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Congress & Commerce in the Final Frontier: A Brief Legislative History of U.S. Commercial Space Law


Introduction

Today, commercial actors are increasingly the predominant users of outer space, a stark contrast to the Cold War era of the “space race” characterized by near-total government control over funding and management of space activities. Far from its past use as an arena for superpowers competing for geopolitical supremacy, outer space is evolving to be a domain in which private actors, using private capital, cooperate and compete for business; and, from their headquarters and factories on Earth, either innovate and profit or fail.

The continuing commercialization of outer space may be ascribed to many factors, not least of which are advancements in technologies, reductions in costs, and emerging capabilities and opportunities (along with corresponding business plans). Standing at the fore of the growing and globalizing commercial space sector is the United States, where the industry is experiencing unprecedented growth through an influx of private investment and novel research and development. The industry’s maturation is being guided by the anticipation that new markets, both government and commercial, will soon be accessible and vibrant in the “final frontier.”

The industry’s trajectory may be explained by its economics, board rooms, billionaire patrons, and rocket scientists. Yet just as important an influence – if perhaps more subtle – has been the “guiding hand” of government policy. The United States’ government has, for decades, pursued a generally consistent national policy of enabling and fostering the development of a robust commercial space sector. This has been implemented and is reflected in all facets of Federal and state power – White House policy guidance, statements, and decisions; agency regulations; judicial adjudications; and state tax codes and incentive programs, to name just a few.

It’s also reflected in federal statute. Beginning in the mid-1980s and continuing to this day, a series of laws – the Commercial Space Launch Act of 1984; the Commercial Space Launch Amendments Act of 1988; the Land Remote Sensing Policy Act of 1992; the Commercial Space Act of 1998; the Commercial Space Transportation Competitiveness Act of 2000; the Commercial Space Launch Amendments Act of 2004; and the Commercial Space Launch Competitiveness Act of 2015 – have progressively established and updated the statutory basis and authority for licensing and regulating commercial space activity. By tracing the evolution of commercial space statute through successive legislation, a picture of the sector’s policy priorities, challenges, and interests begins to emerge.

Far from a comprehensive study, this essay is a brief survey of the decades-long evolution in statute governing the United States’ commercial space activities. It relies extensively on the Congressional record, reports, public testimony, and other available primary sources to piece together the positions, debate, and details of the time. To accommodate the reader’s interest in further insights, these sources are heavily cited throughout this piece. Limited in scope, the essay omits other key legislative endeavors – particularly those related to NASA, the Department of Defense, and the privatization of satellite communications services – which have contained provisions affecting, sometimes profoundly, the commercial space sector. The reader and author will need to rely on a more exhaustive study to tell in full the rich story of commercial space law, its Congressional proponents and opponents, and the many on and off the Hill who have played a hand in its creation.

Licensing Launches – The Commercial Space Launch Act of 1984

The origins of the United States’ commercial space statute can be traced to 1984, with the passage of the “Commercial Space Launch Act.” This legislation established an authorization and licensing regime for private space launches; subsequent commercial space bills have largely built off and amended the language produced through this “organic law” act.

Throughout the 1960s and 1970s, only the Department of Defense and National Aeronautics and Space Administration (NASA) provided launches from American soil; as private companies and foreign companies began producing and purchasing satellites in the 1970s, they had to contract through the government for launch. The Space Shuttle, introduced in the early 1980s, was intended to take all American satellites into orbit; however, it became clear that the Shuttle’s flight schedule could not meet growing launch demand.[i]

In 1982, the first private launch of a rocket took place in the United States. The process required to gain government authorization for the launch –required by the Outer Space Treaty, of which the United States is a party – was convoluted and time-consuming, as no agency had been designated with the authority for launch licensing.[ii] A year later, President Reagan issued a directive that the government would facilitate the commercialization of launch activities in the United States.[iii]

Concurrently, interest was growing in the Congress on the commercialization of space activities. In 1981, the Congressional Space Caucus was formed, led by Congressmen Newt Gingrich (R-GA) and Daniel Akaka (D-HI). Between Gingrich’s personal affinity for space and Akaka’s parochial interests, the Caucus grew to include a substantial membership and became a leading force on Congressional focus on space throughout the 1980s.[iv] The commercialization of space launch was an early and primary focus of the Caucus; in 1982 and again in early 1983, Rep. Akaka introduced the “Space Commerce Act,” which would have designated the Department of Commerce as the authorized lead agency for licensing launches.[v] The bill had heavy co-sponsorship by colleagues on the Caucus.[vi]

However, as the Space Commerce Act waited for floor action, the Department of Transportation (DOT) began to press a case that – given its experience as a deregulator – it should be the lead agency for licensing launch, and was successful in convincing that point to the President; in November 1983, he announced his intention that DOT be given the role.[vii] Although the Space Commerce Act had been reintroduced in September – incorporating the House Subcommittee on Space Science and Applications’ amendments to-date – as the “Commercial Space Launch Act,” the House had signaled that it would defer final consideration on the bill pending this decision, having received pushback from the Office of Management and Budget.[viii],[ix] Following President Reagan’s announcement, the Subcommittee received testimony from the Secretary of Transportation on how the Department of Transportation envisioned its role as the lead licensing agency; based on this testimony, the Commercial Space Launch Act was redrafted and circulated to the Administration for comment.

In February of 1984, President Reagan signed an Executive Order formally designating DOT as the lead agency. DOT had for months been socializing the concept with the Congress, to mixed reception.[x] Nonetheless, by 1984, both the Senate and House expressed growing approval of the move. However, they noted the need for Congressional codification that would eliminate the possibility of Executive redirection or restructuring of the emerging licensing arrangement – a view shared by industry.[xi],[xii]

Throughout the spring of 1984, the Subcommittee and full Science Committee met several times to mark-up the bill – responding to unfavorable comments on particular sections received from NASA, DOT, and FCC in January – and advanced it to the full House on May 23rd. In June, the House favorably passed the bill by voice vote.[xiii] In the Senate, a companion bill was introduced by Senator Trible (R-VA) in August, with a hearing held in September that largely reaffirmed the need for a lead agency to license launches and the proposed approach.[xiv] On October 3rd, the Senate Committee on Commerce, Science, and Transportation advanced the referred Commercial Space Launch Act – as an amendment in the nature of a substitute, reflecting compromises between the Senate and House versions – and the full Senate passed the bill on the 9th.[xv]  On October 30, the bill became law.[xvi]

While most significant for laying an enabling regulatory groundwork for commercial launch activities in the United States, the Commercial Space Launch Act also contained other provisions of relevance for the budding commercial space industry. This included sections encouraging the use and acquisition of excess launch facilities by the private sector, and a requirement that licensed launch operators purchase and maintain liability insurance at a level deemed necessary by the Secretary of Transportation.

Establishing Indemnification – The Commercial Space Launch Amendments Act of 1988

The Commercial Space Launch Act established the foundation for commercial launch activities in the United States, but the industry was slow to materialize in the years that followed. The Space Shuttle continued to be used as the principal vehicle for commercial satellite launches. Then, in January 1986, the Shuttle Challenger was lost in a launch accident; in response, President Reagan announced in August that the Shuttle would no long be used for commercial launches – in part, a move to incentivize the development of commercial launch vehicles.[xvii]

In September of 1987, the House Subcommittee on Space Science and Applications held several hearings on the state of the commercial launch industry. Industry representatives testified that insurance requirements for space launch were a particularly significant barrier to entry into the launch market.[xviii] The Commercial Space Launch Act had given the Department of Transportation authority to set minimum insurance levels for liability and government property damage. However, there was outstanding uncertainty about whether insurance would be available to cover such risks – as written in the Senate’s later report, an uncertainty accentuated by government requirement to assume all risks insurable and non-insurable.[xix] The Congress also noted the emergence of a European launch competitor, Arianespace, which led the global market share of commercial satellite launch – Arianespace was shielded from the financial consequences of unlimited liability by the promise of European government-backed indemnification.[xx]

In response to the testimony received, Representative Bill Nelson (D-FL), the Chairman of the Subcommittee who had expressed enthusiasm for the President’s decision to commercialize satellite launches,[xxi] drafted and introduced the “Commercial Space Launch Amendments Act” in December of 1987, with 25 co-sponsors. The bill sought to establish a workable risk-sharing regime between industry and government – allowing launch companies, as an alternative to obtaining full liability insurance, to demonstrate sufficient responsibility to compensate claims resulting from a failure during a licensed launch, while the Department of Transportation would pay for successful claims that were not compensated by insurance.

In February of 1988, the Subcommittee held a second series of hearings on the bill, which addressed industry and Department of Defense, NASA, and Department of Transportation perspectives on insurance requirements and liability reform for commercial launch licenses.[xxii] In April, the Subcommittee considered amendments incorporating comments received from Administration and industry witnesses, rejecting tort reform but establishing reciprocal waivers of claims between launch operator and customers and subcontractors, setting maximum liability amounts, and setting maximum insurance requirements for third-party claims, damage to government property, and cross-claims. Industry would need to demonstrate liability insurance for up to $500 million, while also covering maximum probable loss of government property not to exceed $100 million. The United States government would indemnify and pay third-party claims in excess of the maximum probable loss, but not to exceed $1.5 billion, adjusted for inflation.[xxiii] As pay-out through government indemnification would require Congressional appropriation of funds, a mechanism was established within the bill to expedite passage of a compensation plan through the Congress. A “clean” bill was subsequently introduced and approved by the House Science Committee on April 21st. A month later, it was passed in the house by voice vote.[xxiv]

In the Senate, Senator Writh (D-CO), with Senators Bentsen (D-TX) and Dansforth (R-MO), introduced a companion bill in May; the Senate heard testimony from Administration officials and insurance industry representatives concerning both the House and Senate measures that month.[xxv] In October, the Senate Committee on Commerce passed the House measure with an amendment in the nature of a substitute, incorporating Senate provisions, and the full Senate passed the bill on the 14th with a voice vote. On October 21st, the House agreed, 355-1, on the Senate’s amendments.[xxvi] The bill was signed into law on November 15th, 1988.[xxvii]

While an indemnification regime for commercial launch was the primary and pressing focus of the Commercial Space Launch Amendments Act, the legislation also addressed other areas of interest pertaining to commercial launch. It encouraged NASA and the Department of Defense not to preempt licensed launches from access to launch sites or property; required a study on best practices for scheduling commercial launches at government launch sites; and directed NASA to design a program to support research and development into launch system technologies.

Reforming Remote Sensing – The Land Remote Sensing Policy Act of 1992

Like commercial launch, the Congress had also taken interest in the commercialization of Earth observation services and satellites throughout the 1980s – a response to significant Executive direction and action to that effect.[xxviii] In the 1970s, NASA developed, launched, and operated the Landsat satellites to gather Earth imagery, which became particularly valuable for organizations such as the Department of Interior and the scientific community. The early 1980s saw an effort to commercialize the civil Landsat system, which culminated in the passage of the Land Remote Sensing Commercialization Act of 1984.[xxix] The Department of Commerce was given licensing authority for private Earth observation (“remote sensing”) systems, while a program was established to contract commercial operations of the Landsat systems.

However, by the early 1990s, it was becoming increasingly apparent that the commercialization effort was failing.[xxx] The Senate and the House held a series of hearings on the effort in late 1991[xxxi] and early 1992[xxxii], where witnesses and Members expressed similar concern about shortfalls in funding and the lack of a competitive marketplace materializing for Earth observation data. The House’s Science Committee had also frequently consulted with the White House’s National Space Council, which was reviewing policy options since early 1989.[xxxiii] The House and the Senate subsequently began a parallel effort on reform legislation.

In October of 1991, Rep. Brown (D-CA), Chairman of the House Science Committee, introduced the “Land Remote Sensing Act of 1992.” The bill was reported out of Committee in May, having been marked up with an amendment – in the nature of a substitute – prepared by Rep. Brown, the Science Committee’s Environment Subcommittee Chairman Scheuer (D-NY), and Rep. Walker (R-PA), which reflected suggestions made by the Administration.[xxxiv] The bill passed by the House on voice vote on June 6th.

