropriate Federal agencies, shall interpret and
fulfill international obligations, including under the covered
treaties on outer space, to minimize regulations and
limitations on the freedom of United States nongovernmental
entities to explore and use space.
Sec. 80307. Rule of construction on concurrent application submission
Nothing in this subtitle shall be construed to prevent an
applicant from submitting to the Secretary concurrent
applications for a certification under chapter 801 and a permit
under chapter 802. The Secretary shall provide for applications
under chapter 801 and chapter 802 to be filed concurrently or
at different times, at the discretion of the applicant. To the
maximum extent practicable, the Secretary shall avoid
duplication of information required in concurrently filed
applications.
Sec. 80308. Federal jurisdiction
The district courts shall have original jurisdiction,
exclusive of the courts of the States, of any civil action
resulting from the operation of a space object for which a
certification or permit is required under this subtitle.
Sec. 80309. Global commons
Notwithstanding any other provision of law, outer space shall
not be considered a global commons.
Sec. 80310. Regulatory authority
(a) In General.--The Secretary shall issue such regulations
as are necessary to carry out this subtitle.
(b) Reducing Regulatory Burden.--In issuing regulations to
carry out this subtitle, the Secretary shall avoid, to the
maximum extent practicable, the placement of inconsistent,
duplicative, or otherwise burdensome requirements on the
operations of United States nongovernmental entities in outer
space.
Sec. 80311. Consultation with relevant agencies
(a) In General.--Subject to subsection (b), the Secretary
shall, as the Secretary considers necessary, consult with the
heads of other relevant agencies in carrying out this subtitle.
(b) Exclusive Authority of the Secretary.--The consultation
authority provided by subsection (a) shall not be interpreted
to alter the exclusive authority of the Secretary to authorize,
place conditions on, and supervise the operation of space
objects under chapter 801 and space-based remote sensing
systems under chapter 802, as provided in and subject to the
limitations of section 80305.
Sec. 80312. Authorization of appropriations
There are authorized to be appropriated $5,000,000 to the
Office of Space Commerce for fiscal year 2018 to carry out this
subtitle.