[House Hearing, 115 Congress]
[From the U.S. Government Publishing Office]





                 REGULATING SPACE: INNOVATION, LIBERTY,
                     AND INTERNATIONAL OBLIGATIONS

=======================================================================

                                HEARING

                               BEFORE THE

                         SUBCOMMITTEE ON SPACE

              COMMITTEE ON SCIENCE, SPACE, AND TECHNOLOGY
                        HOUSE OF REPRESENTATIVES

                     ONE HUNDRED FIFTEENTH CONGRESS

                             FIRST SESSION

                               __________

                             MARCH 8, 2017

                               __________

                           Serial No. 115-06

                               __________

 Printed for the use of the Committee on Science, Space, and Technology




[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]








       Available via the World Wide Web: http://science.house.gov







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              COMMITTEE ON SCIENCE, SPACE, AND TECHNOLOGY

                   HON. LAMAR S. SMITH, Texas, Chair
FRANK D. LUCAS, Oklahoma             EDDIE BERNICE JOHNSON, Texas
DANA ROHRABACHER, California         ZOE LOFGREN, California
MO BROOKS, Alabama                   DANIEL LIPINSKI, Illinois
RANDY HULTGREN, Illinois             SUZANNE BONAMICI, Oregon
BILL POSEY, Florida                  ALAN GRAYSON, Florida
THOMAS MASSIE, Kentucky              AMI BERA, California
JIM BRIDENSTINE, Oklahoma            ELIZABETH H. ESTY, Connecticut
RANDY K. WEBER, Texas                MARC A. VEASEY, Texas
STEPHEN KNIGHT, California           DONALD S. BEYER, JR., Virginia
BRIAN BABIN, Texas                   JACKY ROSEN, Nevada
BARBARA COMSTOCK, Virginia           JERRY MCNERNEY, California
GARY PALMER, Alabama                 ED PERLMUTTER, Colorado
BARRY LOUDERMILK, Georgia            PAUL TONKO, New York
RALPH LEE ABRAHAM, Louisiana         BILL FOSTER, Illinois
DRAIN LaHOOD, Illinois               MARK TAKANO, California
DANIEL WEBSTER, Florida              COLLEEN HANABUSA, Hawaii
JIM BANKS, Indiana                   CHARLIE CRIST, Florida
ANDY BIGGS, Arizona
ROGER W. MARSHALL, Kansas
NEAL P. DUNN, Florida
CLAY HIGGINS, Louisiana
                                 ------                                

                         Subcommittee on Space

                     HON. BRIAN BABIN, Texas, Chair
DANA ROHRABACHER, California         AMI BERA, California, Ranking 
FRANK D. LUCAS, Oklahoma                 Member
MO BROOKS, Alabama                   ZOE LOFGREN, California
BILL POSEY, Florida                  DONALD S. BEYER, JR., Virginia
JIM BRIDENSTINE, Oklahoma            MARC A. VEASEY, Texas
STEPHEN KNIGHT, California           DANIEL LIPINSKI, Illinois
BARBARA COMSTOCK, Virginia           ED PERLMUTTER, Colorado
RALPH LEE ABRAHAM, Louisiana         CHARLIE CRIST, Florida
DANIEL WEBSTER, Florida              BILL FOSTER, Illinois
JIM BANKS, Indiana                   EDDIE BERNICE JOHNSON, Texas
ANDY BIGGS, Arizona
NEAL P. DUNN, Florida
CLAY HIGGINS, Louisiana
LAMAR S. SMITH, Texas


























                            C O N T E N T S

                             March 8, 2017

                                                                   Page
Witness List.....................................................     2

Hearing Charter..................................................     3

                           Opening Statements

Statement by Representative Brian Babin, Chairman, Subcommittee 
  on Space, Committee on Science, Space, and Technology, U.S. 
  House of Representatives.......................................     4
    Written Statement............................................     6

Statement by Representative Ami Bera, Ranking Member, 
  Subcommittee on Space, Committee on Science, Space, and 
  Technology, U.S. House of Representatives......................     8
    Written Statement............................................    10

Statement by Representative Lamar S. Smith, Chairman, Committee 
  on Science, Space, and Technology, U.S. House of 
  Representatives................................................    13
    Written Statement............................................    14

Statement by Representative Eddie Bernice Johnson, Ranking 
  Member, Committee on Science, Space, and Technology, U.S. House 
  of Representatives.............................................    16
    Written Statement............................................    17

                               Witnesses:

Ms. Laura Montgomery, Attorney and Sole Proprietor, Ground Based 
  Space Matters, LLC
    Oral Statement...............................................    20
    Written Statement............................................    22

Dr. Eli Dourado, Senior Research Fellow and Director, Technology 
  Policy Program, Mercatus Center, George Mason University
    Oral Statement...............................................    37
    Written Statement............................................    39

Mr. Doug Loverro, Former Deputy Assistant Secretary of Defense 
  for Space Policy
    Oral Statement...............................................    42
    Written Statement............................................    44

Mr. Dennis J. Burnett, Adjunct Professor of Law, University of 
  Nebraska-Lincoln, College of Law
    Oral Statement...............................................    56
    Written Statement............................................    58

Dr. Henry B. Hogue, Specialist in American National Government, 
  Congressional Research Service
    Oral Statement...............................................    77
    Written Statement............................................    79

Discussion.......................................................    87

             Appendix I: Answers to Post-Hearing Questions

Ms. Laura Montgomery, Attorney and Sole Proprietor, Ground Based 
  Space Matters, LLC.............................................   106

Dr. Eli Dourado, Senior Research Fellow and Director, Technology 
  Policy Program, Mercatus Center, George Mason University.......   108

Mr. Doug Loverro, Former Deputy Assistant Secretary of Defense 
  for Space Policy...............................................   110

Mr. Dennis J. Burnett, Adjunct Professor of Law, University of 
  Nebraska-Lincoln, College of Law...............................   115

Dr. Henry B. Hogue, Specialist in American National Government, 
  Congressional Research Service.................................   119

            Appendix II: Additional Material for the Record

Documents submitted Representative Brian Babin, Chairman, 
  Subcommittee on Space, Committee on Science, Space, and 
  Technology, U.S. House of Representatives......................   124

Document submitted Representative Ami Bera, Ranking Member, 
  Subcommittee on Space, Committee on Science, Space, and 
  Technology, U.S. House of Representatives......................   191

 
                 REGULATING SPACE: INNOVATION, LIBERTY,
                     AND INTERNATIONAL OBLIGATIONS

                              ----------                              


                        WEDNESDAY, MARCH 8, 2017

                  House of Representatives,
                             Subcommittee on Space,
               Committee on Science, Space, and Technology,
                                                   Washington, D.C.