In the Senate, Senator Pressler (R-SD) introduced the “Land Remote Sensing Policy Act of 1992” on February 27, 1992, and in August the Senate Committee on Commerce reported the bill. What followed was a series of legislative maneuvers to expedite the legislation’s passage through both chambers, to reach the President’s desk before the end of the 102nd Congress. On October 7th, the Senate incorporated the measure, through a substitute amendment, into the House’s version, which had been referred to the Senate after its passage. The Senate then passed the House version by voice vote. In the House, Rep. Brown had reintroduced the bill – incorporating the Senate’s language – on October 5th. On October 6th, the bill was discharged from the Science Committee, considered by unanimous consent on the House floor, and passed. On October 28, the President signed the bill.[xxxv]

While the Land Remote Sensing Policy Act made a number of significant changes to the civil operation and organization of the Landsat program, it largely left the licensing regime for private remote sensing systems established under the 1984 act intact. Most significant for industry was that the Land Remote Sensing Policy Act, unlike the 1984 legislation, allowed operators of private remote sensing systems to sell their data to whomever they wished at market terms – enabling the development of a competitive marketplace;[xxxvi] the 1984 act required all data to be sold at the same terms and conditions to all potential customers. A requirement was also added that the Department of Commerce respond to applications for licenses within 120 days, slightly alleviating a significant source of uncertainty for companies wishing to pursue development of a private remote sensing satellite.[xxxvii]

Reusable Rockets & Aborted Remote Sensing Overhaul – The Commercial Space Act of 1998

Following the passage of the Land Remote Sensing Policy Act in 1992, the Congress made little headway in further dedicated commercial space legislation throughout the 1990s – despite introduced bills and efforts to do so. Nonetheless, the “Congress [continued] to be interested in [commercial space] issues… with the announcement of policies intended to create a stable business environment for the commercial development of space, both the government and the commercial sector have identified areas for improvement.”[xxxviii] In 1996, toward the end of the 104th Congress, Rep. Walker introduced the “Space Commercialization Promotion Act.” The bill passed the House in September, but languished after introduction in the Senate. In May of 1997, Rep. Sensenbrenner (R-WI), Chairman of the House Science Committee, reintroduced a substantively similar bill – the “Commercial Space Act.”

Through May, the House Subcommittee on Space and Aeronautics held three hearings regarding the bill. The first dealt with identifying improvements in the remote sensing regulatory regime to support continued growth of the sector;[xxxix] the second dealt with issues of regulation on commercial space transportation, particularly licensing emerging “reusable” rockets which could land after launch as well as in-space transportation services[xl] – witnesses agreed that a regulatory regime to license reusable rockets was necessary, though it was premature to establish one for in-space transportation;[xli] while the third also dealt with commercial remote sensing, particularly on improvements that could be made to the remote sensing policy, particularly the Land Remote Sensing Policy Act[xlii].

In June, the Subcommittee and full Committee marked-up the bill, with minor amendments being made to satisfy Administration requests.[xliii] As stated during the markup, the Committee would push ahead with provisions requiring the Departments of Defense and State to list, in the public register, its concerns related to national security and international obligations on submitted remote sensing license applications, so as to ensure further licensing transparency and certainty for the industry.[xliv] Notably, the Committee report chastised the Department of State for its “failure to appear before the Committee [during hearings on remote sensing] and offer its comments in a public forum limit the value or import that can be given to the Department’s concerns, many of which appear to be inconsistent with existing law in the Land Remote Sensing Policy Act of 1992.”[xlv]

On November 4, despite an earlier call of “no quorum” on the House floor,[xlvi] the House passed the bill by voice vote. A companion bill was introduced by Senator Graham (D-FL) on November 8, which codified Administration policy on the use of excess ballistic missiles as launch vehicles but did not include the House bill’s remote sensing provisions.[xlvii] On March 5, the Senate convened a hearing on the House’s bill.[xlviii]

On June 2, the Senate Committee on Commerce reported the bill with an amendment in the nature of a substitute – incorporating several changes, including the addition of Senator Graham’s excess ballistic missile provision. The legislation was then finalized as it “bounced” between chambers, both making minor modifications through amendments to the others’ passed version. On July 30, the Senate passed the bill by unanimous consent – significantly, to secure its passage by unanimous consent, the Senate’s version struck the Houses’ remote sensing provisions.[xlix] On October 5, the House agreed to the Senate’s amendments with its own amendment, making further minor changes; the Senate agreed to that amendment on October 8 by unanimous consent. Finally, on October 28, the bill was signed into law.[l]

As passed, the Commercial Space Act contained a series of significant overhauls to standing commercial space statute, as well as new measures to foster the continued commercial development of space.[li] It established, as policy, that the economic development of space was a priority goal for constructing the International Space Station, and required NASA to study commercial opportunities onboard and in using the International Space Station. By amending the Commercial Space Launch Act, authority was given to the DOT’s Office of Commercial Space Transportation to license commercial reentry activities, filling a regulatory gap related to – and facilitating the development of – reusable rockets that could land after launch. The bill authorized the government’s purchase of space science data and Earth remote sensing data from commercial providers, so as to offer the industry more market opportunity. It mandated that the government, to include the Department of Defense, was required – except under certain circumstances – to procure space transportation services from U.S. commercial providers, which would be treated as commercial acquisitions under federal acquisition regulations. Finally, as noted, the bill codified national policy prohibiting the use of excess intercontinental ballistic missiles as space launch vehicles.

Extending Indemnification – the Commercial Space Transportation Competitiveness Act of 2000

Without an extension, the commercial space launch risk-sharing regime established by the Commercial Space Launch Amendments Act of 1988 was set to expire in December of 1999.                                                                        

In July of that year, Congressman Rohrabacher (R-CA), Chairman of the House Subcommittee on Space, introduced the “Commercial Space Transportation Competitiveness Act” in response to FAA and industry testimony on the need for renewal to the spaceflight indemnification regime. The bill would extend indemnification for commercial space launches for 5 years – to 2004.[lii]

On July 29, the bill moved through the Science Committee, and in October it passed the House by voice vote after remarks in support by Chairman Sensenbrenner, Rep. Gordon (D-TN), and Rep. Lampson (D-TX).[liii] The bill remained in the Senate until October of 2000, when an amendment in the nature of a substitute, making minor modifications, was presented by Senator Lott (R-MS) for Senator McCain (R-AZ) – who had worked with Senators Hollings (D-SC), Frist (R-TN), and Breaux (D-LA) on the language[liv] – and agreed to by unanimous consent. On November 1, 2000, the President signed the bill into law.[lv]

While the extension of indemnification was perhaps the act’s most significant provision, it also authorized, for 3 years, appropriations for two offices with mandates to promote and regulate the commercial space sector – the Office of Commercial Space Transportation in the Department of Transportation, and the Office of Space Commercialization in the Department of Commerce. The legislation also required a report on the indemnification regime, expressing the views of NASA, the Department of Defense, the Office of Commercial Space Transportation (AST), and the Office of Space Commercialization on the adequacy, effectiveness, and continuing need for liability risk sharing for commercial space launch – and whether the policy would need to be changed, perhaps towards the approach of the airline liability regime.

Regulating Human Spaceflight – The Commercial Space Launch Amendments Act of 2004

A major milestone for commercial spaceflight occurred in October 2004, when the privately-funded, human-piloted SpaceShipOne spacecraft flew into space on a suborbital trajectory – the first private launch with humans onboard.[lvi] SpaceShipOne’s team had been competing in the Ansari X Prize competition, established in 1996 – by the time it won the competition, SpaceShipOne had been years in development. A unique “hybrid” vehicle, SpaceShipOne was lofted into the air by an aircraft, at which point it detached, ignited its rocket, and flew to space.[lvii]

While the X Prize and SpaceShipOne prompted predictions of a new era in commercial spaceflight, they also highlighted significant gaps in standing commercial space law and regulation. How would “hybrid” space vehicles be licensed? How would suborbital spaceflight be addressed? How would commercial human spaceflight be regulated, and what sort of safety regime would be established?

Efforts to address these questions began in June 2003, when Senator McCain and Senator Brownback (R-KN) introduced the “Commercial Space Transportation Act of 2003.” The bill aimed to extend the commercial space launch indemnification regime and mandated a report by the Secretary of Transportation on the need for a regulatory regime for suborbital vehicles.[lviii] While the bill failed to gain traction in the Senate, it prompted a joint House-Senate hearing on commercial human spaceflight.[lix] There was general consensus among witnesses that, during early stages of the commercial human space flight, customers would have to waive all claims of liability against the companies taking them into space. The witnesses also requested that Congress indemnify companies against the consequences of human launch accidents in the same manner that the federal government indemnifies launches by the traditional commercial space transportation industry.[lx]

In response to the points articulated at the hearing, Rep. Rohrabacher introduced the “Commercial Space Act of 2003” in October. In November, the House Subcommittee on Space and Aeronautics held a second hearing, focused particularly on the newly introduced bill.[lxi] The hearing examined whether commercial human space flight should be regulated in the FAA AST, as opposed to the FAA’s Regulation and Certification Office or through office. Witnesses expressed differences in opinion across the board.[lxii]

The Commercial Space Act was soon subsumed by a more complex and developed bill also introduced by Rep. Rohrabacher, the Commercial Space Launch Amendments Act, which was cosponsored by the Science Committee Chairman, Rep. Boehlert (R-NY) and Ranking Member, Rep. Gordon. The bill was reported favorably from the Committee in February 2004. On March 4, the House passed the bill, 402 – 1, though not without the threat of amendment from Rep. Luca (R-OK) and Rep. Flake (R-AZ); Flake contesting the amount of money authorized for AST under the bill, and Rep. Lucas requesting the House consider changing definitions appearing in the bill when negotiations ensued in the Senate.[lxiii],[lxiv] Both amendments were withdrawn on the House floor.[lxv]

The bill stalled in the Senate, despite Senator Inhofe (R-OK) introducing in August a companion bill, the “Space Chase Act,” which mirrored its language. While the Senate Commerce Committee took no action on the bill, bipartisan negotiations began between the staff of the House and Senate committees; the edits were extensive enough that, on November 18, Rep. Rohrabacher reintroduced the bill in the House to incorporate them.[lxvi]

A vote on Rep. Rohrabacher’s newly introduced bill was scheduled in the House on November 20 when last-minute issues emerged. While the House Transportation & Infrastructure Committee, which had jurisdictional control over issues pertaining to the FAA, had declined a legislative referral on the bill[lxvii] – indicating that it had no substantive objection – senior Democratic members of the Committee felt otherwise. A debate occurred when the bill came to the House floor, with Rep Oberstar (D-MN), Ranking Member of the Committee, and Rep. DeFazio (D-OR) analogizing human spaceflight to traditional aviation and arguing for a licensing regime that placed a greater emphasis on passenger safety.[lxviii]

Despite these objections, the bill was passed with a final vote of 269 – 120. However, in the Senate, where a vote by unanimous consent was scheduled, an “anonymous hold” was placed on the bill – done over definitional issues over suborbital vehicles that took off under jet power but went to space under rocket power.[lxix] With the hold on the legislation, the bill seemed destined to die at the expiration of the Congress; the media following the bill’s progress anticipated it would fail.[lxx] However, with last minute support from the newly-elected Senate Minority Leader, Sen. Reid (D-NV), the Senate took the bill up on December 8 and passed it – one of the final bills to pass the waning 108th Congress. On December 23, the bill was signed into law.[lxxi]

As Rep. Rohrabacher’s final bill – which ultimately passed both chambers – was pre-negotiated, no conference committee was convened nor was a conference report drafted. Considered without debate in the Senate, the legislative history on Senate deliberations is nearly non-existent.[lxxii] Nonetheless, the language featured in the passed legislation reflects compromise found between the House Science and the Senate Commerce Committees. As described by Rep. Boehlert, the language of the bill “is the equivalent of a conference report, as it reflects bipartisan negotiations” between the two chambers.[lxxiii]

While being called by some an “industry wish-list,”[lxxiv] the Commercial Space Launch Amendments Act achieved several significant aims for the regulation of commercial spaceflight.[lxxv] Among them, the legislation located all regulatory authority for commercial human spaceflight in the FAA’s Office of Commercial Space Transportation and established an “experimental permit” category that would allow industry to test new types of reusable suborbital rockets. It again extended the commercial launch indemnification regime. Perhaps most importantly, it established a regulatory regime for commercial human spaceflight: requiring AST to issue regulations for crew training, limiting safety requirements for non-crew passengers – “spaceflight participants” – to consist only of informed of, and providing written consent to, the risks of their participation. A “learning period” for commercial spaceflight was created, in which the Secretary of Transportation would not issue safety regulations beyond the informed consent regime established in the bill. In short, despite the objections raised by the House T&I Committee’s Democrats, the bill established what a majority in the Congress ultimately decided was the most balanced regulatory regime to foster the development of the nascent commercial human spaceflight industry.[lxxvi]

The U.S. Commercial Space Launch Competitiveness Act of 2015

In the decade following the Commercial Space Launch Amendments Act of 2004, the launch indemnification regime and industry regulatory “learning period” were, through various pieces of legislation not specific to commercial space, extended. However, by 2015, the indemnification regime was to sunset in 2016,[lxxvii] while the learning period was to end on September 30, 2015.[lxxviii] The launch and human spaceflight industries, which had not grown and developed as anticipated following the flight of SpaceShipOne, desired another extension.[lxxix] Meanwhile, several companies were exploring business plans for mining asteroids for valuable resources – another novel area of space activity for which there was no statutorily-approved authorization regime.[lxxx]

On May 12, Rep. McCarthy (R-CA), House Majority Leader, introduced the “Spurring Private Aerospace Competitiveness and Entrepreneurship (SPACE) Act. Among other provisions, the bill sought to update several of the standing provisions in commercial space statute – extending the “learning period” prohibition on commercial spaceflight regulation through 2023, extending the launch indemnification regime through 2023 while providing for an updated calculation on maximum probable loss for insurance requirement, extending indemnification to cover spaceflight participants, and extending cross-waivers of liability to include spaceflight participants.[lxxxi]

The same day, Senator Cruz (R-TX), Chairman of the Space Subcommittee, introduced a companion bill to the SPACE Act – the “Commercial Space Launch Competitiveness Act.” It contained many of the provisions of the House bill, though it did not include indemnification or cross-waivers for spaceflight participants and only extended the learning period and launch indemnification through 2020.[lxxxii] Unlike in the House, the bill enjoyed bipartisan support, with co-sponsorship by Sen. Nelson, Ranking Member of the full Senate Commerce Committee, and Sen. Peters (D-MI), Ranking Member of the Space Subcommittee. On May 20, the Senate Commerce Committee favorably reported the bill on a unanimous voice vote.

