Part 2 of 4: What the March 2026 Proposal Does

By Tim Bright

Part 1 set out the Article VI obligation to require authorization and continuing supervision of non-governmental space activities, and the three sectoral licensing regimes that leave novel in-space conduct unauthorized as such. This part describes the certification the Office of Space Commerce has proposed.

I. Administration and Eligibility

The Space Commerce Certification would be administered by the Secretary of Commerce or a designee. The proposal provides that the Secretary shall consult with the Secretaries of War and State, the Administrators of the Federal Aviation Administration and NASA, and the Chairman of the Federal Communications Commission, or their designees, before issuing certifications.¹ Eligibility is limited to United States entities, and the proposal states that no fees will be assessed as part of the certification process.²

Participation is voluntary. The proposal states that United States entities “may choose to use the existing, traditional regulatory processes to license their space activities” through the FAA, the FCC, and the Office of Space Commerce’s Commercial Remote Sensing Regulatory Affairs Division instead.³

The proposal seeks to limit application requirements to avoid undue burden, while leaving the required contents dependent on the activity. The proposal requires, among other items introduced by the phrase “including but not limited to,” operator identity, proof that the applicant is a United States entity, launch particulars, a description of the space object and proposed operations, an attestation of compliance with certification requirements, and an attestation that the object is not a weapon and carries no weapons of mass destruction.⁴

II. The Decision Process

The proposal runs on a fixed clock. Upon receiving a completed application, the Secretary is to take no more than 120 days to certify or to provide a rationale for denying the application, extendable to 180 days for interagency dispute resolution.⁵

Denial is confined to four enumerated grounds: that the applicant is “unlikely to or incapable of complying” with certification commitments; unmitigable harm to national security; unmitigable risk of breaching international obligations or damaging foreign relations; and unacceptable dangers to the safety of space operations, assets, or public safety that cannot be satisfactorily mitigated by certification conditions. Each of the latter three requires both a likelihood and capacity to cause the identified harm and a determination that the harm cannot be satisfactorily mitigated by certification conditions.⁶

Consulted agencies receive 30 days and may request limited extensions. An objection must be reduced to writing, tied to an enumerated ground, and supported by a four-factor showing addressing specificity, effectiveness, necessity, and least-restrictive means. The proposal provides that generalized concerns “shall not, standing alone, prevent certification.”⁷ Unresolved disagreements escalate through deputies-level review, and a disagreement between the Secretary of Commerce and a consulted agency head that remains unresolved “will be elevated to the President.”⁸ The proposal separately states that “[t]he Secretary shall be the ultimate authority for determining whether to grant certification.”⁹

An entity may request reconsideration by the Secretary of a denial, revocation, or certification condition by submitting a written request within 21 calendar days of the action.¹⁰

III. Supervision and Revocation

The proposal states that continuing supervision and monitoring “is intended to be risk-informed and proportionate to the nature of the certified activity.” As a general matter, supervision may rely on periodic attestations, limited reporting, or other non-intrusive mechanisms. More active engagement or review may occur in response to material changes, credible indications of non-compliance, or emerging national security, foreign policy, or public safety concerns.¹¹

Failure to satisfactorily correct non-compliance “may result in a formal finding of non-compliance or a revocation of the Space Commerce Certification,” and such a finding or revocation “could lead to additional enforcement and compliance actions by associated regulators.”¹²

IV. The Incentive Architecture

The certification’s value to an operator comes from reliance by other agencies. The proposal describes how the FCC could find good cause to waive its orbital debris rules conditioned on the operator maintaining a certification, how the FAA could accept the certification’s interagency review as satisfying elements of payload review, and how the Commercial Remote Sensing Regulatory Affairs Division could accept it for disposal requirements.¹³

The proposal also states the limits of that reliance. Where an existing licensing requirement applies, it “remains applicable and controlling,” and certification “would not relieve an operator of the obligation to obtain and comply with such authorizations.”¹⁴

V. The Claimed Statutory Authority

For statutory authority, the proposal points to two provisions of 51 U.S.C. § 50702. Subsection (c)(1) makes it a function of the Office to “foster the conditions for the economic growth and technological advancement of the United States space commerce industry.” Subsection (d)(7) makes it a duty of the Director to “seek[] the removal of legal, policy, and institutional impediments to space commerce.” The proposal concludes that this authority “is sufficient to establish an opt-in, voluntary scheme.”¹⁵

The proposal also addresses its own legal status. A footer states that the document “is not meant to be binding on the public or the agency,” and the text states that because the scheme is voluntary it “may not require typical rulemaking processes.”¹⁶

Part 3 takes up the central question: whether a certification an operator may decline can satisfy a treaty provision that says such activities “shall require” authorization.

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About the Author

Tim Bright is a USPTO-registered patent agent (Reg. No. 76,894) and a J.D. candidate at The Catholic University of America, Columbus School of Law. He is not an attorney, and nothing in this series is legal advice.

Endnotes

1. Off. of Space Com., U.S. Dep’t of Com., Space Commerce Certification – OSC Proposal – March 2026, at 8 (Annex 1, § A) (Mar. 24, 2026), https://space.commerce.gov/wp-content/uploads/2026/03/Space-Commerce-Certification-OSC-Proposal-March-2026.pdf [hereinafter SCC Proposal]. This series follows the nomenclature of the proposal and the hearing record, which refer to the “Department of War.” ↩
2. Id. at 8 (Annex 1, §§ A–B). ↩
3. Id. at 8 (Annex 1, § B). ↩
4. Id. at 8–9 (Annex 1, §§ B–C). ↩
5. Id. at 9–11 (Annex 1, §§ D.1–.2, D.4.b). ↩
6. Id. at 10 (Annex 1, § D.3). ↩
7. Id. at 10–11 (Annex 1, § D.4.a). ↩
8. Id. at 11–12 (Annex 1, § D.4.b). ↩
9. Id. at 11. ↩
10. Id. at 12–13 (Annex 1, § D.4.d). ↩
11. Id. at 12 (Annex 1, § D.4.c). ↩
12. Id. ↩
13. Id. at 4, 6–7. ↩
14. Id. at 4. ↩
15. Id. at 5; 51 U.S.C. § 50702(c)(1), (d)(7). ↩
16. SCC Proposal, supra note 1, at 1, 6. ↩