    The Subcommittee met, pursuant to call, at 10:07 a.m., in 
Room 2318 of the Rayburn House Office Building, Hon. Brian 
Babin [Chairman of the Subcommittee] presiding.

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    Chairman Babin. The prayer--excuse me. The Chair is 
authorized to declare recesses of the Subcommittee at any time. 
We need prayers, don't we?
    Welcome to today's hearing titled ``Regulating Space: 
Innovation, Liberty, and International Obligations.'' I 
recognize myself for five minutes for an opening statement.
    The Outer Space Treaty celebrated its 50th anniversary just 
last month. It was negotiated at the height of the Cold War and 
reflected two very distinct philosophies: communism and 
liberty. The Soviet Union sought to prevent any non-state 
actors from operating in space. The United States, however, 
argued that space should be free for exploration and use for 
all and by all, including the private sector and individuals. 
Fortunately, the United States' position was the one accepted.
    As part of that compromise, the United States agreed, in 
Article VI of the Treaty, to authorize and supervise private 
sector space activities. When the Senate ratified the Outer 
Space Treaty 50 years ago, private free enterprise in outer 
space was an idea, but not yet a reality.
    Today, not only is there U.S. free enterprise in outer 
space, it is innovating at an unprecedented pace. American 
companies are developing and investing in technology and 
spacecraft to conduct non-traditional private sector space 
activities, such as satellite servicing, manufacturing, human 
habitation, and space resource utilization.
    Recognizing that American free enterprise and innovation in 
outer space may implicate our international obligations, 
Congress directed the Obama Administration to assess existing 
authorization and supervision authorities. Last year, the Obama 
Administration recommended that Congress expand the regulatory 
authority of the Secretary of Transportation. Well, the purpose 
of today's hearing is to inform Congress as it assesses U.S. 
international obligations in light of new and innovative 
private space activities.
    I hope it will also inform the incoming Trump 
Administration as it formulates its own positions on the topic. 
I look forward to working with the Administration going 
forward, and plan to invite them to testify in the future once 
they have developed a formal position.
    I hope that today's witnesses will identify fundamental 
national interests at stake, examine our international 
obligation to authorize and supervise space activities, expand 
on the options that we have at our disposal to meet 
authorization and supervise obligations, and help us all assess 
and understand different paths forward. The course we chart 
today may not seem very important, but in the long run the 
decisions we make will have far-reaching consequences.
    I recognize that today there is no consensus opinion on 
what should be done. I also recognize that there are many 
different ideas. Frankly, this is a good thing. This is a 
serious issue, and we should do our best to get it right, and 
that entails examining all the possible solutions.
    I have serious reservations with the Section 108 
legislative proposal. While it may be well intentioned, it is 
ill conceived. It places the burden of demonstrating 
consistency with international obligations, foreign policy, and 
national security requirements of the United States with the 
applicant, leaving the government to decide at its own 
discretion, without clear limitations, whether an activity 
should go forward. It grants expansive discretionary regulatory 
authority, essentially with the ability to regulate any or all 
aspects of private sector space activities. It also fails to 
identify or assess alternatives to a Department of 
Transportation agency licensing and regulatory construct. We 
must not just presume that a traditional agency licensing 
authority granted to the Department of Transportation is the 
best way forward.
    This hearing will be an important step as the Committee 
develops legislation that will streamline the regulatory 
process, limit burdensome government intrusion, promote 
American innovation and investment, and satisfy our 
international obligations. We must find a way to uphold our 
cherished principles of liberty and prime the pump of 
innovation. I believe that we can do this while also satisfying 
our international obligations.
    If done correctly, we can expand American prosperity and 
influence. If done haphazardly, we could smother the embers of 
creativity and diminish our leadership in space. I believe it 
is one of the fundamental space policy questions of our time.
    I want to thank today's witnesses for joining us as we 
discuss these important issues, and I look forward to hearing 
your testimony.
    [The prepared statement of Chairman Babin follows:]
    
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    Chairman Babin. And now at this time I would like to 
introduce into the record some letters that I have, and I will 
do so. I ask unanimous consent to enter into the record letters 
of the Heritage Foundation, the Competitive Enterprise 
Institute, and Tech Freedom, and a paper published by the 
Niskanen Center. These letters and the paper were shared with 
Minority staff in advance of the hearing, and without objection 
I so order.
    [The information appears in Appendix II]
    Chairman Babin. I now recognize the Ranking Member, the 
gentleman from California, for an opening statement. Mr. Bera.
    Mr. Bera. Great. Thank you, Mr. Chairman.
    Good morning, and welcome to our distinguished panel. 
Again, I want to thank the Chairman for calling this hearing. 
This is a very timely topic, and in fact, as the Subcommittee 
embarks on the 115th Congress, I think this is going to be a 
very vibrant time in how Congress, how our federal government 
and NASA approach space, so I look forward to working with you 
and making this one of the most bipartisan, vibrant committees 
and subcommittees in Congress.
    Think about where we were over 50 years ago in 1967. It was 
two years before Neil Armstrong was even going to land on the 
Moon. Yet we were thinking about some of these issues, and when 
the United States signed the Outer Space Treaty in 1967, 
thankfully, as the Chairman already pointed out, our approach 
to being open to the private sector getting involved in space 
was the one that won out. But we had no way of knowing where we 
would be in 2017, and if you think about how rapidly things 
have moved in the last decade with entrepreneurs, innovators 
moving into commercial space travel, that's the challenge for 
us at this juncture is how do we move forward.
    In 2015, we passed the Commercial Space Launch 
Competitiveness Act and directed the Office of Science and 
Technology Policy to make some recommendations to Congress, and 
what they recommended for us was an authorization and 
supervision approach that would prioritize safety, utilize 
existing authorities, minimize burdens to commercial space 
transportation, promote the U.S. commercial space sector, and 
meet the U.S. obligations under international treaties. So 
there's a lot in there.
    I think the challenge for this Committee and all of us 
moving forward is, as we look at the private sector getting 
more involved in low-Earth orbit, as we look at more 
countries--you know, take India, for example, as they're 
rapidly getting involved, how do we put together a framework 
that does protect the assets that are up there that in some 
ways acts an air traffic control managing the lanes that are 
there, minimizes the safety risks. We've got to work liability 
issues and other issues. But at the same time, we don't want to 
stifle that creativity and innovation, so you know, not easy 
issues to work through, but the issues are incredibly important 
for us to work through in order to do our jobs so we can give 
some clarity to those entrepreneurs and those that are entering 
the field but understanding that we've got to have the right 
balance between the public sector--there are certain things 
that only NASA and the federal government can do, you know, 
much like our mission to Mars. Again, you'll me say we ought to 
set that goal and get there by 2033 but that's also going to be 
a public-private partnership where we're going to be working 
amongst others.
    I look forward to the testimony. In particular, I hope some 
of today's discussions can provide some clarity on the 
following questions. What is meant by continuing supervision as 
stated in Article VI of the Outer Space Treaty? Can our 
obligations under Article VI be met by existing authorities, 
and if not, why not? And how would the U.S. government actually 
be able to enforce compliance once a mission is launched? What 
are the potential risks of regulating or not regulating non-
governmental missions that are not currently covered under 
existing government authorities? And is the U.S. government 
exposed to liabilities by granting mission authorization or 
approval? Again, I think those are some of the things that we 
need to work through.
    Again, I look forward to a vibrant 115th Congress serving 
with the Chairman and the broader Committee, and again, I think 
this is a very timely topic for where we find ourselves.
    Thank you. I'll yield back.
    [The prepared statement of Mr. Bera follows:]
    
