On May 23, United States Senator Ted Cruz (R-Texas) convened a Congressional hearing entitled “Reopening the American Frontier: Exploring How the Outer Space Treaty Will Impact American Commerce and Settlement in Space.” The purpose of the hearing was to clarify the obligations of the U.S. government under the Outer Space Treaty (“the Treaty”), specifically in regard to the development and regulation of the rapidly developing commercial space industry.
This hearing followed the release of a draft House bill called the American Space Commerce Free Enterprise Act (FEA) of 2017, which addresses the regulation of private space activity. Response to the bill has been mixed. Writing in Space News, Mark Sundahl, a professor of law at Cleveland State University, called the bill “a fine piece of legislation” but criticized its “defensive tone” and its deferral to “best industry practices.”
In his opening remarks to the hearing, Senator Cruz, who chairs the Senate Subcommittee on Space, Science, and Competitiveness, discussed an emerging “space race” for extraterrestrial resources, such as lunar water and asteroid metals, and an increasing commercial interest in servicing satellites. During the hearing, Senators Edward Markey (D-Massachusetts) and Gary Peters (D-Michigan) echoed this anticipation of international competition, citing a recent initiative by the Indian space agency, for example, to conduct a second lunar mission. Cruz said that, in light of such developments, Congress must clarify and critically review the treaty to ensure both national security and industry certainty, and that the US “cannot afford to become complacent” on the international stage.
The hearing proceeded with a particular focus on Article VI of the Treaty, which states that government supervision and regulation must be involved in all space operations. Most of the witnesses, including James Dunstan of TechFreedom, advocated for the “lightest touch possible” when complying with Article VI. The central rational for limited government oversight is to promote industry growth and initiative, which may otherwise be inhibited by burdensome regulations. Several witnesses, including Laura Montgomery of Ground Based Space Matters, also made the point that because Article VI is not self-executing, more regulations cannot be created until Congress acts.
None of the witnesses recommended altering the treaty at this time. Several witnesses, including Peter Marquez of Planetary Resources, praised the treaty for the flexibility it provides the government in regulating the space industry. Retired Air Force Colonel and former astronaut Pamela Melroy also noted that the technology in the field is changing much more rapidly than can be accounted for in the slow process of amending the treaty and implementing new regulations. Because of this, she felt that it did not make sense to revise the Treaty at this time.
In his testimony, Michael Gold of Space Systems Loral was more critical of the Treaty. Specifically, he mentioned potential issues with Article XIII, which requires that “all stations, installations, equipment and space vehicles on the Moon and other celestial bodies shall be open to representatives of other State Parties to the Treaty on a basis of reciprocity.” Gold said that thanks to development of non-governmental spacecraft and the potential for private sector development, complying with this could result in violating domestic export laws. He also pointed out loose ends regarding the interpretation of Articles I and II related to the ownership of resources attained in space. These articles have been used by some nations to say any profits from space activities must be shared among the signees. Others would use these Treaty provisions bolster claims to free access to space resources. Matthew Schaefer, a professor of law at University of Nebraska, notes that the U.S. did this in the Space Resource Exploration and Utilization Act of 2015, which states that private parties engaged in recovering space resources have the right to any resources obtained through their efforts. Despite these criticisms, both Schaefer and Gold said that opening the treaty to revision would likely work against “U.S. interests”, and seemed to be against doing so at this time.
Beyond the Treaty itself, the witness testimonies raised a number of related issues regarding the current state of U.S. regulation of commercial space. One recurring concern was that of the regulatory uncertainty regarding payload review for space objects. Currently, there is no single U.S. agency tasked with overseeing the approval of on-orbit activity. If a company wants to launch a satellite into orbit, it must seek approval from the FAA for launch and entry, the FCC for communication with the satellite, NOAA for approval of remote earth sensing, and NASA for the issues of orbital debris. According to Michael Gold, the FAA’s Office of Commercial Space Transportation (“FAA AST”) has served as the federal entity to which private interests have gone for approval, but that agency’s payload process is incomplete for private space activities and still requires approval from numerous other agencies. Bob Richards, founder and CEO of Moon Express, Inc., which recently attained approval to conduct a robotic mission to the Moon, expressed in a witness testimony that the process of attaining mission approval was so lengthy and difficult that he felt it would not be sufficient for a growing space industry.
Several witnesses took issue with this “patchwork” regulatory system involving a mix of U.S. regulatory and Treaty obligations. The witnesses’ solutions differed in detail. Montgomery wanted to get rid of entire parts of the process by arguing that certain parts of the Treaty do not apply to industry, such as Article IX’s mandate of sustainability. Melroy, the former astronaut, emphasized the importance of space sustainability and government oversight, but argued that the most efficient short-term solution was to use government-approved “industry consensus standards.” Gold of Space Systems Loral merely wanted to expand the FAA AST’s payload review process to include “non-traditional” space activities and better enable private space endeavors. Regardless, most felt that the current regulatory system is in need of review, and generally supported making it more streamlined and industry-friendly.
The testimonies of both Melroy and Gold also highlighted the issue of servicing space satellites beyond low-earth orbit. Thanks to advances in technology, it is becoming easier and more profitable to launch objects into geosynchronous earth orbit. Currently, only NASA has the technical expertise required to service objects not in low-earth orbit, because if the process goes wrong, it can cause damage to surrounding objects and generate space debris. Melroy was cautious of unsupervised commercial attempts at satellite servicing, which partly led to her recommendation that the government and the space industry work together closely and quickly to develop reliable technical standards. Gold mentioned that his company was currently supporting DARPA’s RSGS program, which focuses on repairing satellites. Gold said that because of the cost-effectiveness and national security importance of satellite servicing, the U.S. government should be sponsoring more programs like these.
TWG has previously assisted private space operators in complying with federal law and regulations. For more information about TWG’s work related to space operations, please contact Roncevert Almond (ralmond@wicks-group.com).