On May 13, the House Science Committee marked up the SPACE Act. Democratic members of the Committee opposed the act, particularly its provisions on spaceflight participants and its extension of indemnification. Science Committee Ranking Member Eddie Bernice Johnson (D-TX), Space Subcommittee Ranking Member Edwards (D-MD), and Rep Grayson (D-FL) all spoke against the bill, Rep. Grayson in particular saying that “any limitation of liability, any indemnification, is wrong… we invite an accident, we invite a tragedy, if we limit liability.”[lxxxiii]  

Democratic members of the Committee offered a series of amendments – to shorten the learning period and launch indemnification to 5 years, to elimination a provision that would allow suborbital companies to hold launch licenses and experimental permits simultaneously for the same vehicle, and to remove a specification that federal courts hold sole jurisdiction for legal action arising from a licensed launch. However, all amendments were struck down on party lines.[lxxxiv] Meanwhile, the Committee approved – again on party lines – an amendment by Rep. Knight (R-CA) to extend indemnification and the learning period to 2025.[lxxxv]

During markup, the Committee also incorporated three other pieces of commercial space-relevant legislation into the SPACE Act’s text. Two of them proved non-controversial – one, sponsored by Rep. Bridenstine (R-AK), requiring the Department of Commerce to report on delays in issuing licenses for remote sensing spacecraft and examining any needed updates to remote sensing statute, and one, sponsored by Rep. Rohrabacher, renaming the Office of Space Commercialization to the Office of Space Commerce and updating the scope of its responsibilities. The third was the Space Resource Exploration and Utilization Act of 2015, introduced earlier in the year by Rep. Posey (R-FL) and Rep. Kilmer (D-WA), which permitted American companies property rights to resources they mine or otherwise obtain in space.[lxxxvi]

The Committee’s Democrats raised concerns about whether the bill would comply with international treaties, particularly the Outer Space Treaty, which prohibit appropriation of extraterrestrial territory by means of use or occupation. Ranking Member Johnson introduced an amendment that would replace the bill with an interagency study on the legal issues on space resource property rights. Again, Rep. Johnson’s amendment failed.[lxxxvii] The SPACE Act was then reported favorably out of Committee on party lines, 18-13.[lxxxviii],[lxxxix]

On May 21, the full House took up the bill. In debate, Rep. Edwards noted that the bill “simply doesn’t adequately protect the public’s interest regarding safety of spaceflight participants – both the bill’s supporters and opponents pointed to a Statement of Administration Policy that, while not opposing the bill, called attention to concerns it had about the learning period extension.[xc] During the bill’s time on the floor, several amendments making minor changes and additions were considered and accepted. Rep. Edwards introduced an amendment that would replace the bill’s text with the Senate’s version, passed a day earlier.[xci] However, the amendment was voted down on near-party lines,[xcii] with Republicans noting that the House bill, a compilation of several bills, now contained many more provisions.[xciii] The House then moved to vote on the bill, which it passed 281-133 – with nearly every Republican and 48 Democrats voting in favor.[xciv]

The House and Senate conducted a conference through the summer and into the fall, concluding work on October 28.[xcv] However, on October 29, a “hold” was placed on the bill, reportedly over the cross-waiver provisions for spaceflight participants that House Democrats opposed during the May markup.[xcvi] However, the hold was lifted, presumably over an alteration in the conferenced Senate text that would eliminate the cross-waiver provision for spaceflight participants in 2025; the House’s version would have applied the provision indefinitely. Among other changes, the conferenced text also contained a significant revision to the space resources property rights language included in the House bill – extended the right from applying only to material obtained from asteroids, to materials obtained from any “celestial body;” however, the revised language deleted a provision allowing for civil relief from “harmful interference” by other actors United States entities during the course of resource utilization activities.[xcvii] 

On November 10, the bill was discharged by unanimous consent from the Senate Committee on Commerce, was considered – as an amendment in the nature of a substitute – on the Senate floor, and passed by unanimous consent. On November 16, the House passed the Senate’s amended bill by voice vote. On November 25 – as the 114th Congress wound down – the President signed the bill into law.[xcviii]

Like the Commercial Space Act of 1998 and the Commercial Space Launch Amendments Act of 2004, the Commercial Space Launch Competitiveness Act made several significant updates to existing commercial space statute while establishing new areas of law.[xcix] Though a comparatively minor portion of the bill, the provisions establishing a statutory basis for private space mining received significant academic and press coverage.[c] The bill extended indemnification for 10 years, through 2025 – a far longer extension than had been in other bills; it also extended the “learning period” through 2023. Creating a new legal category for government-employed individuals who fly on spacecraft – “government astronauts” – the bill enabled NASA’s and international partners’ astronauts to ride on commercial vehicles without signing the otherwise required liability waivers, removing a potential legal roadblock (as the government can’t waive its liability).[ci] Finally, the bill laid a framework for further legislative action on commercial space activity by requiring reports on the remote sensing licensing regime and needed reforms, and on streamlining the launch licensing regime.

Observations, Conclusions, & Author’s Remarks

As noted in the introduction, this essay has set out to briefly review and describe the evolution of the United States’ commercial space statute, detailing the contents of its constituent legislation and the general process by which that legislation was developed and passed. Given the present availability of primary and secondary sources, and of Congressional documents, the picture becomes clearer for the legislative efforts of recent years than for the efforts of the 1980s and early 1990s. Constrained both by scope and by the accessibility of information, this paper could not capture in full all of the debate, compromise, staff participation, and Member involvement that surely molded and influenced the law we have today. Nonetheless, several general observations and conclusions can be drawn from the story presented.

First is on the importance of stakeholders in the legislative process and debate. Space policy professionals, especially those working for the commercial sector, are closely familiar with particular members of Congress and their staff – and for good reason. As seen in this legislative history, certain individuals were more closely and consistently involved in the crafting of commercial space legislation than their colleagues. Members such as Rep. Rohrabacher, Rep. Sensenbrenner, Rep. Johnson, Rep. Gordon, and Rep. (and later, Sen.) Nelson, among others, are seen playing significant – often leading – roles in several of the efforts of this decades-long history.

Motivations for this involvement varied: sometimes from parochial concerns (such as was suggested for Rep. Akaka, or for the “space state” members from Texas and Florida), to genuine passion and personal interest (such as Rep. Gingrich, and increasingly, Rep. Rohrabacher). Congressional organizations and caucuses, such as the Space Caucus of the 1980s, can play significant – sometimes critical – roles in identifying and building interest, motivation, and support for particular legislative efforts. In short, Members “matter” – a widely recognized, though perhaps often underappreciated fact. Legislation is not developed impartially, solely on “pure” issues of public policy; rather, it is the interests, perspectives, experiences, and legacies of the Members and staff involved that are often pivotal in shaping a bill’s final form. For narrow fields such as commercial space, statute has been influenced more by the Members who “showed up” by joining (or being assigned to) relevant Committees and Subcommittees of jurisdiction, than it has by those who didn’t – in a sense, the body of commercial space law that exists today is more a reflection of the efforts and policy positions of handfuls of Members than it is of the whole of Congress.

Yet it is not just Members who “matter.” The history of commercial space legislation demonstrates that external stakeholders play significant roles in the identification of issues to address and the shaping of debate. This is especially true for commercial space law – statute designed in particular to govern particular actors and stakeholders, not the public at-large. Through meetings with staff and Members and testimony delivered at tailored hearings, the commercial space industry has – throughout the decades – identified emergent capabilities and corresponding areas of regulatory concern. The legislation developed has closely reflected those positions; indeed, to the point that some have decried the bills as “industry wish-lists.”

However, industry is not alone in playing an important external role in the legislative process. As seen, the Congress has consulted with and considered the positions and perspectives of the relevant regulating agencies, the Administration, academia, think-tanks, interest groups, and others with a stake in or position on commercial space. Language in these bills has frequently been added, modified, or struck to capture and accommodate their concerns. Noted multiple times for several of these acts, the final product is not “a perfect bill.” Rather, it is compilation of compromises – a common ground forged between the perspectives of Members of both chambers, a delicate balance struck between various groups and interests with often different – and sometimes entirely disparate – desires and concerns. This is not unique to commercial space legislation; rather, it is the defining characteristic of the legislative process, and indeed of governance in general.

For those who follow, study, or participate in the legislative process, the evolution of commercial space statute is an exemplary case-study in the myriad procedures, steps, and maneuverings that legislation can undergo. The legislative process is rarely as simple and straightforward as suggested in basic civic classes; as the various pieces of commercial space legislation demonstrate, arriving at passage of a bill can require significantly advanced legislative procedure. There are “holds” that can be placed in the Senate to force adjustment to contentious language (as seen in the Commercial Space Launch Amendments Act of 2004 and the Commercial Space Launch Competitiveness Act of 2015); bills can be finalized through final-vote floor amendments adjusting the other chamber’s final-vote floor amendments (seen in the Commercial Space Act of 1998); bills can be introduced and reintroduced, sometimes in the last moments, to incorporate the other chamber’s language and expedite passage (seen in the Land Remote Sensing Act of 1992). Legislation may substantively replicate and build upon bills that failed in previous Congresses (the Commercial Space Act of 1998) or consist of several separate bills compiled together in a markup (the Commercial Space Launch Competitiveness Act of 2015). Legislation may feature companion bills introduced in the other chamber to force the legislative process, or it may not. Simply put, there is no definitive, singular way that an idea becomes a bill, or a bill becomes a law.

That said, the evolution of commercial space statute has shown a remarkable consistency in the adherence to a “regular order” in general Congressional process. Except, perhaps, for the Commercial Space Launch Competitiveness Act,[cii] each bill developed in a similar way – Subcommittees and Committees holding hearings, often several, on particular topics of legislative interest; a bill being introduced reflecting the testimony and perspectives offered in the hearing; Subcommittee and Committee markup, sometimes including opportunity for amendment; floor consideration, sometimes offering opportunity for amendment; and votes on final passage. At a time when many decry what is perceived as a gradual breakdown in the legislative process, the various commercial space bills reflect the Congressional process largely “working right” – offering stakeholders the opportunity to offer ideas and expert opinions and giving Members the opportunity to ask questions, offer perspectives, and contribute substantively to language.

The evolution of commercial space law is also demonstrative of how legislation often builds upon past statute. It features an “organic law” – in this case the Commercial Space Launch Act of 1984, or the Land Remote Sensing Policy Act of 1992 – which sets a statutory foundation for a particular topic. Subsequent legislation establishes new policy by building upon that organic law through explicit amendment – such as the Commercial Space Launch Act being amended over the years to feature an indemnification regime and “learning period” regime, incorporate suborbital and reusable rockets in licensing, enable the issuance of “experimental permits,” and cover human spaceflight. Congress need not – and, as seen, often does not – establish whole new sections of statute and code in order to address new or developing topics in a particular issue area.