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    Chairman Babin. Thank you, Mr. Bera. I appreciate that.
    And now I recognize the Chairman of our full Committee, the 
gentleman from Texas, Chairman Smith.
    Chairman Smith. Thank you, Mr. Chairman.
    America's future in outer space is bright. From asteroid 
mining, to private Moon missions, to satellite servicing, there 
is great promise that American commercial space companies will 
soon enjoy profits and discover scientific benefits to being in 
outer space. American visionaries stand ready to facilitate 
these amazing endeavors.
    Unfortunately, the Obama Administration issued a report 
last year that called for expansive regulations over all types 
of private space activities. The Obama Administration also 
requested authority to conduct space traffic management. The 
request does present an opportunity for Congress to streamline 
processes and enhance the strength of private sector space 
activities.
    For instance, stakeholders continue to raise concerns that 
they need certainty to attract investments and that they face 
pressing short-term launch dates and regulatory risks. We 
should address these issues and ensure that the Executive 
Branch does not stifle innovation. Going forward, it should be 
easier, not harder, for private sector companies to freely 
explore space.
    America faces a crisis of over-regulation. Regulatory 
overreach has eroded far too many liberties. To the greatest 
extent possible, we should address public policy challenges 
without creating new regulations.
    It has been eight months since the Obama Administration 
delivered their message of overly burdensome regulations to 
Congress but the public debate has shifted in the last few 
weeks. Instead of presuming that expansive new agency 
regulatory powers are needed, the conversation is shifting to 
questions of how to minimize agency regulation or avoid it all 
together. This is a good sign. It shows that the space 
community is doing the hard work necessary to develop good law 
and policy. This is no easy task, particularly when our goal is 
to empower private investments and discoveries, not impede 
them.
    Let us not forget that the Outer Space Treaty is a treaty 
of principles, with great discretion granted to the United 
States on how to implement its obligations.
    In last Congress's enacted U.S. Commercial Space Launch 
Competitiveness Act, Congress made an interpretative 
declaration of the Outer Space Treaty term ``national 
appropriation,'' codifying the right of U.S. citizens to 
legally take possession of space resources. Congress should 
keep this power in mind as we address the future questions of 
treaty compliance.
    Government space programs explore the unknown, discover new 
worlds, and develop new science and technologies. But to unlock 
the great economic potential of outer space, we need the 
ingenuity, innovation, and interests of our private sector.
    Thank you, Mr. Chairman. I yield back.
    [The prepared statement of Chairman Smith follows:]
    
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    Chairman Babin. Yes, sir. Thank you.
    Now I recognize the Ranking Member of the full Committee, 
the gentlewoman from Texas, Ms. Johnson.
    Ms. Johnson. Thank you very much, and welcome to our 
witnesses.
    Mr. Chairman, I appreciate you holding this hearing on 
regulating space. I'm really excited about the possibilities 
for the commercial exploration and utilization of outer space. 
The many proposals for new private sector space activities 
exemplify our Nation's capacity for innovation.
    However, the pace of technology often moves faster than the 
policies that should guide its development and use, and so we 
find ourselves at a key juncture as non-governmental actors and 
investors seek some policy clarity regarding their proposed 
activities in space. We have a responsibility to provide them 
with as clear guidance as possible. We also have a 
responsibility to uphold our international treaty obligations 
and, ultimately, to be good stewards of outer space.
    Just the other day, I read in the Dallas Morning News, my 
hometown paper, an article titled ``Orbiting junkyard begins to 
threaten space economy.'' What will it mean, for example, to 
have constellations involving hundreds of miniature satellites 
orbiting the Earth? How do they affect the potential for 
collisions in space, and what impact would an increasing chance 
of collisions have on future U.S. government and commercial 
space activities?
    The legislative proposal put forth by the previous 
Administration included direction such as, I quote, ``the 
Secretary of Transportation, in coordination with the Secretary 
of Defense, is authorized to examine the planned and actual 
operational trajectories of space objects and to advise 
operators as appropriate to facilitate prevention of 
collisions.'' While this proposal is one of a number of 
potential approaches, it or another measure will be needed to 
ensure that space remains a productive environment for 
scientific investigation, commerce, and government activities.
    Mr. Chairman, I want our commercial space industry to grow 
and succeed but determining what measures are needed to help 
ensure the safety and sustainability of space operations will 
require careful consideration. I hope today's hearing is just 
the beginning of a series of discussions to closely examine the 
full spectrum of issues regarding commercial space missions 
that do not fall under existing regulatory authorities. Our 
commercial sector, our Nation's space program, and our future 
in space have much to gain from us taking the time to get it 
right.
    I look forward to our witnesses' testimony. I thank you, 
and I yield back.
    [The prepared statement of Ms. Johnson follows:]
    
