Reaction to FAA-AST Decision on Bigelow’s Payload Safety Review

In a decision reached Dec. 22 but only recently made public, the FAA-AST wrote to Bigelow Aerospace on their payload safety review request stating that the FAA would leverage its launch licensing authority as best it can to protect facilities, hardware and personnel through zones of non-interference for safety.  Here are some reactions to major questions surrounding the FAA-AST’s response:

How big a deal this is; are we talking watershed moment, thin end of the wedge, or just a bit of paperwork that doesn’t have much in the way of teeth?

Answer:  This is a very important step by the US government to give increased certainty to private investors in new space activities, i.e. activities beyond telecommunications and remote sensing satellite services, such as lunar research facilities or hotels, and asteroid mining.  To be sure, it is certainly not the final step required, not quite a watershed moment but more than the thin end of the wedge.  It is a sign of considerable momentum to establishing a more certain investment environment for companies in new space activities – like a snowball that has gathering mass as it is rolled through all the U.S. Executive Branch agencies — wet snow has become a solid, ice structure as it is packed, now that ball will roll to Capitol Hill to gather further mass.  The US government (FAA AST in consultation with State Dept., Dept. of Defense, NASA, NOAA and other agencies) is saying that it will use its current launch licensing authority as best it can to protect space facilities, hardware and personnel by ensuring zones of non-interference with commercial operations.  The zones of non-interference will only apply vis a vis others being licensed by FAA AST, largely US corporations.  The decision is a sign that the US government is fully engaged in this issue and recognizes the importance of protecting and stimulating private sector investments in new space activities; it puts some “meat” on the “bones” of long-standing US policy to “advance U.S. leadership in the generation of new [space] markets.”  Hopefully, the federal government’s engagement in this issue leads to further steps in the next year or two by the US Congress: first,  to recognize property rights in extracted resources from celestial bodies, keeping in mind that companies will want to use facilities and hardware for such activities,  and second,  to establish a licensing or registration regime for on-orbit or in-space activities that does not over-regulate in a manner that stifles investments in new activities but allows the US government to meet its minimal obligations under the Outer Space Treaty Art. VI to “authorize and continually supervise” US commercial activities in outer space.  In other words, any on-orbit or in-space authority granted by the Congress to the FAA AST for new space activities can and should be “lite” or “light” as that is all that is necessary to meet US international obligations.  In the interim, companies at least know that the payload safety review process can be utilized for protection of facilities, hardware and personnel by ensuring zones of non-interference against other FAA-licensed entities.

How will foreign countries react (including Russia, China and others)?

Answer:  Space activities require huge investments, one of the reasons some level of certainty for private actors is necessary, but it is also a reason that there is competition in space between nations and, of course, some national pride involved.  In contrast to several other major space powers, the US as a matter of national policy is strongly supportive of commercial actors playing as large a role as possible in our nation’s space activities.  China and Russia may very well react negatively given the competitive issues, but they really have no cause to do so.  The step taken by FAA AST to say it will use its launch licensing authority to protect hardware and personnel and ensure safety of operations through zones of non-interference is in full conformity with US international obligations, among them Art. IX of the Outer Space Treaty that calls on countries to show “due regard” for others space activities and consult in advance if a planned activity “would cause potentially harmful interference” with activities of another nation. Moreover, the non-interference zones the FAA will create will only apply between FAA launch licensees, largely US companies.  It is certainly possible that other countries that seek to involve their private sector in space activities will look to the US approach as a model to stimulate their own private sector.  If the US follows-up this first step by recognizing private property rights in extracted space resources, it will also dampen down any negative diplomatic reactions from most countries by simultaneously creating a “lite” regulatory or registration regime for such activities..

How will other commercial entities react?

Answer: Other commercial entities are going to react very favorably to this decision.  This does not just help one company Bigelow but is the necessary starting point for any company pursuing on-orbit or in-space activities.  Protection of facilities, hardware and personnel, and creation of zones of non-interference for safety, are an essential first step for any on-orbit or in-space activity.  Again, there is more to be done for companies pursuing lunar or asteroid mining such as Congress recognizing property rights in extracted space resources, and establishing a “lite” or “light”  licensing or registration regime for on-orbit or in-space activities that will allow the US to meet its international obligations and also help dampen down any negative diplomatic reactions from other countries to establishing zones of non-interference for safe operations and recognizing property rights in extracted resources.

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