Turning to more specific observations on commercial space policy, as revealed through this legislative history – first, particularly encouraging during this era of increasing political polarization, commercial space has been a topic of generally broad bipartisan support and cooperation. Most bills, particularly in the 1980s and 1990s, were passed by unanimous consent or non-controversial voice votes and featured non-contentious mark-up processes, in which amendments were widely accepted or not offered at all. While there was, of course, minor disagreements over language in the earlier bills, it was not until the Commercial Space Launch Amendments Act of 2004 and the Commercial Space Launch Competitiveness Act of 2015 that significant partisanship – or split votes – had been demonstrated in markup or on the chamber floor. Even then, this disagreement has largely focused around the indemnification and passenger safety regimes; significant policies, to be sure, but not the entire scope of commercial space statute.

It is notable that the indemnification regime has been a consistent focal point for legislative efforts on commercial space since the 1980s. Originally designed to sunset only several years after the 1988 bill’s passage, it has now been extended for nearly three decades – and is set to last for at least another several years from today, if not indefinitely. The “learning period” on safety regulations increasingly looks to be in similar circumstances. As both policy topics have seemingly been settled for some years to come, the partisan disagreement demonstrated during the latest passed commercial space bills may not similarly materialize in upcoming ones – though a Congressional Democratic Majority could, conceivably, revisit and amend the regimes.

Otherwise, commercial space legislation has largely focused on straight-forward and generally bipartisan issue areas seeking to promote and foster the growth of the commercial space sector. As new capabilities not envisioned in earlier bills came online or were proposed – reusable rockets, commercial Earth observation satellites, suborbital spacecraft, private human spaceflight, asteroid mining – the Congress has addressed the resultant regulatory gap. Aligned with Administration policy, the Congress has pursued policies which mandate that the government maximize utilization of – and minimize competition with – commercial space service and launch providers. When regulatory or licensing regimes have been demonstrably “broken” or clear impediments to industry development, the Congress has attempted to fix or revise them. Through consistent reporting requirements and study mandates, the Congress has sought to identify relevant issues and opportunities addressable by future legislation.

In all, the legislative history of commercial space statute is a fascinating case-study into Congressional processes and procedures, as well as the specific policy areas of focus and concern for the commercial space industry and the Congress. If the past thirty years of commercial space legislation suggest anything, it’s that, so long as commerce is pursued in the “final frontier,” it will surely be accompanied by a relevant legislative proposal (and debate) in the halls of Congress.


Works Cited


[i] A condensed background on Executive Branch actions that catalyzed legislative action on commercial launch licensing may be found in: Federal Aviation Administration, “Origins of the Commercial Space Industry”. https://www.faa.gov/about/history/milestones/media/Commercial_Space_Industry.pdf

[ii] For a review of the ad-hoc process SSI had to undertake to secure authorization to launch, see: Steptoe, E. Jason, “United States Government Licensing of Commercial Activities by Private Enterprise” (1985). Documents on Outer Space Law. 7. Pg. 193. https://digitalcommons.unl.edu/cgi/viewcontent.cgi?article=1006&context=spacelawdocs. See also: Allen Duane Weber, “Launching the Rocket Industry in the United States: Domestic Regulation of Private Expendable Launch Vehicles,” 50 J. Air L & Com 1 (1984). https://scholar.smu.edu/cgi/viewcontent.cgi?referer=https://www.google.com/&httpsredir=1&article=1721&context=jalc

[iii] Norman D. Sandler, “Reagan clears way for commercial satellite launchers,” UPI, May 16, 1983. https://www.upi.com/Archives/1983/05/16/Reagan-clears-way-for-commercial-satellite-launchers/9624421905600/

[iv] For an in-depth history of the Congressional Space Caucus, reference: Jacqueline Cortese, “Rediscovering Space: The Rise and Fall of the Congressional Space Caucus, 1981-1989,” Carnegie Mellon University, 2012. http://shelf1.library.cmu.edu/HSS/2012/a1471377.pdf.

[v] Ibid. pg. 26.

[vi] Rediscovering Space: The Rise and Fall of the Congressional Space Caucus, 1981-1989.” Pg. 28.

[vii] A personal recounting of this development, and its impact on subsequent legislation, may be found in an interview with Courtney Stadd, who helped engage Congress on commercial launch issues during that period. See: Rebecca Wright, “Interview with Courtney A. Stadd,” NASA Headquarters Oral History Project, January 2003. https://www.jsc.nasa.gov/history/oral_histories/NASA_HQ/Administrators/StaddCA/StaddCA_1-7-03.htm

[viii] “House Report No. 98-816 to Accompany H.R. 3942, Commercial Space Launch Act,” 98th Congress, May 31, 1984. Pg. 9.

[ix] Rediscovering Space: The Rise and Fall of the Congressional Space Caucus, 1981-1989.” Pg. 29.

[x] An in-depth recollection of the back-and-forth between the Congress and Executive on deciding which Agency would be granted the lead on launch licensing may be found in: Norman Bowles, “DOT (New Guys) Meets the Hill (Veterans of Space),” http://www.commercialspacetransportation.info/dot-meets-the-hill/

[xi] House Report No. 98-816. Pg. 9. See also:  “Senate Report No. 98-656 to Accompany H.R. 3942,” 98th Congress, October 3, 1984. Pg. 2.

[xii] “DOT (New Guys) Meets the Hill (Veterans of Space)”

[xiii] “All Actions: H.R. 3942 – 98th Congress (1983-1984).” Congress.gov. https://www.congress.gov/bill/98th-congress/house-bill/3942/all-actions

[xiv] “Commercial Space Launch Act: hearing before the Subcommittee on Science, Technology, and Space of the Committee on Commerce, Science, and Transportation, United States Senate, Ninety-eighth Congress, first session, on S. 2931.” 98th Congress, September 6, 1984.

[xv] “All Actions: H.R. 3942 – 98th Congress (1983-1984).”

[xvi] “Public Law 98-575”, Government Publishing Office. October 30, 1984. https://www.gpo.gov/fdsys/pkg/STATUTE-98/pdf/STATUTE-98-Pg3055.pdf

[xvii] Philip Boffey, “Commercial Launching By NASA Ordered Shifted To Private Sector,” New York Times, August 16, 1986. https://www.nytimes.com/1986/08/16/us/commercial-launching-by-nasa-ordered-shifted-to-private-sector.html. See also: “Origins of the Commercial Space Industry”.

[xviii] “State of Commercial Launch Industry, Hearings before the Subcommittee on Space Science and Application of the House Science, Space, and Technology Committee,” 100th Congress, September 15, 17, 1987.

[xix] “Senate Report No. 100-593 to Accompany H.R. 4399,” 100th Congress, October 7, 1988. Pg. 4.

[xx] Ibid.

[xxi] “Commercial Launching By NASA Ordered Shifted To Private Sector.”

[xxii] “H.R. 3765, the Commercial Space Launch Act Amendments, Hearings before the Subcommittee on Space Science and Applications of the House Science, Space and Technology Committee on H.R. 3765,” 100th Congress, February 16, 17, 1988.

[xxiii] Detailed analysis of the risk-sharing regime established by the Commercial Space Launch Amendments Act may be found in: Valerie Kayser, “An Achievement of Domestic Space Law: U.S. Regulations and Private Commercial Launch Services,” 16 Annals Air & Space L 341 (1991). See also: Kim Yelton, “Evolution and Implementation of the Commercial Space Launch Act and Amendments of 1988,” 4 J.L. & Tech. 117 (1989).

[xxiv] “All Actions: H.R. 4399 – 100th Congress (1987 – 1988).” Congress.gov. https://www.congress.gov/bill/100th-congress/house-bill/4399/

[xxv] Senate Report No. 100-593 to Accompany H.R. 4399,” 100th Congress, October 7, 1988.

[xxvi] “All Actions: H.R. 4399 – 100th Congress (1987 – 1988).”

[xxvii] “Public Law 100-657,” Government Publishing Office. November 15, 1988. https://www.gpo.gov/fdsys/pkg/STATUTE-102/pdf/STATUTE-102-Pg3900.pdf

[xxviii] A thorough review of the evolution in U.S. commercial “remote sensing” policy and execution, particularly in the 1980s, may be found in: Kenneth Thompson, “A Political History of Commercial Remote Sensing, 1984 – 2007: Conflict, Collaboration, and the Role of Knowledge in the High-Tech World of Earth Observation Satellites,” Virginia Polytechnic Institute and State University, November 20, 2007. https://vtechworks.lib.vt.edu/bitstream/handle/10919/30235/STS_Dissertation_Ken_Thompson_2007.pdf;sequence=1. See also: Scott Pace, “The Regulation of Commercial Remote Sensing Systems,” RAND, March 1994. https://www.rand.org/content/dam/rand/pubs/testimonies/2006/CT112.pdf

[xxix] “Public Law 98-365,” Government Publishing Office. July 17, 1984. https://www.gpo.gov/fdsys/pkg/STATUTE-98/pdf/STATUTE-98-Pg451.pdf

[xxx] “A Political History of Commercial Remote Sensing, 1984 – 2007: Conflict, Collaboration, and the Role of Knowledge in the High-Tech World of Earth Observation Satellites,” Pg. 21.

[xxxi] “All Actions: H.R. 3614 – Land Remote Sensing Act of 1992 – 102nd Congress (1991-1992).” Congress.gov. https://www.congress.gov/bill/102nd-congress/house-bill/3614/all-actions.

[xxxii]S. 2297, the Land Remote Sensing Policy Act of 1992 : hearing before the Subcommittee on Science, Technology, and Space of the Committee on Commerce, Science, and Transportation, United States Senate,” 102nd Congress. May 6, 1992.

[xxxiii] “House Report No. 102-539, National Landsat Policy Act of 1992,” 102nd Congress, May 28, 1992. Pg. 13.

[xxxiv] Ibid, Pg. 14.

[xxxv] “Public Law 102-555,” Government Publishing Office. October 28, 1992. https://www.gpo.gov/fdsys/pkg/STATUTE-106/pdf/STATUTE-106-Pg4163.pdf

[xxxvi] “The Regulation of Commercial Remote Sensing Systems,” Pg. 4.

[xxxvii] Ibid, Pg. 5.

[xxxviii] “House Report No. 105-347, Commercial Space Act of 1998,” 105th Congress. October 24, 1997. Pg. 13.

[xxxix]The Commercial Space Act of 1997, parts I-III: hearings before the Committee on Science, Subcommittee on Space and Aeronautics, U.S. House of Representatives,” 105th Congress. May 21, 22, and June 4, 1997.

[xl] Ibid.

[xli]  “House Report No. 105-347, Commercial Space Act of 1998.” Pg. 16.

[xlii] “The Commercial Space Act of 1997, parts I-III: hearings before the Committee on Science, Subcommittee on Space and Aeronautics, U.S. House of Representatives.” See also: “House Report No. 105-347, Commercial Space Act of 1998.” Pg. 18.

[xliii] “House Report No. 105-347, Commercial Space Act of 1998.” Pgs. 110-115, 117-121.

[xliv] Ibid, pg. 119.

[xlv] Ibid, pg. 17.

[xlvi] “All Actions: H.R. 1702 – Commercial Space Act of 1998 – 105th Congress (1997-1998).” Congress.gov. https://www.congress.gov/bill/105th-congress/house-bill/1702/all-actions

[xlvii] “Senate Report 105-198,” 105th Congress. June 2, 1998. Pg. 3. https://www.congress.gov/105/crpt/srpt198/CRPT-105srpt198.pdf

[xlviii] Ibid, pg. 4.

[xlix] “Congressional Record – House, Vol. 144, No. 137 Daily Edition.” 105th Congress. October 5, 1998. Pg. H9499. https://www.congress.gov/crec/1998/10/05/CREC-1998-10-05-pt1-PgH9494-4.pdf

[l] “Public Law 105-303,” 105th Congress. October 28, 1998. https://www.congress.gov/105/plaws/publ303/PLAW-105publ303.pdf

[li] Detailed section-by-section breakdown, particularly of Committee views on each provision, may be found in the House and Senate reports. Note that the Senate’s report, issued subsequent to the House’s report, provides a more accurate perspective on the bill’s language as it approached its final form passed into law: “House Report No. 105-347, Commercial Space Act of 1998.” Pgs. 19-32. and “Senate Report 105-198.” Pgs. 9-15.

[lii] Hon. Dana Rohrabacher, “Commercial Space Transportation Competitiveness Act of 1999,” Congressional Record Vol. 145, No. 106, July 26, 1999. Pg. E1650. https://www.congress.gov/crec/1999/07/26/CREC-1999-07-26-pt1-PgE1650-2.pdf

[liii] “Commercial Space Transportation Competitiveness Act,” Congressional Record Vol. 145, No. 132, October 4, 1999.