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    Chairman Babin. Yes, ma'am. Thank you.
    Now let me introduce our witnesses. We appreciate all of 
you being here.
    Ms. Laura Montgomery is our first witness today, Attorney 
and Sole Proprietor of Ground Based Space Matters, LLC. Ms. 
Montgomery spent over two decades with the Federal Aviation 
Administration serving as the Manager of the Space Law Branch 
in the FAA's Office of the Chief Counsel. Ms. Montgomery 
received her undergraduate degree from the University of 
Virginia and her law degree from the University of 
Pennsylvania. Thank you for being here.
    And Dr. Eli Dourado, our second witness today, Senior 
Research Fellow and Director from the Technology Policy Program 
at the Mercatus Center of George Mason University. Dr. Dourado 
is an Adviser to the State Department on International 
Telecommunication matters and has served on several U.S. 
delegations to the United Nations. He received his bachelor's 
degree in economics and political science from the Furman 
University and his Ph.D. in economics from George Mason 
University. Thank you for being here.
    Mr. Doug Loverro, welcome, our third witness today, former 
Deputy Assistant Secretary of Defense for Space Policy. In this 
role, he led departmental activities in international space 
cooperation and assessment of the national security impacts of 
commercial space activities. Mr. Loverro worked for the 
Department of Defense for over 30 years managing national 
policy for the full range of national security space 
activities. Mr. Loverro earned a bachelor's degree in chemistry 
from the United States Air Force Academy, a master's of science 
in physics from the University of New Mexico, a master's of 
science in political science from Auburn University, and a 
master's of business administration from the University of West 
Florida. Welcome.
    Mr. Dennis Burnett, our fourth witness today, is Adjunct 
Professor of Law at the College of Law at the University of 
Nebraska in Lincoln. Mr. Burnett also is Chief Counsel, 
Government and Regulatory Affairs at Kymeta Corporation. Mr. 
Burnett has done extensive work with all aspects of commercial 
space activities including preparing and obtaining one of the 
first NOAA-issued licenses for a U.S. commercial remote sensing 
satellite system. He has served three terms on the Defense 
Trade Advisory Group for the U.S. Department of State. He holds 
a bachelor's degree of science in political science and German 
from Nebraska Wesleyan University, a juris doctorate from the 
University of Nebraska College of Law, and a master of law from 
Georgetown University. Welcome.
    Dr. Henry Hogue, our fifth and final witness today, is a 
specialist in American national government at the Congressional 
Research Service where he has conducted research in federal 
government organization and reorganization, the presidential 
appointments process, and the practices surrounding 
presidential recess appointments. Dr. Hogue earned his Ph.D. in 
public administration from the American University.
    So I now recognize Ms. Montgomery for five minutes to 
present her testimony.

               TESTIMONY OF MS. LAURA MONTGOMERY,

                 ATTORNEY AND SOLE PROPRIETOR,

                GROUND BASED SPACE MATTERS, LLC

    Ms. Montgomery. Chairman Smith, Ranking Member Johnson, 
Chairman Babin, and Ranking Member Bera, Members of the 
Subcommittee, thank you for inviting me to participate today to 
address the role of Article VI of the Outer Space Treaty and 
the regulatory responsibilities of the United States.
    I respectfully recommend that the United States not 
regulate new commercial space activities such as lunar 
habitats, mining, satellite servicing or even lunar beer 
brewing for the wrong reason, namely the belief that Article VI 
makes the United States regulate either any particular activity 
or all activities of U.S. citizens in outer space.
    A misunderstanding of the Outer Space Treaty looms as a 
possible barrier to private space activity and investment 
because many claim Article VI prohibits commercial operations 
in outer space unless the government authorizes and supervises, 
which I'll refer to as regulates or oversees, those activities. 
Article VI states the activities of non-governmental entities 
in outer space including the Moon and other celestial bodies 
shall require authorization and continuing supervision by the 
appropriate state party to the treaty.
    To interpret this as forbidding unauthorized private space 
activity is wrong for three reasons. First, the treaty doesn't 
forbid private persons from operating in outer space. Second, 
it doesn't say that either all activities or any particular 
activity must be authorized. And finally, Article VI is not 
under U.S. law self-executing, which means that it does not 
create an obligation on the private sector unless and until 
Congress says it does.
    By its own terms, Article VI does not prohibit space 
operations by the commercial sector. First and most simply, 
it's not in the plain language of the provision. Instead, it 
leaves it to each country to decide which particular activities 
require regulation, how that regulation will be carried out, 
and with how much supervision. If Article VI truly meant that 
all activities had to be overseen, where would oversight stop? 
Life is full of activities from brushing one's teeth to playing 
a musical instrument, which take place now without either 
federal supervision or continuing federal authorization. Just 
because those activities take place in outer space does not 
mean they should suddenly require oversight. Conversely, 
activities regulated on Earth might not require oversight in 
space. Accordingly, if Congress hasn't said that a certain 
activity requires oversight, it doesn't.
    Next, Article VI is not self-executing, which means it is 
not enforceable federal law until Congress passes a law to 
implement it. Just as the Supreme Court said in Medellin versus 
Texas, when the Court did not let the President enforce a 
ruling of the International Court of Justice against the states 
because Congress had yet to act, Article VI's call for 
oversight requires in the U.S. system Congressional action in 
the form of legislation. Accordingly, regulatory agencies 
should not attempt to enforce this treaty provision by denying 
licenses or payload authorizations or by attempting to regulate 
that which they do not have jurisdiction over.
    What the government should not do is pass a law so broadly 
worded as to encompass all activities that could take place in 
outer space. Due process considerations of notice and 
transparency mandate that if Congress chooses to regulate space 
activity, it should identify that activity. The Supreme Court 
in criminal and First Amendment cases has stated that laws 
should be drafted so that persons of ordinary intelligence can 
tell what is forbidden and what is required, and that would be 
a good model to follow here.
    Legislating that all space activities require federal 
oversight could entrap people engaged in perfectly benign 
activities. They might reasonably believe that something they 
do all the time on Earth wasn't a space activity or operation 
of a space object subject to regulation. What is forbidden or 
required should be clear and the government must provide 
adequate notice of what has to be authorized. It would be 
unnecessarily burdensome and wasteful to regulate everything 
everyone does everywhere in outer space.
    The most certain and long-lasting solution and the one I 
advocate because it would reduce opportunities for confusion, 
misunderstanding, and regulatory overreach would be for 
Congress to prohibit any regulatory agency from denying a U.S. 
entity the ability to operate in outer space solely on the 
basis of Article VI. Thank you.
    [The prepared statement of Ms. Montgomery follows:]
    
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    Chairman Babin. Thank you, Ms. Montgomery.
    I now recognize Dr. Dourado for five minutes to present his 
testimony.

