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Kinetic ASATs could create enormous amounts of dangerous space debris that could harm commercial satellites. (Image: National Space and Intelligence Center)

WASHINGTON — Both for the US government and on the international stage, 2023 looks to be the year of space “governance” — as a slew of initiatives launched this year to develop norms, rules and even legally binding regulations for activities on orbit come to fruition. Or not.

There are a host of open questions bedeviling national and international policy- and law-makers as they struggle to get a better grip on both the explosion of commercial players with innovative ideas for space utilization and the growing military interest in space as a tool of, and venue for, war. These range from how to limit the potential for accidental on-orbit collisions in ever-more congested orbits, to how to sort out rights to lunar landings, to how to set norms of responsible behavior for space activities by military forces in order dampen prospects of conflict.

[This article is one of many in a series in which Breaking Defense reporters look back on the most significant (and entertaining) news stories of 2022 and look forward to what 2023 may hold.]

Multiple Domestic Initiatives, Interagency Friction

In the US, a number of government agencies with fingers in the space pie are tackling all these, and other, issues, with eyes on next year for decision-making.

At the top of the food chain is the White House, via both the National Space Council chaired by Vice President Kamala Harris and the National Security Council led by National Security Adviser Jake Sullivan.

The National Security Council is coordinating Biden administration efforts to forward voluntary norms for military activities on orbit, which the US hopes will help shape opinions on the international stage. That effort has already seen some success after the April declaration of a unilateral commitment to eschew testing of destructive, ground-launched anti-satellite (ASAT) missiles began to find traction, with nine other nations following suit this year. More are expected to pick up the baton next year, following a Dec. 7 vote by the UN General Assembly to support a US-proposed resolution that calls on other countries to join in. The vote count was overwhelming: 155 for, nine against, and nine abstentions. (Unsurprisingly, China, Russia and Iran were among the nays.)

US officials are already looking at new ideas and commitments that Washington could bring to the table. One concept under interagency study is a proposal that governments refrain from “purposeful interference” with the command and control systems of other countries’ national security satellites.

Meanwhile, the National Space Council is concentrating on filling gaps and avoiding disconnects between the multiple agencies responsible for regulating the domestic space industry.

The Commerce Department’s National Oceanic and Atmospheric Administration (NOAA) regulates commercial remote sensing. The Federal Aviation Administration (FAA) regulates safety of launch and reentry of rocket bodies and spacecraft back into the atmosphere. The Federal Communications Commission (FCC) regulates domestic firms use of radio frequency spectrum, including satellite operators. Further, both DoD and NASA impose their own rules and requirements on commercial space contractors.

But a number of new types of on-orbit activities being pushed by commercial firms fall between the cracks, with no one agency having what is often called “mission authorization” authority. These include a number of potential satellite services of interest to the Defense Department, such as satellite repair, orbital refueling stations, on-orbit assembly and manufacturing, and operations in the vast reaches of space in cislunar space between the outer orbit of the Earth and that of the Moon.

A pair of 2019 Space Policy Directives issued by the Trump administration essentially set up Commerce to be the go-to agency for on-orbit missions not now regulated, and eventually establishing a new space traffic management regime to ensure the safety of the ever-more crowded heavens.

NOAA’s Office of Space Commerce subsequently was tapped to spearhead those efforts, including taking over from DoD the job of monitoring space objects and warning commercial, civil and foreign operators about collisions. That office earlier this month kicked off a pilot project, with the help of DoD, that will run through early February designed to show what can be done using only commercial capabilities. It would be surprising if Commerce does not follow up in 2023 with a formal contract for data on satellites in the geosynchronous orbit belt.

However, with the change of administration interagency squabbling about future authorities once again has been simmering behind the scenes.

In particular, the Transportation Department and the FAA have revived their interest in a piece of the regulatory pie, according to several industry and government sources. The question of FAA’s role versus that of Commerce was a hot-button issue for Congress back in 2019, and up to now lawmakers still have not moved to grant any agency regulatory powers over new kinds of commercial space activities.

Meanwhile, the FCC has been jumping into the regulatory breach, and announced on Nov. 30 a draft “notice of proposed rulemaking” that would seek comment on streamlining its own licensing procedures for new types of space activities, such as large constellations in low Earth orbit. The commission, which is independent from the executive branch, approved the notice at its Dec. 21 meeting.

So the National Space Council has a complicated job in 2023 and beyond.

First, it has to figure out what new rules should be developed. It is clear from the council’s series of “listening sessions” to gather industry input that it wants to take a “light hand” on regulations.

It is unclear, however, whether the proposal Harris has asked the staff to send her by March 7 will address the more controversial question of which agency, or agencies, will be tapped to implement new rules. And the biggest question of all is how the White House will handle the congressional question.

“We know that we’re going to have a proposal for the vice president and there will be some response from the executive branch,” Diane Howard, who director the council’s commercial operations, said Dec. 13 at the annual Galloway Symposium on space law.

She pushed back, however, at a recent Reuters report that the decision would take the form of an executive order. “We don’t know that it’s going to be an executive order,” she cautioned. “There are a number of mechanisms that are available to us, one of which an executive order.”

UN building in Geneva

UN Photo/Jean-Marc Ferré

International Norm Setting: Slowly, Slowly

The UN Open Ended Working Group on Reducing Space Threats held two meetings in 2022, and will hold two more meetings in 2023, the first of which has been scheduled for Jan. 30 through Feb. 3. The most recent meeting, Sept. 12 to 16 in Geneva, Switzerland, was widely hailed as a success despite Russian efforts to push it off the rails. The US has been active in the meeting, for example lobbying for inclusion of its ASAT moratorium.

Meanwhile, the UN Committee on the Peaceful Uses of Outer Space (COPUOS) in Vienna, Austria, will be looking at how to further implement the 21 “best practice guidelines” for ensuring the safety and sustainability future space usage approved in 2019. COPUOS this year established a follow-on Working Group on the Long Term Sustainability of Outer Space Activities to get into the nitty gritty how countries should apply the guidelines. The working group has a five-year mandate.

The State Department on July 8 issued a solicitation to US industry for inputs on implementation, noting that the guidelines “address a number of key issues, including guidance on national level policy and regulatory frameworks for space activities, safety of space operations, scientific research and development, international cooperation, and capacity-building to ensure that developing nations can establish conducive national policies for safe space operations.”

Further, UN member states will be preparing next year for the UN Summit of the Future planned for November 2024, where space also will be on the agenda. The agenda for the summit includes “a dialogue on outer space to ensure that it is used peacefully and sustainably.”

Richard Buenneke, senior space policy advisor at the State Department’s Bureau of Arms Control, Verification and Compliance, on Nov. 2 told the CyberSatGov 2022 conference that the summit will be “an important opportunity for UN member states… to take stock of a broad range of challenges to space security and sustainability.”

However, all the UN efforts likely will have to continue to struggle with Russian obstructionism stemming from Moscow’s anger at the international opprobrium it has come under following its invasion of Ukraine.