[liv] “Commercial Space Transportation Competitiveness Act of 2000,” Congressional Record Vol. 145, No. 130, October 17, 2000. https://www.congress.gov/crec/2000/10/17/CREC-2000-10-17-pt1-PgH9949.pdf

[lv] “Public Law 106-405,” 106th Congress. November 1, 2000. https://www.congress.gov/106/plaws/publ405/PLAW-106publ405.pdf

[lvi] Alan Boyle, “SpaceShipOne wins $10 million X-Prize,” NBC News. October 5, 2004. http://www.nbcnews.com/id/6167761/ns/technology_and_science-space/t/spaceshipone-wins-million-x-prize/#.W_N_puhKiUk

[lvii] Mike Wall, “How SpaceShipOne and X Prize Launched Commercial Spaceflight 10 Years Ago,” Space.com. October 3, 2014. https://www.space.com/27339-spaceshipone-xprize-launched-commercial-spaceflight.html

[lviii] “S. 1260 – Commercial Space Transportation Act of 2003 – 108th Congress (2003-2004),” Congress.gov. https://www.congress.gov/bill/108th-congress/senate-bill/1260

[lix] A comprehensive look at the politics and provisions behind the Commercial Space Launch Amendments Act, including in-depth discussion of the rationale behind its commercial human spaceflight sections, may be found in: Timothy Hughes & Eta Rosenberg, “The Evolution of the Commercial Space Launch Amendments Act of 2004,” 31 J. Space L. 1 (2005). Pg. 26.

[lx]Commercial human space flight : joint hearing before the Subcommittee on Space and Aeronautics, Committee on Science, House of Representatives and the Subcommittee on Science, Technology, and Space, Committee on Commerce, Science, and Transportation, U.S. Senate,” 108th Congress.July 24, 2003. https://www.gpo.gov/fdsys/pkg/CHRG-108hhrg88501/html/CHRG-108hhrg88501.htm

[lxi] “The Evolution of the Commercial Space Launch Amendments Act of 2004,” Pg. 27.

[lxii] “House Report 108-249 to Accompany H.R. 3752, Commercial Space Launch Amendments Act of 2004.” 108th Congress. March 1, 2004. Pgs. 4-6. https://www.congress.gov/108/crpt/hrpt429/CRPT-108hrpt429.pdf

[lxiii] “The Evolution of the Commercial Space Launch Amendments Act of 2004,” Pgs. 28-29.

[lxiv] For a description of Rep. Lucas’ concern, see: Ibid, Pg. 32. See also: Alan Boyle, “All systems go for new spaceflight law,” NBC News. July 22, 2004. http://www.nbcnews.com/id/5490410/ns/technology_and_science-space/t/all-systems-go-new-spaceflight-law/#.W_LCzuhKiUk

[lxv] Ibid, Pg. 28.

[lxvi] Ibid, Pgs. 40-41.

[lxvii] Ibid, Pg. 41

[lxviii] “150 Congressional Record H10049,” Congressional Record Index. 2004.

[lxix] “The Evolution of the Commercial Space Launch Amendments Act of 2004,” Pgs. 42.

[lxx] Jeff Foust, “When good legislation goes bad,” The Space Review. October 11, 2004. http://www.thespacereview.com/article/244/1. See also: “The Evolution of the Commercial Space Launch Amendments Act of 2004,” Pg. 43.

[lxxi] “Public Law 108-492,” Government Publishing Office. December 23, 2004. https://www.gpo.gov/fdsys/pkg/PLAW-108publ492/pdf/PLAW-108publ492.pdf

[lxxii] “The Evolution of the Commercial Space Launch Amendments Act of 2004,” Pg. 40.

[lxxiii] “150 Congressional Record H10052, at 1445” Congressional Record Index. November 19, 2004.

[lxxiv] “The Evolution of the Commercial Space Launch Amendments Act of 2004,” Pg. 47.

[lxxv] A detailed breakdown of these provisions, including their rationale and differences between the earlier and later versions of the legislation, may be found in: “The Evolution of the Commercial Space Launch Amendments Act of 2004,” Pgs. 38-71.

[lxxvi] For a staff perspective on the established regulations for human suborbital spaceflight, see: Rebecca Wright, “Interview with James A.M. Muncy,” NASA Johnson Space Center Oral History Project. June 21, 2013. https://www.jsc.nasa.gov/history/oral_histories/C3PO/MuncyJAM/MuncyJAM_6-21-13.htm

[lxxvii] “House Report 114-119, Spurring Private Aerospace Competitiveness and Entrepreneurship Act of 2015,” 114th Congress. May 18, 2015. Pgs. 8-9. https://www.congress.gov/114/crpt/hrpt119/CRPT-114hrpt119.pdf

[lxxviii] “Senate Report 114-88, U.S. Commercial Space Launch Competitiveness Act,” 114th Congress. July 22, 2015. Pg. 2. https://www.congress.gov/114/crpt/srpt88/CRPT-114srpt88.pdf

[lxxix] Jeff Foust, “Congress launches commercial space legislation,” SpaceNews. May 26, 2015. http://www.thespacereview.com/article/2759/1

[lxxx] Rod Pyle, “Deep Space Industries: A New Asteroid-Mining Company Is Born,” Space.com. January 28, 2013. https://www.space.com/19462-asteroid-mining-deep-space-industries-birth.html. See also: Mike Wall, “Asteroid Mining May Be a Reality by 2025,” Space.com. August 11, 2015. https://www.space.com/30213-asteroid-mining-planetary-resources-2025.html.

[lxxxi] “H.R. 2262 – Introduced in House (5/12/2015).” Congress.gov. https://www.congress.gov/bill/114th-congress/house-bill/2262/text/ih

[lxxxii] “Congress launches commercial space legislation.”

[lxxxiii] Ibid.

[lxxxiv] “House Report 114-119 – Spurring Private Aerospace Competitiveness and Entrepreneurship Act of 2015.” Pgs. 34-39. https://www.congress.gov/114/crpt/hrpt119/CRPT-114hrpt119.pdf.

[lxxxv] Ibid, pgs. 30, 32-33.

[lxxxvi] For background on this bill’s predecessor legislation and international implications, see: Charles Stotler, “The ASTEROIDS Act and hearing: some observations on international obligations.” SpaceReview. September 22, 2014. http://www.thespacereview.com/article/2604/1. See also: Jeff Foust, “Hearing Raises Questions About Asteroid Mining Bill,” SpaceNews. September 10, 2014. https://spacenews.com/41825hearing-raises-questions-about-asteroid-mining-bill/

[lxxxvii] “Congress launches commercial space legislation.”

[lxxxviii] “House Report 114-119 – Spurring Private Aerospace Competitiveness and Entrepreneurship Act of 2015,” Pg. 43.

[lxxxix] A full description and explanation of the Democrat’s dissenting views on the SPACE Act’s provisions may be found in the “Minority Views” section of the House Report: “House Report 114-119 – Spurring Private Aerospace Competitiveness and Entrepreneurship Act of 2015,” Pgs. 67-71.

[xc] “Congress launches commercial space legislation.”

[xci] “Amendment Text: House Amendment 261 to H.R. 2262 – 114th Congress (2015-2016).” Congress.gov, https://www.congress.gov/amendment/114th-congress/house-amendment/261/text

[xcii] “Final Vote Results for Roll Call 261,” House Clerk. May 21, 2015. http://clerk.house.gov/evs/2015/roll261.xml

[xciii] “Congress launches commercial space legislation.”

[xciv] “Final Vote Results for Roll Call 262,” House Clerk, May 21, 2015. http://clerk.house.gov/evs/2015/roll262.xml

[xcv] Jeff Foust, “Senate Holds Up Final Passage of Commercial Space Bill,” SpaceNews. November 3, 2015. https://spacenews.com/senate-holds-up-final-passage-of-commercial-space-bill/

[xcvi] Ibid.

[xcvii] Jeff Foust, “U.S. Senate Passes Compromise Commercial Space Bill,” SpaceNews, November 11, 2015. https://spacenews.com/u-s-senate-passes-compromise-commercial-space-bill/

[xcviii] “Public Law 114-90,” Congress.gov. November 25, 2015. https://www.congress.gov/114/plaws/publ90/PLAW-114publ90.pdf

[xcix] Detailed section-by-section breakdown, particularly of Committee views on each provision, may be found in the House and Senate reports. Note that the House’s report, covering the provisions of the additional bills added to the text, is more comprehensive than the Senate’s version. Also note that neither report reflects the language of the final bill as passed into law: “House Report 114-119 – Spurring Private Aerospace Competitiveness and Entrepreneurship Act of 2015,” Pgs. 10-30. and “Senate Report 114-88, U.S. Commercial Space Launch Competitiveness Act,” 114th Congress. July 22, 2015. Pg. 2.

 and “Senate Report 105-198.” Pgs. 7-12.

[c] Mark Whittington, “Space mining is now part of American law,” The Hill. November 25, 2015. https://thehill.com/blogs/congress-blog/technology/261226-space-mining-is-now-part-of-american-law.

[ci] Jeff Foust, “The Real Winners of the Commercial Space Bill,” SpaceNews Magazine. January 4, 2016. http://www.spacenewsmag.com/foust-forward/the-real-winners-of-the-commercial-space-bill/

[cii] As suggested in the “Minority Views” section of the House report – which stated that no hearings were held for the bill – though disputed in the Majority’s background write-up: “House Report 114-119 – Spurring Private Aerospace Competitiveness and Entrepreneurship Act of 2015,” Pgs. 67-71.

Human Spaceflight Regulations: A Matter of Safety, or Legitimacy?

Introduction

Emergent high-technologies pose a dilemma for policymakers of modern society. In their incubatory forms, these technologies are without defined and accepted standards – technical or social – of design and operation. Without such standards, high-technologies cannot be fully “understood;” and if they cannot be fully understood, can they be fully controlled? There is a clash between emerging technologies’ “novelty” – their being not fully known or assessed – and  the modern regulatory state that has developed to govern their development and consumption; a social mechanism which seeks to preserve a general uniformity of behavior and cultural norm (order) and reliability of that behavior (control).[i]

The tension between novelty and regulation is especially true for high-risk technologies, which present a specter of social harm. The consumption of high-risk technologies – who may use them; how may they use them; when can they use them; and what, if any, protections they receive when using them – therefore becomes a value statement; a judgment of individual and collective tolerance for potential costs and an evaluation of individual and collective benefit. Permitting or prohibiting use of a high-risk technology, and in what shape and form, is a social dialogue that extends beyond the technology itself, reflecting broader cultural values, contexts, and concerns. As such, a decision on the nature and scope of regulation is ultimately a decision on social power – which actor has authority over decisions to mitigate or not mitigate risk, which actor has autonomy in decisions to assume risk.

In short, the debate over use and regulation of high-risk high-technologies is about legitimacy – i.e. socially recognition, acknowledgement, and acceptance of power in its various contours and dimensions. When not all is known or can be accounted for in the character of a technology, who is (and who is not) the proper arbiter of its risk? What legal and institutional frameworks for managing that technology confer legitimacy to its use, justifying risks to involved and uninvolved public against potential costs? These arrangements are, like perceptions of risk, socially constructed – beholden to ideological predispositions about the interplay of safety and society.

Commercial human spaceflight offers a salient case-study on legitimacy as a frame for discussion of risk and safety. In recent years, vigorous debate has occurred over the safety standards involved in private flight of humans to, from, and in outer space – particularly, whether the government should regulate passenger safety and spacecraft design. Spaceflight is an overtly risky activity.[ii] Despite a history of 50 years of human activity in space, the space environment’s effects on the human physiology is still not well understood. More importantly, the technological hurdles of accessing and using the space environment necessitate vastly complex systems of hardware and people, often with unclear or unanticipated single points of failure. The historical chances of casualty in human spaceflight are larger than 1 in 70.[iii]

This paper explores the debate on commercial human spaceflight safety through the lens of social construction – finding that the debate is not grounded on spaceflight technology itself, or the activity of spaceflight, but on differently held constructs of safety, society, and risk. The disparate perspectives expressed in the debate arrive at disparate prognoses for what risk identification and management regime (or lack thereof) is appropriate and acceptable for this risky high-technology’s use – that is, which confers legitimacy to the enterprise. This paper does not set out to arrive at an answer to the debate, but rather to explore its foundational dimensions beyond the sound-bites, floor statements, and policy proposals that have to-date shaped it.