                 TESTIMONY OF DR. ELI DOURADO,

              SENIOR RESEARCH FELLOW AND DIRECTOR,

                   TECHNOLOGY POLICY PROGRAM,

            MERCATUS CENTER, GEORGE MASON UNIVERSITY

    Dr. Dourado. Chairman Babin, Ranking Member Bera, Members 
of the Subcommittee, thank you for inviting me here today to 
participate in this timely hearing on how to promote innovation 
and liberty in outer space while meeting our international 
obligations. My name is Eli Dourado and I study the regulation 
of emerging technologies at the Mercatus Center at George Mason 
University.
    Space is a domain that until now has been dominated by 
governments. In that respect, it is similar to the state of the 
internet in the 1980s. Commercial use of the internet was 
prohibited until 1989. Once commercial activity was allowed, 
the internet began to flourish and grow into the enormous 
economic and cultural force that it is today.
    Vint Cerf, one of the fathers of the internet, credits 
permissionless innovation for the economic benefits the 
internet has generated. As an open platform, the internet 
allows entrepreneurs to try new business models and offer new 
services without seeking the approval of regulators beforehand. 
Because of the First Amendment and some foresighted bipartisan 
policies put in place in the 1990s, there's little prior 
restraint on the business activities that may be tried online. 
When harms and failures occur, we address them in an ex post 
manner.
    My colleague Adam Thierer has generalized this notion of 
permissionless innovation in his book by that name. In any 
number of regulatory domains, there are serious, legitimate 
concerns that make it tempting to require innovators to seek 
approval before they proceed. While regulatory approval can 
address those concerns, it does so by dramatically slowing the 
pace of innovation. We must therefore build in some tolerance 
for mistakes, failures, and learning so that innovation can 
move forward. To a considerable extent, organic, bottom-up 
solutions will do a better job of solving these complex social 
problems without unduly slowing the pace of innovation.
    Permissionless innovation can also be applied to space. 
Congress should seek to maximize the latitude the private 
sector has to experiment with commercial space endeavors. As 
with other domains, this freedom to experiment will result in 
some mistakes and failures. Yet over the long run, 
permissionless innovation will result in faster progress and 
more robust solutions to policy problems than a precautionary 
regulatory mentality.
    To be sure, space is a unique domain. Space is an extremely 
hostile and dangerous environment, and there are clear national 
security interests to consider. Nevertheless, Americans have 
already observed the benefits of a more permissive approach to 
space technology, not least in the modernization of the Global 
Positioning System. When the Clinton Administration ended 
Selective Availability, giving civilian users access to the 
same level of granularity in GPS data as the military, numerous 
commentators decried the irresponsibility of the 
Administration's decision to allow uncontrolled access to 
higher-resolution location data on national security grounds. 
The predicted negative consequences never came to pass, and 
innovation flourished. Countless applications, from mixed 
reality to ridesharing, depend on the high-quality data this 
liberalization produced. Today, almost no one advocates 
bringing back Selective Availability. Given the closely 
controlled nature of space technology, further liberalizations 
are in order and would similarly yield higher levels of 
innovation.
    Yet there is one recent proposed policy change that is 
headed in precisely the wrong direction. Last year, the 
previous Administration reported to Congress on a framework to 
regulate commercial activity in space. The Administration 
proposed a framework in which explicit authorization from the 
Secretary of Transportation would be needed for every mission, 
which is defined as the operation of any space object. As Ms. 
Montgomery has testified, this framework is unnecessary to meet 
our international treaty obligations. It is also exceedingly 
impractical and destructive. In the future that we all are 
working toward, humanity will establish permanent settlements 
in orbit and throughout the solar system. Achieving this goal 
will necessarily entail the operation of millions of space 
objects, on each occasion triggering a need for authorization 
from the Secretary of Transportation back on Earth. This state 
of affairs is unworkable and will hinder our progress into the 
universe.
    The mission authorization framework represents the 
antithesis of the permissionless innovation my colleagues at 
the Mercatus Center and I believe is necessary for rapid 
technological development in space or any other domain. Instead 
of adopting the Obama Administration's proposal, I urge the 
Congress to consider blanket authorization for all 
nongovernmental operations in space that do not cause tangible 
harm to other parties, whether foreign or domestic, in their 
peaceful exploration and use of outer space. Such an approach 
would meet our treaty obligations while maximizing the scope 
for innovation and experimentation in space.
    I thank the Subcommittee for its interest in and attention 
to these issues, as well as for the opportunity to testify.
    [The prepared statement of Dr. Dourado follows:]
    
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    Chairman Babin. Thank you, Dr. Dourado.
    I now recognize Mr. Loverro for five minutes to present his 
testimony.

