'Space as Critical Infrastructure Decision' Seen Looming
A current revamp of Presidential Policy Directive 21 (PDD-21), which could mean outer space being declared critical infrastructure, is expected to be done by year's end, infrastructure policy experts told us. Proponents of such a designation say it would be a path to streamlined space industry rules, while critics warn of potentially more regulation. Asked whether it has discussed such a designation with the Department of Homeland Security, the FCC didn't comment.
Sign up for a free preview to unlock the rest of this article
Export Compliance Daily combines U.S. export control news, foreign border import regulation and policy developments into a single daily information service that reliably informs its trade professional readers about important current issues affecting their operations.
PDD-21, issued in 2013, established "a national unity of effort to strengthen and maintain secure, functioning, and resilient critical infrastructure." There are 16 critical infrastructure sectors now, including communications, dams, financial services, energy and information technology, each with a sector risk management agency, whose jobs include a sector-specific risk management plan.
Aside from the PDD-21 revamp, the Space Infrastructure Act (HR-5017) is pending before Congress, which would direct DHS to make the critical infrastructure designation for space. The bill was introduced in July by Democratic Reps. Ted Lieu and Salud Carbajal of California and Republican Reps. Ken Calvert of California and Brian Fitzpatrick of Pennsylvania. Similar legislation introduced in 2021 died in the House Science, Space and Technology Committee.
The PDD-21 rewrite seems a more likely route than legislation, given the numerous other priorities Congress has before it, said Brian Cavanaugh, Heritage Foundation visiting fellow and formerly a DHS and National Security Council (NSC) official.
The Space Foundation early this year pushed for space to be declared critical infrastructure (see 2302160051). The Satellite Industry Association hasn't taken a position, President Tom Stroup said. The Aerospace Industries Association raised red flags in a September letter to National Security Adviser Jake Sullivan. Many space-based capabilities and the infrastructure behind them are already part of different critical infrastructure sectors, such as manufacturing, communications and defense industrial base, AIA said. That makes it difficult to look at specific costs and benefits of a change in designation, and any National Security Council analysis about the costs and benefits of a possible such change should focus on specific space capabilities, like position, navigation and timing, it said. AIA said that kind of designation doesn't come with additional federal funding and thus "presents a significant resource risk to federal departments and the space industry." That designation also "opens the door to additional regulation and requirements of space industry activity," it said.
Such a designation would lead to more federal resources being available for space due to the higher prioritization space would get, said Frank Cilluffo, director-Auburn University's McCrary Institute for Cyber and Critical Infrastructure Security, said. "Our dependence upon space [economically and for national security] demands that it be prioritized," he said. Whatever agency is designated sector risk management agency for space shouldn't have a regulatory role, with NASA being a good choice, he said. He said the space agency has a history of working with commercial space operators. He said such a sector designation would likely trigger an interagency review of existing regulatory authorities, with an eye on tackling duplications. He and others said a designation itself wouldn't affect existing regulations or agencies' regulatory authority. There's some opposition, but Cilluffo said, "I don't think the status quo is going to cut it for much longer." Cilluffo was one of the authors of an April report by the successor to the Cyberspace Solarium Commission also recommending a critical infrastructure designation for space. Congress formed the commission to create a national cyberspace defense strategy.
A critical infrastructure designation also would warn U.S. adversaries that it regards space systems, including satellites, ground stations and launch sites, as a component of the nation's national and economic security "and one should be careful about attacking ... or undermining use," said Samuel Visner, Aerospace Corp. tech fellow and Solarium senior adviser. It would also be easier with a sector risk management agency to coordinate information the government and industry have about vulnerabilities, threats, means of mitigation and ongoing or incipient events, he said. Commerce's Office of Space Commerce has a space traffic coordination function, and information about threats and vulnerabilities is available from numerous government sources, he said. But the lack of one entity coordinating and keeping that information up to date is a problem, he said. "If everybody is in charge, nobody is in charge," he said.
The Heritage Foundation's Cavanaugh said there has been some advocacy from DHS and NSC for a designation, but there's fear a 17th critical infrastructure sector could dilute resources for others. NASA, if it's designated the sector risk management agency, also could be challenged to do the job with its existing resources, he said. He said aspects of space fall under so many other sectors that it might be more efficient to designate a cross-sector working group to focus on space matters rather than creating more bureaucracy.