Spaceflight Participant Safety & Regulation – The Legal Context & Debate

The prospect of an industry for commercial human spaceflight began to materialize in the early 2000s, with the first private launch of humans into outer space successfully carried out in 2004[iv]. Responding to the nascent field, the United States Congress passed a law – the Commercial Space Launch Amendments Act of 2004 (CSLAA) – which established a foundational legal and regulatory regime to govern private human spaceflight. As signed into law, the CSLAA established a regime premised on passenger informed consent: with vehicle operators required to inform spaceflight participants about the risks of flight – including detailing the safety record of their vehicle and stating that it is not government-certified as safe – and spaceflight participants assuming and consenting to the risks of participating.[v]

The FAA’s safety regime is limited to protecting the safety of the uninvolved public; regulations may not be promulgated to specify design criteria or practices of passenger-carrying spacecraft so as to address or mitigate risk. While the FAA can create training and medical standards for passengers and crew, it cannot restrict or prohibit “design features or operating practices” unless these have been found to “have resulted in a serious or fatal injury… to crew or spaceflight participants during a licensed or permitted commercial human space flight.”[vi] This has colloquially come to be known as the industry “learning period.”

Contentious debate during the CSLAA’s consideration was demonstrative of starkly different regulatory philosophies regarding high-risk activities – and of values held on the proper nature and scope of a government’s role in risk mitigation for nascent high-technologies.[vii] At the time, the FAA’s Associate Administrator for Commercial Space expressed the view that passengers “should be able to board their vehicles with the same freedom as the stunt pilots who pioneered commercial aviation.”[viii] This perspective was mirrored by the legislation’s proponents; one, Rep. Boehlert, described the rationale behind the learning period and informed consent as of the industry being at,

“the stage when it is the preserve of visionaries and daredevils and adventurers… these are people who do not expect and should not expect to be protected by the government. Such protection would only stifle innovation…[ix] [The bill strikes] the right balance, protecting the public without stifling the industry… and sets the industry on a path toward greater regulation as it develops.”[x]

Others, though, viewed passenger safety and vehicle risk in starkly different ways. Rep. Oberstar and Rep. DeFazio, both leading members of the House of Representatives’ committee overseeing transportation, analogized commercial human spaceflight to traditional aviation. Rep. Oberstar, in opposition to the bill, circulated a criticism stating that the legislation’s safety standard,

“amounts to the codification of what has been come to be known in aviation safety parlance as the ‘tombstone mentality’: don’t regulate until there are fatalities. For many years, many of my colleagues and I have criticized the Federal Aviation Administration for waiting until after a disaster to take safety actions, and have urged a more proactive safety oversight…[xi] I do not think that safety regulation is ever silly.”[xii]

The safety regulation learning period established by the CSLAA was set to “sunset” (expire) in 2012. However, the commercial spaceflight industry did not materialize at the pace expected in 2004. Indeed, no spaceflights of private passengers – paid customers or company crew – occurred in the years following the 2004 flights. Amid industry concern, and Congressional receptivity, that not enough data had been collected to properly inform the FAA on the character of potential regulation, the learning period was granted two extensions – setting it to expire in 2015.[xiii] By that time, many in industry were again petitioning the Congress to extend the learning period, arguing that it was still premature to issue regulations given the lack of flight experience. Jeff Greason, Chairman of XCOR – a commercial suborbital human spaceflight company – noted at the time that “we don’t want to start regulating based on the shape of the industry today in a fashion that prevents it from evolving.”[xiv]

However, the FAA stated its opposition to any extension of the learning period, with the FAA Associate Administrator for Commercial Space saying that “we appear to be just kicking the can down the road.”[xv],[xvi] He proposed that the development of industry-consensus standards could enable the government to have a reference point in later regulations – an approach similar to the regulatory regime in sport aircraft “that would prevent an overreaction and hastily crafted, inappropriate regulations in response to some high-profile accident.”[xvii] Others, such as Mike Griffin, a former NASA Administrator, noted that it was “inconceivable that we’re going to have a lesser regulatory structure for commercial human spaceflight than we have for my Beach Bonanza airplane.”[xviii]

Nonetheless, in late 2015, Congress again took up an extension to the learning period – reinvigorating the debate over passenger safety. The Commercial Space Launch Competitiveness Act of 2015 (CSLCA), as introduced, proposed an extension of the learning period for 5 years; later amendment to the legislation extended it out to 2023. The legislation also extended “cross-waiver” provisions to spaceflight participants through 2025, requiring them to waive away right for legal action against the United States government for damages in the event of an accident, except under circumstances of gross negligence.[xix],[xx]

Much like the debate over the CSLAA, there was strong disagreement over the CSLCA extending limitations on safety regulation of human spaceflight. Rep. Grayson, during the legislation’s consideration, argued that “[a]ny limitation of liability, any indemnification, is wrong… [w]e invite an accident, we invite a tragedy, if we limit liability.”[xxi] The provisions were “corporate welfare,” he said, that creates a “moral hazard.”[xxii] The CEO of the American Association for Justice issued a statement saying “this bill is terrifying because it says certain corporations can’t be held accountable if they cause any kind of harm to others.”[xxiii]

The CSLCA directed the FAA, through industry groups, to facilitate the development of voluntary industry consensus safety standards – a process that was begun in 2016.[xxiv] The process of industry-developed standards was lauded, by some, as demonstrative of industry commitment to safety – “establishing good, effective safety, engineering, and management standards in a voluntary industry association is the hallmark of any reputable and mature industry.”[xxv] In the words of one executive of a commercial spaceflight company, developing standards for safety “really is on our shoulders, and in terms of us having a safe place in the market, we take that seriously, we want to put our own families on board, we take that very seriously. So we are holding ourselves to internal standards.”[xxvi] Yet others see the CSLAA’s mandate against government-issued safety regulations as anathema to safety, regardless of industry’s production of (or stated commitment to produce) safety standards – “industries that lobby for immunity from accountability might as well hang up a sign saying they don’t trust themselves to be safe.”[xxvii]

Parsing the Debate

While the distinct and singular policy issue of government regulation of human spaceflight safety seems “settled” for now – with the CSLCA extending the learning period through 2023, still 5 years out at the time of this writing – the debate surely is not. Indeed, the evident philosophical disagreements on risk, safety, and regulation are no more reconciled now than they were at time of consideration of the CSLAA or CSLCA. What can be made of the debate’s key points?

First is the disagreement over the commercial human spaceflight as more closely resembling a “thrill-seeking” industry or a “common carriage” industry, which connotes legal and liability statuses and establishes implicit rights and duties between the provider and the passenger.[xxviii] This difference, as debated, was framed in terms of practical analogies – an “adventurer” knowingly and willingly “signing up” for a potentially dangerous joyride, similar to a skydiver, or a paying passenger purchasing a ride on a mode of technological transportation, similar to a traveler using commercial aviation.

Underscoring these different distinctions is a crucial value-judgment on assessment and acceptance of risk. It is an element of our cultural perception toward acceptable risk that in “everyday” activities, such as a vacationer boarding a major airline, one cannot be properly informed of all borne risks and be prepared to waive away rights to safety – nor should they. Flying is, indeed, a risky activity – as is driving, or smoking, or crossing the street – but it is conferred with legitimacy through the auspice of a safety regime consisting of government oversight and regulation. Conversely, it is generally socially accepted that an individual willingly participating in a “novel” or “thrill-seeking” activity – a (sometimes infrequent) activity perceived to have unique risks and/or unique costs which distinctly attract or detract participation based on one’s opportunity-cost assessment of its value – may do so when personally aware of what’s at stake. These activities are legitimized by an individual’s autonomy to make value-judgments and decisions based on their rational self-interest and cognition.

In other words, and at the crux of the issue, is a philosophical difference on a key question: who has the legitimate authority and autonomy to make distinctions and decisions about risk assessment and management in the high-risk, high-technology activity that is commercial human spaceflight: the passenger, or the government? Similarly, who has legitimate authority in ensuring operational safety, communicating risk to passengers, and mediating conflicts between the two: the industry, or the regulator?

This raises the second key question of the debate – who can be entrusted to frame, bound, and design the processes and characteristics of safety in commercial human spaceflight? At present, safety “regulation” is being attempted through industry-led voluntary safety consensus standards. But, in our social conception and construct of safety – viewed and understood particularly through the lens of industrial competition, market economics, and corporate self-interest – can the operator reasonably be expected to govern itself; is it a legitimate safety “regulator”? Conversely, does (and can) government oversight and regulation ensure safety and mitigate risk for a developmentally immature industry with uncertain technologies and unknown risk propositions? Given this uncertainty, does government regulation merely offer an “illusion” of legitimacy?

These are, again, value-laden, ideologically-driven, culturally contextual determinations. They belie a single “correct,” objective answer. They do, however warrant a deeper investigation of the concepts of risk, technological failure, and regulation.

On Risk

Fundamental to questions of safety and regulation – and the roles, authority, and corresponding legitimacy of certain social actors to adjudicate the interplay between them – is the concept of “risk.” Risk generally refers to the potential for an undesirable or unanticipated event, and/or a lack of knowledge of the unknown.[xxix] The calculus of risk pertains to things of value, often to one’s person or property, and the possibility to lose them[xxx] – in insurance law, for example, risk refers to the chance of injury, damage, or loss of property.[xxxi] “Risk,” then, is broadly, a social construct – a determination of opportunity cost subject to culture, context, perceptions and communication.[xxxii]

Given that proponents of a limited safety regulatory regime for commercial human spaceflight analogize the industry to “thrill-seeking” ones, it is appropriate to consider risk in the context of “adventure.”[xxxiii] Risk is generally considered an important element of an “adventure activity,” in that it makes it worth a participant’s “time, resources, energy, and possibly even health and life;”[xxxiv] indeed, removing too much risk from adventure may subdue or negate the premise of the activity.[xxxv] The high value of an adventure experience may overcome a participant’s aversion to risk,[xxxvi] with each individual establishing and conducting their own opportunity-cost evaluation.[xxxvii] In short, risk-taking in “thrill-seeking” activities is very much a product of an individual’s desires measured against the threat of injury in satisfying those desires – a value-judgment framed by one’s personal context.

This, of course, is contingent on risk perception – a calculation of value in the participation in a high-risk activity. For activities that are deemed as very high value, an attempt to participate may be valued even at a low probability of success or high cost of failure. Risk perception and calculus thereby “sorts” participants to levels of risk and safety that is appropriate and acceptable to their own values.[xxxviii] However, risk perception is not consistent; individuals tend to perceive risk to others as different or inconsistent to risk to themselves. They may under-perceive risk, leading to “unrealistic optimism,” and therefore assume more risk than they realize or anticipated in their opportunity-cost evaluation.[xxxix]

Risk perception in “thrill-seeking” activities, though skewed by individuals, can be managed the operators.[xl] This can be for the “positive” or the “negative” – with operators potentially “talking risks up” or downplaying their significance. This has consequence in the context of a spaceflight safety informed consent regime; in a litigation-oriented society such as the United States, informed consent must be written and documented with due regard to law lest it create the challenge of litigation for negligent nondisclosure.[xli] In the view of some, a “prudent operator” of a spaceflight system would disclose both events with a high likelihood of occurring and those with a low likelihood of occurring with severe consequence.[xlii] There runs the risk, however, of litigation-worried operators miring spaceflight participants in vast amounts of technical data or information when detailing the risk they are assuming – with description of individual risks becoming lost “noise” to the layperson.[xliii] A reasonable question posited is whether, “much like the fine print on a lengthy contract,” this could effectively nullify the “informed” nature of consent to participate in the risky activity.[xliv]

Moreover, the social construction of risk suggests that it is not simply a matter of individual autonomy or perception. Rather, it exists in the context of society’s interest in maintaining collective values. It can conflict with a society’s right to not be harmed as a consequence of an activity – especially one that cannot be abrogated of risk.[xlv]

This thus warrants the social evaluation of “acceptable” risk. The “acceptable” level of risk is a threshold below which risk will be tolerated; an “optimal” level is that at which the incremental cost of risk reduction equals the marginal reduction achieved in societal cost.[xlvi] Yet, as terms such as “acceptable” and “optimal” inherently suggest, these are value-laden and subjective determinations. Risks are calculated by meaningful probabilities; the perceived gravity of harm is a factor.[xlvii] Some activities may constitute high risk of harm, but with a low probability that such harm will occur; others may pose low risk of harm and equally low probability of occurrence. An acceptable risk can then be considered one whose perceived likelihood of a harmful event occurring is low, whose perceived consequence of a harmful event is slight, or whose perceived benefits are large enough that society is willing to be subjected to the risk the event could occur.[xlviii] Accordingly, this suggests a legal – and corresponding moral – social permission of voluntary and personal risk-taking through an individual’s capacity to be informed, make a decision, and consent to potential risk.[xlix]

Safety – and its regulated mandate or lack thereof – can therefore be considered contextual and flexible. Something is “safe” if it is socially deemed so; if its risks are socially decided to be acceptable.[l] The commonly-posed question for governments is – “how safe is safe enough?”[li] Of course, particularly risky activities can be or become accepted by the amount of value placed on it.[lii] This posits a second, equally important question – “how much value is value enough?”