                 TESTIMONY OF MR. DOUG LOVERRO,

               FORMER DEPUTY ASSISTANT SECRETARY

                  OF DEFENSE FOR SPACE POLICY

    Mr. Loverro. Thank you, Chairman Babin, Ranking Member 
Bera, and Members of the Subcommittee. I'm pleased to join Ms. 
Montgomery, Dr. Dourado, Mr. Burnett and Dr. Hogue to talk to 
you today about the issues in question surrounding the possible 
need to regulate the burgeoning U.S. commercial and 
entrepreneurial space industry.
    I come before you as the former Deputy Assistant Secretary 
of Defense for Space Policy to provide you my view on the 
challenges of assuring continued U.S. leadership from primarily 
a national security perspective. That perspective is informed 
by a sure understanding that strength in national security is 
inextricably tied to the health and vitality of U.S. industry 
and that without a vibrant, innovative and bold commercial and 
entrepreneurial space sector, the U.S. risks falling behind 
pure competitors in the national security space realm. Given 
that by any measure, space is integral to modern war fighting, 
that's a risk we cannot allow to happen, so thank you for the 
opportunity to speak to you today.
    Let me quickly explain why this is so important. Today we 
find that space capabilities are fully intertwined into every 
aspect of U.S. war fighting from the largest major force 
conflict down to the smallest unit-level action but threats to 
those capabilities are growing and are evolving at an alarming 
rate, representing a huge range of possible attack modes 
including every known form of kinetic, electronic and cyber-
attack.
    As we in DOD analyzed this problem over the last four 
years, it became clear to us that if we were to defer or defeat 
such attacks, we would not be able to do it solely from within 
the confines of U.S. military spending nor by following the 
development timelines associated with U.S. military 
procurement. There was not enough money, and the threats were 
evolving too quickly. Luckily, we didn't have to.
    Worldwide commercial space activities today comprise nearly 
$280 billion enterprise and the overwhelming majority of that 
is from within the United States. U.S. government space 
spending, on the other hand, is one-sixth that amount, about 
$45 billion. More importantly, commercial and entrepreneurial 
space activities move more quickly and are innovating in every 
aspect of the space enterprise including mission types, 
manufacturing methods, terrestrial infrastructure, and orbital 
domains. So as we in DOD try to figure out how we would defend 
U.S. national security space interests against the threats we 
saw developing, we realized that one of the primary pillars of 
that defense would be built on the success of the U.S. 
commercial space sector. In short, our conclusion became that 
the U.S.--the strength of the U.S. commercial entrepreneurial 
space sector was a key ingredient in DOD strategy to deter 
aggression in space and to defeat those threats if it was ever 
used.
    So it was against this backdrop that in my role as the lead 
for Defense Space Policy, I began to assess what steps DOD 
specifically and the U.S. government more generally needed to 
take to assure a vibrant, innovative and bold commercial and 
entrepreneurial space sector would be there when we needed it.
    As I explain more fully in my written statement, in my 
mind, the single--the largest single threat to a thriving 
commercial space market we all seek to foster is the potential 
for lapses in spaceflight safety, which would seriously damage 
the entire commercial space industry. This is the key issue for 
us to understand. Whereas accidents in the terrestrial 
environment have impacts that are limited and quantifiable in 
economic, spatial and temporal terms, accidents in space have 
an unlimited temporal and physical dimension and effects that 
go well beyond our ability to economically quantify their 
impact. How can we even begin to assess the cost to U.S. 
national security if an errant CubeSat accidentally destroyed a 
U.S. national technical mean satellite? Would we just value the 
cost of that satellite, all the intelligence it may have 
collected over the rest of its expected life, or the cost to 
the commercial space market if we close it down for an entire 
year or two investigating the causes and then solutions of such 
an accident? And that doesn't even begin to talk about the 
resulting debris that would be up there for centuries.
    Even worse, what if that CubeSat had been launched by a 
foreign power, an ally like Japan or an adversary like Russia? 
Would the collision be viewed as an attack? And if it were the 
other way around, would Russia view a U.S. satellite that hit 
one of theirs as an attack?
    It's not my purpose here today to answer these questions. 
Instead, my point is to say that a laissez-faire approach to 
spaceflight safety has serious and non-quantifiable impacts 
that extend well beyond the impact to the investor, the 
scientist or the high school that might own the CubeSat or the 
COMSAT.
    I'm also not saying that the only way to avoid that 
potential future is to emplace a set of government regulations. 
There are many ways to skin this cat, but rest assured, we must 
take some action. The space environment is becoming crowded and 
the potential for accidents is increasing greatly. The surest 
way to harm this burgeoning industry is to not provide the 
mechanisms to assure spaceflight safety. If we want to make 
sure those measures advantage rather than disadvantage U.S. 
industry, it is time for the United States to take the lead.
    Thank you, and I look forward to your questions.
    [The prepared statement of Mr. Loverro follows:]
    
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    Chairman Babin. Thank you, Mr. Loverro.
    Now I now recognize Mr. Burnett for five minutes to present 
his testimony.

              TESTIMONY OF MR. DENNIS J. BURNETT,

                   ADJUNCT PROFESSOR OF LAW,

                UNIVERSITY OF NEBRASKA-LINCOLN,

                         COLLEGE OF LAW

    Mr. Burnett. Thank you, Mr. Chairman.
    Mr. Chairman and members of the Subcommittee, I'm here to 
present my views about how to achieve freedom of space. To me, 
freedom of space is a goal to achieve maximum freedom of action 
balanced with restraints necessary to protect important 
national interests and restraints that are not arbitrary.
    Now, freedom of space for governmental activities was 
firmly established in the Outer Space Treaty, as you mentioned 
in your opening statement, Mr. Chairman. However, freedom for 
commercial uses of space was not a foregone conclusion as it 
was opposed by the Soviet Union. The compromise that was 
reached is contained in Article VI, and you have already heard 
what Article VI provides.
    Now, that compromise was not a difficult compromise for the 
United States in 1967. There was only one commercial operator 
of settlements. That was the Communication Satellite 
Corporation, or COMSAT, and COMSAT was fully regulated by the 
Federal Communications Commission. Now, in 1984, the FCC type 
of regulation was expanded to cover commercial remote sensing 
and commercial launch services, and it could be fairly said 
these comply with the requirements of Article VI.
    Well, now we are on the cusp of a new era of commercial 
activities in outer space. We are seeing new business ideas, 
innovative technical developments, and the availability of 
funding to make these ideas possible. Imagine the innovations 
that will be enabled by the reduction of the cost of access to 
space by reusable launch vehicles.
    Now, the advent of new space activities, that is, 
activities that are not regulated by the FCC, not regulated by 
NOAA and not regulated by the FAA, the advent of these new 
activities presents us, the nation, with an opportunity to 
reexamine and rethink our national approach to regulation and 
the opportunity to consider how to remove unnecessary barriers 
to realizing the benefits of new space activities.
    We are here today, or I am here today to reexamine and 
rethink three such subjects. First, the treaty obligations. As 
you know, the treaty in Article VI requires a minimum of some 
type of authorization and supervision. I think the word 
``minimum'' here is extremely important. Authorization needs 
only to be some form of official permission or approval of an 
activity. Supervision needs only to include some type of 
monitoring on a recurring basis. The treaty does not require 
more.
    Second, the options. Congress can choose from options that 
range from regulatory-heavy to regulatory-light. Regulatory-
heavy are the existing regulatory models. Regulatory-light 
could be something as simple as a registration bottle.
    Third, what are the restraints necessary to protect 
important national interests? Now, the existing regulatory 
models provide, I believe, a cautionary lesson for trying to 
protect national security by requiring coordination and 
cooperation between numerous executive agencies and by 
requiring compliance by the applicant with unspecified national 
interest. Some of the decision criteria that are used are black 
boxes, and classification of information is sometimes used for 
can be used as a shield to protect against untethered 
discretion. The applicant must prove a negative, which is a 
logical impossibility, and the burden of forward never shifts 
from the applicant. Almost in any other circumstance such a 
process would be considered to be both arbitrary and capricious 
and lacking the fundamental balance necessary to achieve what 
we consider to be the standards of freedom. Freedom is not 
present when restraints are arbitrary.
    Now, one possible solution is to establish by legislation a 
clear list of objective decision criteria and establish a 
threshold for shifting the burden of going forward. Now, some 
examples are provided in my written testimony. Now, the 
elephant in the room is classified information. However, I must 
say that only once in my nearly 40 years of private practice 
have I encountered a situation where a security requirement 
truly precluded the resolution of a problem.
    So in conclusion, I would like to emphasize that it is in 
our national interest to reexamine and rethink our national 
approach to regulation. Our new generation of space 
entrepreneurs deserve freedom to innovate new technologies, new 
products and new ways of doing business. They deserve freedom 
from arbitrary restraints, and they deserve a process that can 
provide an authorization at the speed of business.
    Thank you.
    [The prepared statement of Mr. Burnett follows:]
    
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    Chairman Babin. Thank you, Mr. Burnett.
    I now recognize Dr. Hogue for five minutes for his 
testimony.

                TESTIMONY OF DR. HENRY B. HOGUE,

          SPECIALIST IN AMERICAN NATIONAL GOVERNMENT,

                 CONGRESSIONAL RESEARCH SERVICE

    Dr. Hogue. Chairman Babin, Ranking Member Bera, and other 
distinguished Members of the Subcommittee, thank you for the 
opportunity to appear before you today to testify on regulatory 
organizational frameworks that currently exist in federal law.
    My brief oral statement will summarize my written 
statement, which I previously submitted. This discussion is 
intended to inform your consideration of potential approaches 
to regulating space.
    I will begin with a discussion of traditional frameworks in 
which regulatory power is delegated to federal agencies. I will 
then briefly discuss four regulatory models that involve quasi-
governmental or non-governmental organizations.
    To begin with, I'll discuss traditional regulatory 
frameworks. The most prominent means by which the federal 
government compels conduct by private entities is through a 
Congressional delegation of regulatory power to a federal 
agency. In many cases, the agency is empowered to issue rules 
that are consistent with this delegation and that have the 
force and effect of law. Such rulemaking must follow statutory 
procedures that provide the opportunity for public input. In 
other instances, Congress has given a federal agency the 
authority to control private conduct through the provision of 
individual licenses. The licensee generally is required to 
comply with certain conditions in order to maintain the 
license. That summarizes the traditional regulatory regime.
    I now turn to four alternative regulatory models involving 
quasi-governmental or non-governmental entities. First, let me 
discuss government corporations. Government corporations are 
intended to perform a public purpose and are given corporate 
form to provide certain private sector-like flexibilities 
necessary to carry out that purpose. Each government 
corporation is either wholly or partially owned by the 
government. In some cases, government corporations engage in 
regulatory activities pertaining to the products or services 
they provide and the constituencies they serve. For example, 
the Federal Deposit Insurance Corporation is one such agency.
    Second, I'd like to discuss non-governmental standard 
setting. Private standard-setting entities are voluntary 
organizations that develop technical specifications for various 
reasons such as to ensure that products from different 
manufacturers are compatible with each other. In many cases, 
federal agencies then promulgate regulations in which these 
standards are incorporated by reference, thus giving them the 
force of law. The types of organizations that get involved in 
standard setting include, for example, testing laboratories, 
professional societies, and independent committees affiliated 
with trade associations. Congress has mandated that federal 
regulators incorporate privately developed standards under 
certain circumstances. Sometimes this mandate has been given to 
specific regulators such as the Occupational Safety and Health 
Administration. More broadly, federal law generally requires 
that federal agencies use technical standards developed by such 
entities. This mandate is to be carried out by consulting with 
and sometimes working with these standards groups.
    The third regulatory model I'd like to discuss entails the 
establishment of federally chartered corporation with 
congressionally sanctioned exclusive jurisdiction over an 
activity in a specific quarter of American life. This kind of 
federally chartered organization is not considered to be part 
of the federal government. Congress has not vested such 
entities with specific statutory regulatory authority or 
mandates. Rather, the entity has been charged with operating in 
a given arena consistent with private arrangements, existing 
statutes, and other legal authorities. One example of this kind 
of mechanism is the United States Olympic Committee, 
established by law as a federal corporation. The USOC is 
empowered to exercise exclusive jurisdiction over all matters 
pertaining to the participation of the United States in the 
Olympic Games and in the Pan American Games, and over the 
organization of these events when occurring in the United 
States.
    Finally, I'd like to briefly touch on a fourth model: self-
regulatory organizations. These generally encompass private 
entities formed by members of an industry in an effort to self-
regulate either because traditional governmental regulation is 
impractical or because the industry hopes to deter governmental 
regulation by demonstrating that the industry can effectively 
supervise itself. In some cases, the SRO is purely private with 
no involvement from the federal government. For example, the 
International Association of Antarctica Tour Operators was 
formed by private operators to establish procedures and 
guidelines for travel to the Antarctic. Association members 
must comply with these. The Association has been delegated no 
authority by the United States government. Other SROs are more 
significantly intertwined with the federal government. The 
Financial Industry Regulatory Authority, or FINRA, is one such 
self-regulatory body for broker dealers. FINRA was not created 
by federal law but federal law does require individual broker 
dealers to register with FINRA and comply with its rules. The 
Securities and Exchange Commission plays a significant role in 
supervising and overseeing FINRA's promulgation and enforcement 
of rules.
    This concludes my testimony. I would be happy to respond to 
questions at the appropriate time.
    [The prepared statement of Dr. Hogue follows:]
    