“Value enough” is, of course, another subjective determination. Examined in the context of private human spaceflight, multiple value-laden inputs to that determination – informed by ideological and philosophical positions – may be posited. Is there more value in “fostering” the economic vitality or innovative capacity of the nascent industry by limiting regulatory burden and proscription, or in ensuring a maximal amount of safety for those who are involved in flights and their operation – along with those who are not? Is there more value in trusting the autonomy of the cognizant individual to willingly make risky decisions, or in protecting the individual from potential misrepresentations or miscalculations of burdens of risk to which they may subscribe? Is there more value in affording these risky private activities the opportunity to be carried out – even if they may risk public harm – or in restricting or outright banning them so as to ensure that the uninvolved public can enjoy its right to stay uninvolved from the actions of a non-public actor? These are deeply fundamental questions about causality, responsibility, and the role of individual, the business, the economy, and the state in society.[liii]

Whether the consumer of human spaceflight – the future paying passenger (or crew member) – will expect or demand more safety is currently unknown. Establishing a risk proposition for commercial human spaceflight in the present, and a corresponding level of safety acceptance, thereby requires a value-based, ideologically constructed legitimization of particular actors (in this case, the industry and individual) to carry out the presumed needed, but as of yet unclear, motions of risk assessment and management. Of course, it is equally unclear whether these actors, despite their legitimization, will be able to successfully carry out the safety promises and prerogatives they hold to the level socially deemed necessary.

The debate on risk is also demonstrative of ethically-framed conceptions of risk management, with advocates for strong and oversight and regulation generally ascribing to the framework of the “precautionary principle,” and those who advocate for an informed consent regime and voluntary standards ascribing to a utilitarian construct of safety.[liv] These disparate ethical perspectives on the legitimacy of risk managers have importance in the context of risk uncertainty and regulation.

On Technological Accidents, Uncertainty, & Regulation

Risk acceptance – “safe enough” – is, as noted, flexible. Results or perceptions of risk in the present do not necessarily correspond to those levels of risk in the past, nor are they indicative of future trends or circumstances.[lv] This is, in part, due to the inherent uncertainty involved in the risk ramifications of variable designs and operations of emerging high-technologies such as commercial human spacecraft. Uncertainty poses a particular challenge for commercial human spaceflight, as the evidence for risk of harm remains inconclusive while data is collected simultaneous to some measure of regulation ensuring public safety being promulgated.[lvi] Nonetheless, imputing defined risk to objects increases a sense of control and social order;[lvii] and an ability to control that risk thereby influences the degree of a risk’s social and political acceptance. In the context of how that risk is evaluated and valued – and its corresponding base level of “acceptability” – the imputation of risk on an object justifies the legitimization of certain particular actors to control it.

“Things” are “generally deemed risky or safe in and of themselves.”[lviii] This is evident in the discourse on safety standards for commercial human spaceflight – spacecraft are “risky,” as space is “risky.” These vehicles rely on “dangerous” methods of power and propulsion, and “effective” mechanisms to control and ensure passenger safety are undefined. In short, these machines and their inherent risk are depicted as quantifiable – in present, past, and future – by the people who govern them.[lix] The precautionary principle – as part of the broader discourse on the control of technology – favors a model of regulation that equates attention to risk reduction through regulatory compliance with “safety.”[lx] Under this presumed paradigm, formal rules – safety standards, approved designs – ensure value-free and consistent assessment of risk and risk mitigation.

However, it has been widely noted that managing technological risk is highly context-dependent;[lxi] pure technical risk analyses at any point in time are unlikely to provide much benefit to policymaker, regulator, or society at-large. The evolution of an emerging technology or system is challenging – if not impossible – to accurately predict.[lxii] This problem is compounded by systems of incredible technical and human complexity, as is the case with human-rated spacecraft operating in unfamiliar profiles and environments. Such systems can chaotically fail in unexpected ways, sometimes set off by a minor “glitch.”[lxiii]

These “disasters waiting to happen” are inadvertently built into complex systems, often the result of confusing or unanticipated interactions.[lxiv] “Normal accidents,” as they are known, are bound to occur – because complex disaster patterns can generally only be translated in hindsight.[lxv] Accordingly, systems may not be considered completely reliable nor safe until they have been operated through their full profile of potentiality – until considerable uncertainty has been dispelled on their operation and technical characteristics.

Even then, a machine is more than a collection of moving parts – it is a “congealed embodiment of an entire history of social assumptions, conventions, interests, and cultural practices.”[lxvi] Blame does not rest on a malfunctioning object – people are principally responsible for accidents; “normal accidents” are not the fault of a machine – they are the fault of people creating, and operating in and around, complex systems without the foresight of potential fault-trees or externalities. As such, responsibility for safety – and for blame – is political and cultural, not inherently technical. Risk and accidents are the manifestation of processes and cultures that keeps actors unaware of a system’s or decision’s full complexity, and unaware of all the possibilities at which a complex system can fail.[lxvii]

The critical interrelationship of people and machine in risk and safety effectively suggests that regulation is not a process of governing technologies, but rather governing people. Technological practices are incapable of being governed by “rules,” because compliance is ultimately an issue of human judgment – interpretation – by the regulator and the regulated.[lxviii] In essence, risk assessment and mitigation in the regulatory context can be considered subjective and bounded by its practitioners’ perspectives, knowledge, and constraints – “as much art as science.”[lxix]

Equally important is the relationship between the regulator and the regulated. Limited by technical expertise and resources, regulators often cannot be closely involved in many of the tests of technological assessment. Rather, they certify and oversee the representatives – usually, technical experts and insiders from industry with unique knowledge of novel systems and technologies – who may. This “second-order” regulation manifests from a need to make complex judgments in an environment where rules, as noted, are “interpretively flexible.”[lxx] In essence, the organizations producing high-risk technologies often play active roles in their own regulation, even under a government-mandated and overseen regulatory regime. The regulator become a perceived “virtuous witness,” who can attest to and presumably ensure the virtue and validity of these expert secondaries.[lxxi]

This simple reality – be it distinct “regulatory capture” or mere necessity given the techno-social complexities of high-technology systems – belies a key public perception, manifest in political and social discourse, of the “regulator” as an “independent expert… and disinterested arbiter of objective facts.”[lxxii] Of course, the part can still be seen as played up by the regulator – that regulation is “performative as well as functional” – that it is “better to speak grandly of a rigorous method enforced by disciplinary peers, canceling the biases of the knower and leading ineluctably to valid conclusions.”[lxxiii] Nonetheless, if rules and numbers convey legitimacy in that they constrain action or design – limiting discretion when credibility is “suspect” (as, looking at the discourse, the credibility of the industry to regulate itself is) – then the suggestion that rules may be non-constrictive, subject to the regulated expert’s interpretation and subjective flexibility, indicates that the core issue of credibility is not, and perhaps cannot be, resolved.[lxxiv]

What is all of this to suggest? Principally, that a belief that public regulatory institutions and their processes have inherent meaningful efficacy is based on subjective perceptions, value-based assumptions, and ideological conceptions of the role of public bodies in overseeing and governing private activities. The notion that a public regulator can and should act as a credible “referee,” verifying and validating the practices of self-interested private actors for the benefit of the public good, is demonstrated in the debate over commercial human spaceflight safety standards and held as a close normative expectation – even if it is not constructed by reality.

Nor is this affirmative belief in public regulatory institutions premised on clearly objective metrics in the context of commercial human spaceflight. The critical literature on safety in highly complex, high-risk, high-technology systems and technologies indicates key points – that, in absence of operational experience, it is near-impossible to effectively predict, and thereby regulate, the evolution of emerging high-technologies such as spacecraft; that, for highly complex technologies, the inherent interplay of human-machine systems makes an unanticipated or unpredicted accident or incident probable, if not inevitable; that regulatory institutions often rely on “second-degree” regulation, effectively subsuming the regulated industry’s expert and niche understandings, perceptions, and perspectives in the process of establishing, enforcing, and verifying regulations.

This is to say that the legitimization of a public institution to regulate emerging technologies is “illusory.” A public regulator issuing safety regulations is not, inherently and naturally, more effective or “safer” than an industry group producing voluntary consensus standards. Equally so, an industry group producing voluntary consensus standards is not, inherently and naturally, less effective or “riskier” than a public regulator. All is contingent not on the “public or private nature” of the group or institution, but on its processes, its politics, and its culture – whether it can or cannot navigate systematic complexity in order to identify, assess, manage, and mitigate all possibilities of system failure and all types of risk. 

Accordingly, this legitimization is foundationally premised on socially and ideologically constructed expectations and concerns about the role of the private actor, vis-à-vis the public actor, in the trade-space of the public good. Can private actors be trusted to uphold public safety and strive for protection of the public good? Can public institutions properly arbitrate risk and safety impartially, objectively, without influence or capture by externalities? Ultimately, this debate over legitimization of public regulators is – like with risk – a debate over politics and worldview, of trust or suspicion of individual autonomy versus the collective right, the private actor versus the public sector, which in turn shapes understandings of concepts such as safety, the public good, precaution, utility.    

Concluding Observations

As noted in the introduction, this essay has not attempted to arrive at policy prescriptions or answers regarding the complicated debate over commercial human spaceflight safety standards. Those are better suited for mediums such as op-ed pages and floor statements. Rather, it explored how socially-constructed perceptions and ideologies enable and force the legitimization of certain actors to oversee value-laden concepts such as risk, safety, and regulation.

This analysis is important in the context of the politically-charged debate over commercial spaceflight safety, and more broadly in debates over the proper evaluation and management of risk and safety for emerging, risky, high-technologies. Though politically convenient, digestible, and narratively resonate, the debate is not simply and merely about “self-interested capitalists against accountable public safety;” “the right of thrill-seekers and adventurers against the heavy hand of a nanny-state;” “innovation and business against stifling regulation;” “money against people.” Rather, it is about fundamental worldviews and conceptions of the individual, the economy, the state, and the public. These worldviews are correct or incorrect depending on perspective; as social constructs contingent on culture and context, they are relative. Most importantly, they are starkly demonstrative of how disparate and contradictory prognoses of the use and limits of technology may be among different, though equally valid, perceptions.


Works Cited


[i] Sara Langston (2016), “Space Travel: Risk, Ethics and Governance in Commercial Spaceflight,” in 4 New Space 2. Pg. 84.

[ii] Molly Macauley (2005), “Flying in the Face of Uncertainty: Human Risk in Space Activities,” in 6 Chicago Journal of International Law 1.

[iii] Michael Elliott Leybovich, “A Technoregulatory Analysis of Government Regulation and Oversight in the United States for the Protection of Passenger Safety in Commercial Human Spaceflight,” Massachusetts Institute of Technology, February 2009. Pg. 76.

[iv] Rebecca Anderson and Michael Peacock, “Ansari X-Prize: A Brief History and Background,” NASA, February 2010.

[v] Timothy Hughes & Eta Rosenberg (2005), “The Evolution of the Commercial Space Launch Amendments Act of 2004,” in 31 Journal of Space Law 1. Pgs. 51-53.

[vi] “A Technoregulatory Analysis of Government Regulation and Oversight in the United States for the Protection of Passenger Safety in Commercial Human Spaceflight.” Pgs. 42-43.

[vii] “The Evolution of the Commercial Space Launch Amendments Act of 2004.”

[viii] “Flying in the Face of Uncertainty: Human Risk in Space Activities.” Pg. 138.                                           

[ix] “The Evolution of the Commercial Space Launch Amendments Act of 2004.” Pg. 46.

[x] Ibid.

[xi] Ibid. Pg. 47.

[xii] Ibid. Pg. 48.

[xiii] Loren Grush, “Private space companies avoid FAA oversight again, with Congress’ blessing,” The Verge. November 16, 2015.

[xiv] Jeff Foust, “Commercial Spaceflight Industry Pushes for Another Extension of Regulatory ‘Learning Period’,” SpaceNews. April 6, 2015.

[xv] Jeff Foust, “Industry, FAA at odds over extension of “learning period” for commercial spaceflight safety regulations,” Space Politics. February 2014.

[xvi] “Commercial Spaceflight Industry Pushes for Another Extension of Regulatory ‘Learning Period’.”

[xvii] Ibid.

[xviii] Ibid.

[xix] Jeff Foust, “House Passes Commercial Space Bill,” SpaceNews. November 16, 2015.

[xx] Michael Dodge, “Who’s on your Space Vehicle? – a Legal Primer for the Changing State of Space Exploration in the United States,” American Bar Association. 2016. Pg. 4.

[xxi] Jeff Foust, “Congress Launches Commercial Space Legislation,” The Space Review. May 2015.

[xxii] Ibid.

[xxiii] Ibid.

[xxiv] Jeff Foust, “Industry committee to start work on human spaceflight safety standards,” The Space Review. October 2016.

[xxv] George Neild & Kelvin Coleman, “Industry Standards for Commercial Space Transportation,” Federal Aviation Administration. September 2013. Pg. 4.

[xxvi] Tim Fernholz, “Space tourism companies are going to write their own safety rules because the US government can’t,” Quartz. March 2017.

[xxvii] Amanda Robert, “Commercial Spaceflight Industry Faces Uncertain Legal, Regulatory Environment,” Forbes. May 2017.

[xxviii] “Space Travel: Risk, Ethics and Governance in Commercial Spaceflight.” Pg. 84

[xxix] S Hansson (2013), “The Ethics of Risk.” New York: Palgrave Macmillan. Pgs. 7–8.

[xxx] S. Priest & R. Baillie (1987), “Justifying the Risk to Others: The Real Razor’s Edge,” in 10 Journal of Experiential Education 1, pgs. 16-22.

[xxxi] “Space Travel: Risk, Ethics and Governance in Commercial Spaceflight.” Pg. 85.

[xxxii] K. Date (1992), “Myths of Nature: Culture and the social construction of risk,” in 48 Journal of Social Issues 4. Pgs. 21-37.

[xxxiii] “A Technoregulatory Analysis of Government Regulation and Oversight in the United States for the Protection of Passenger Safety in Commercial Human Spaceflight.” Pgs. 22-25.

[xxxiv] A. Ewert (1989), “Outdoor Adventure Pursuits: Foundations, Models, and Theories.” Columbus, Ohio: Publishing Horizons.

[xxxv] C. Ryan (2003), “Risk Acceptance in Adventure Tourism – Paradox and Context,” in J. Wilks, & S. J. Page, Managing Tourist Health and Safety in the New Millenium. Oxford, UK: Elsevier Science. Pgs. 55 – 66.

[xxxvi] J. F. Meier (1978), “Is the Risk Worth Taking?” in 49 Journal of Physical Education and Recreation 4. Pgs. 31-33.

[xxxvii] A. Ewert & S. Hollenhorst (1989), “Testing the Adventure Model: Empirical Support for a Model of Risk Recreation Participation,” in 21 Journal of Leisure Research 2. Pgs. 124-139.

[xxxviii] J. Atkinson (1957), “Motivational Determinants of Risk-Taking Behavior,” in 64 Psychological Review 6. Pgs. 359-372.

[xxxix] L. Sjoberg, (2000), “Factors in Risk Perception,” in 20 Risk Analysis 1. Pgs. 1-11.

[xl] J. Swarbrooke, (2003). “Adventure Tourism: The new frontier.” Oxford: Butterworth-Heinemann.

[xli] “The Evolution of the Commercial Space Launch Amendments Act of 2004.” Pg. 53

[xlii] Ibid. Pg. 54.

[xliii] D. Nelkin, (1989). “Communicating Technological Risk: The Social Construction of Risk Perception,” in 10 Annual Review of Public Health. Pgs. 95-113.

[xliv] Ibid. Pg. 55.

[xlv] “Myths of Nature: Culture and the social construction of risk,” Pgs. 21-37.

[xlvi] M. Granger Morgan (1990), “Choosing and Managing Technology-Induced Risk,” in Readings in Risk, Glickman ed., Washington: Resources for the Future, Pg. 18.

[xlvii] “Space Travel: Risk, Ethics and Governance in Commercial Spaceflight.” Pg. 85.

[xlviii] D. Krewski (2002), “Acceptable risk”, in Encyclopedia of Public Health.

[xlix] “Space Travel: Risk, Ethics and Governance in Commercial Spaceflight.” Pg. 85.

[l] W. W. Lowrance, (1976), “Of Acceptable Risk: Science and the Determination of Safety.” Los Angeles, CA: William Kaufmann, Inc.

[li] B. Fischhoff, P. Slovic, S. Lichtenstein, S. Read, & B. Combs (1978), “How safe is safe enough? A psychometric study of attitudes towards technological risks and benefits,” in 9 Policy Sciences 2. Pgs. 127-152.

[lii] J. Arnould (2011), “Icarus’ Second Chance: The Basis and Perspectives of Space Ethics,” New York: Springer. Pg. 47.

[liii] S. Jasanoff (2012), “The songlines of risk,” in Science and Public Reason. New York: Routledge. Pg. 139.

[liv] “Space Travel: Risk, Ethics and Governance in Commercial Spaceflight.” Pgs. 88, 91.

[lv] H. J. Otway (1982), “Beyond Acceptable Risk: On the Social Acceptability of Technologies,” in 14 Policy Sciences. Pgs. 247-256

[lvi] “Space Travel: Risk, Ethics and Governance in Commercial Spaceflight.” Pg. 88.

[lvii] “The songlines of risk.”

[lviii] Ibid.

[lix] John Downer (2010), “Trust and technology: the social foundations of aviation regulation,” in 61 The British Journal of Sociology 1. Pg. 90.

[lx] Ibid.

[lxi] “Beyond Acceptable Risk: On the Social Acceptability of Technologies.”

[lxii] S. Jasanoff (1986), “Risk Management and Political Culture: A Comparative Study of Science in the Policy Context.” New York, NY: Russell Sage Foundation.

[lxiii] B. Faulkner (2001). “Towards a Framework for Tourism Disaster Management,” in 22 Tourism Management 2. Pgs. 135-147.

[lxiv] S. D. Sagan (1993), “The Limits of Safety.” Princeton, NJ: Princeton University Press.

[lxv] C. Perrow (1984), “Normal Accidents: Living with High-Risk Technologies.” Princeton, N.J.: Princeton University Press.

[lxvi] “The songlines of risk.” Pg. 139.

[lxvii] Ibid.

[lxviii] “Trust and technology: the social foundations of aviation regulation.” Pg. 87.

[lxix] B. D. Goldstein (1996), “Risk Assessment as an Indicator for Decision Making,” In R. Hahn, Risks, Costs, and Lives Saved: Getting Better Results from Regulation. Oxford, UK: Oxford University Press.

[lxx] T. Pinch & W. Bijker (1984), “The Social Construction of Facts and Artifacts: Or How the Sociology of Science and the Sociology of Technology Might Benefit Each Other,” in 14 Social Studies of Science.

[lxxi] “Trust and technology: the social foundations of aviation regulation.” Pg. 95.

[lxxii] Ibid. Pg. 89.

[lxxiii] Ibid. Pg. 90.

[lxxiv] Ibid. Pg. 91.

Compromise & Conference Committees – Resolving Bicameral Legislative Differences

In order to become law, a bill must pass both chambers of Congress in technically and substantively identical form. Of course, it is not always the case that a bill “cleanly” passes both the House and Senate without amendment or differences between the two chambers. As such, the Congress must reconcile differences between their respective bills before passing the legislation to the President for signature. There are three primary ways by which the Congress achieves this – amendment exchange between the chambers, through a “Conference Committee,” or through informal negotiation.

In an “amendment exchange,” a legislative measure may be sent between the House and Senate, with each chamber amendment the amendments of the other in the hope that one will agree to the other’s proposal. Bill text may be amended between chambers in two degrees. When opportunities for amendments are exhausted, one chamber must accept the other’s position – or the legislation “dies.” Of course, the two chambers may reach agreement at any stage of the amendment exchange process if one concurs in the amendment of the other or recedes from its own amendment (particularly if that amendment is not acceptable in the other chamber).

If the House chooses to amend and pass, as amended, legislation sent from the Senate, it is sent as a “message” to the Senate. The message is privileged, with no debate on proceeding to its consideration. The legislation is then debatable, subject to cloture as it may be filibustered, and amendable – with amendments need not being germane. Generally, the “amendment tree” may be “filled” to control the scope and content of amendments. The Senate may disagree to the House amendment and either “kill” the bill or request conference; concur with the amendment and pass the legislation as amended by the house; or –if a second-degree amendment is still allowed – concur with a further amendment and send the legislation back to the House.

In the House, the Senate’s “message” is also privileged, without debate on the question of its consideration. The Senate amendment is debatable, under a one-hour rule, and amendable – with all amendments needed to be germane and debated under a five-minute rule. Customarily, the Senate message is taken up under a rule to control the proceedings, including limiting the number, scope, and content of possible amendments. Like in the Senate, the House may disagree to the Senate amendment and either “kill” the bill or request conference; concur with the amendment and pass the legislation as amended by the Senate; or – if a second-degree amendment is still allowed – concur with a further amendment and send the bill back to the Senate.

Notably, in the House, if the Senate’s amendments are non-germaine or major in scope, or fall within the jurisdiction of a House committee that had not originally considered the bill, the Speaker is often likely to refer the bill to committee for consideration. Moreover, if the Senate amendments include any authorization, appropriation, or revenue provisions that House rules require to be considered in Committee of the Whole, it is not immediately in order for the House to consider the Senate amendments. However, the House floor manager may circumvent this procedural “roadblock” by asking for unanimous consent to concur in the Senate amendments or concur in the Senate amendments with House amendments. Alternatively, the Speaker may entertain a motion to suspend the rules, or the Rules Committee may report a special rule on the bill’s consideration that makes in order a motion to concur with or without amendment.

If the chambers cannot or do not come to agreement through amendment exchange, they may request for and go to “Conference.” The “Conference Committee” is intended to enable negotiations between representatives of both chambers to find compromise on their bills’ differences. After a chamber requests or agrees to a conference, it selects Members as “conferees” to represent the body. The selection of who may participate in the conference is, understandably, strategically important. Both chambers may move to “instruct” their conferees, directing them to insist on or recede to certain positions. Instructions are not binding in either chamber. In the Senate, the “motion to instruct” is debatable and amendable; in the House, it is debated under the one-hour rule.

As Conference Committees are created to resolve differences between the chambers’ bills, conferees have no authority to change matters that are not in disagreement. Nor may they include provisions that fall outside the range of options defined in a House position at one “extreme” and a Senate position at the “other.” However, there are otherwise little-to-no rules governing procedure in the Conference Committee, in stark contrast to the various rules of procedure guiding legislative activities in the House and Senate. This enables either “formal” or “informal” practices, proceedings, and negotiations to occur in different Conference committees.

Upon conferees reaching full agreement on compromise language, a conference report is prepared which indicates how each amendment in disagreement has been resolved. The report must be signed by a majority of House and a majority of senate conferees. The report is, by rules of both chambers, required to be accompanied by a joint explanatory statement that describes the nature of disagreements addressed by conferees. The chamber that agreed to the conference normally acts first on considering the report, and the first (though not the second) chamber to consider a conference report may recommit the report to conference.

Conference reports are privileged in both chambers, unamendable, and debatable. In the House, a conference report is considered under the one-hour rule. Points of order, including against a “tainted” report in which conferees are perceived to have exceeded their authority, are permitted. However, the House can approve the conference report under suspension of the rules, which does not allow points of order on the floor; alternatively, the Rules Committee may propose that the House approve a special rule waiving any or all points of order against the report or its consideration. In the Senate, debate on conference reports may be limited by unanimous consent or cloture; waivers on points of order may be secured with a three-fifths vote threshold. If the Senate does not waive a scope point of order, errant material must be dropped, with the Senate then voting on whether to send back to the House what remains. The same applies to “Byrd Rule”-relevant provisions; if a point of order is not waived, the Senate then considers the motion of sending back to the House a proposal striking “new matter” or “new directed spending provisions.” The vote to agree to a conference report normally completes a chamber’s action on the measure.

Finally, it should be noted that differences between the chambers’ bills’ may be informally negotiated for resolution in lieu of a formal conference committee. Interested Members, their staff, or Committee staff may, as work in one or both chambers nears or reaches completion of floor action on a measure, informally compare differences between their bills and negotiate resolution to their differences. If a tentative agreement on compromise is acceptable, a conference committee is therefore unnecessary – with these compromises instead reflected and achieved through responsive amendment exchange between the chambers.

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