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    Chairman Babin. Thank you, Dr. Hogue.
    I want to thank all the witnesses for your testimony. We're 
looking forward to hearing your comments and your answers. The 
Chair now recognizes himself for five minutes.
    First, Ms. Montgomery, does authorization and supervision 
mean federal agency regulation?
    Ms. Montgomery. It usually does. As we heard from the 
Congressional Research Service, it doesn't have to. I think 
that if we were to follow the Mercatus suggestion of a blanket 
authorization, that would sort of codify the current state of 
affairs, which is that if it's not forbidden for you to do 
something, you can go do it, but I think the question of 
continuing supervision gets a little trickier because someone 
does have to go look at somebody and what they're doing and 
inspect them or monitor them in some way, so I'm not sure the 
blanket authorization gets us all the way there.
    Chairman Babin. I understand. And one other for you, Ms. 
Montgomery. One concern I hear from stakeholders of non-
traditional space activities is that they lack regulatory 
certainty. They fear that the government will inhibit some 
aspect of their operations, and wanting certainty and wanting 
regulation are two different things. How do you recommend that 
Congress or the Executive Branch put to rest these questions 
and these uncertainties?
    Ms. Montgomery. Well, I think a lot of the uncertainty 
arises out of the mistaken view that Article VI prohibits 
private activities in space unless they are authorized. I've 
heard this from people in industry, from private practitioners 
of the law, and it is not correct. The treaty doesn't say that, 
and it is not necessary that you get authorized. One way of 
looking at it is that we have space tourism now. It is not 
subject to authorization or continuing supervision and yet no 
one is concerned, and yet it is an activity, so everyone should 
rely on the fact that the treaty is not self-executing and get 
on with their business.
    Chairman Babin. Thank you.
    Dr. Dourado, in order to satisfy Article VI authorization 
and supervision obligations, the Obama Administration proposed 
the Department of Transportation have regulatory authority to 
ensure consistency with international obligations, foreign 
policy and national security interests of the United States. 
This is an extremely broad grant of authority. What is the risk 
of such a broad grant of authority and how else could Congress 
or the Executive Branch address Article VI obligations?
    Dr. Dourado. Thank you, Mr. Chairman. I think you're 
absolutely correct, this is a very broad grant of authority, 
and the only way to meet all of those criteria would be for the 
Department of Transportation to consult widely with the 
interagency. That will introduce a lot of friction, and I think 
that's the number one risk, that it's going to just slow down 
the process to such an extent that innovation cannot proceed. I 
think another very serious risk is non-transparency as Mr. 
Burnett testified that some of these rulings will be a black 
box. There's no time limit on getting a response in the section 
108 report.
    So I think the broader risk is that companies that want to 
engage in space activities will go abroad. They will seek flags 
of convenience as they have done in maritime law, and they will 
put investment in other countries instead of the United States 
in order to establish a genuine link with those countries that 
offer that service.
    So I think that blanket authorization, as Ms. Montgomery 
said, would codify the current state of affairs. This Committee 
would be, you know, well advised to hold periodic, perhaps 
annual hearings reviewing the state of commercial space as part 
of its continuing supervision.
    Chairman Babin. Thank you. Thank you very much.
    One more. To my knowledge, no state has ever lodged a 
complaint that the United States is in violation of Article VI 
obligations. We've had a U.S. company successfully receive 
payload approval for lunar missions. What exactly is the 
Article VI problem that Congress is being asked to fix, and is 
this an issue that could easily be fixed by the Trump 
Administration taking executive action? And I'm directing this 
to you, Ms. Montgomery.
    Ms. Montgomery. I am not personally familiar with how easy 
it is to prepare an Executive Order but I do think the 
Administration could direct the federal agencies under it to 
comply with the law regarding self-executing treaties and tell 
them not to deny a license or payload determination or attempt 
to regulate outside of their authority on the basis of existing 
Supreme Court case law on non-self-executing treaties.
    One caveat is, I'm not sure that the Executive Orders apply 
to independent agencies such as the FCC so I see that as a 
possible hurdle. The other option is, each of these regulatory 
agencies could issue a legal policy statement quieting the 
concerns of industry that things will be stopped on the basis 
of Article VI. The 108 report itself is clearly based on this 
mistaken assumption that it is--that Article VI stops private 
activity, and also it is based on another mistaken assumption 
that all of the Outer Space Treaty applies to all private 
activities. In fact, it does not. Where the treaty wants to 
make sure that something applies to private actors, it calls 
them out by name. It refers to, you know, the acts of the 
nationals or non-governmental entities but it only does that in 
a couple places. So it is important to realize that the 108 
report with mission authorization in it is based on two very 
flawed premises and it should not be adopted.
    Chairman Babin. Okay. Thank you so much. I've expended my 
time, and I'd like to recognize Mr. Bera at this point.
    Mr. Bera. Thank you, Mr. Chairman.
    I think one of the dangers just kind of listening to the 
opening statements is regulations are not inherently good or 
inherently bad, right? When done appropriately, they provide 
guidance and they provide some clarity, and I would imagine 
from the commercial sector, you really do want some of that 
guidance and clarity not to the extent that you stifle that 
innovation but you have an understanding of what the rules of 
the road are, and that really should be what our goal is, is 
providing that guidance but at the same time anticipating the 
challenges that might occur. An example would be, you know, I 
think, Mr. Loverro, you brought up is what does happen, you 
know, who's liable if a commercial entity launches a CubeSat 
and it smashes into another state's, you know, let's say a 
Chinese satellite or vice versa into one of our satellites. 
What's the liability there? If we give blanket authorization as 
the United States, are we held liable for that? Again, there's 
no inherent problem in trying to anticipate potential 
challenges and provide guidance and clarity.
    I do have some concerns, when we talk about this blanket 
authorization, I think, Ms. Montgomery, you talked about if we 
were able to do that, well, then if you can do something, you 
can go do it, but again, I worry about if you go do that and 
something bad happens, that's not good for the commercial 
sector because if an accident like that happens, that could 
stifle commercial innovation as well, especially if there's a 
big liability risk.
    I guess I'd ask Mr. Loverro a question. If our goal is to 
try to get that right guidance and anticipate the challenges 
without stifling the innovation, we ought to be able to do that 
and, maybe you can give us some guidance here and then maybe 
Mr. Burnett also.
    Mr. Loverro. Thank you, sir.
    Let me first say that if the purpose of this hearing is to 
figure out if the Outer Space Treaty mandates us do some 
authorization, I think we're looking in the wrong spot. I'm in 
full agreement with Ms. Montgomery and Dr. Dourado that that 
shouldn't be the basis for why we go ahead and regulate. We 
need to regulate for the good of America and for the good of 
American business and for the good of American national 
security, and I use the word ``regulation'' but I don't 
necessarily mean regulation in the narrow sense but more in a 
sense that Dr. Hogue has already introduced.
    We need to make sure that space is safe for commercial 
expansion, that space is a safe place for the United States to 
go ahead and achieve economic superiority and to maintain 
national security. Safety in space is unlikely safety in any 
other domain. Collisions at sea sink to the bottom of the sea. 
That doesn't happen in space. Things in the air fall to Earth. 
That doesn't happen in space. They are limited in time and 
they're limited in dimension. That does not happen in space.
    The piece of the first collision that happened ever in 
space are going to be up there for the next thousand years, so 
we have to be very cognizant of the fact that there are some 
rules that need to be created in order to go ahead and protect 
U.S. space activity, whether national security activity or 
economic activity, and quite frankly, not just from our own 
commercial sector but the commercial sectors of other nations 
that might have less control than we could have.
    And the last thing that I would like to see happen is for 
other nations to develop rules that we then become forced to 
follow. That is not good for our industry. We need to lead. We 
need to develop rules that are right for the United States, and 
then we need to convince the rest of the world that those rules 
are the ones they should follow. That's what we did in aviation 
and the FAA. We created the rules, and then everybody else 
followed. That's where we need to be because there's too great 
of a risk to our commercial endeavors and too great of a risk 
to our national security endeavors if we don't do that.
    Mr. Bera. Great.
    Mr. Burnett, if you want to just expand on that?
    Mr. Burnett. Yes, I really agree with Mr. Loverro about 
that. I think there's some really good reasons for having some 
form of authorization and supervision. One of them is industry, 
when they go to their regulator--excuse me--when they go to 
their financers, when they go to their insurance brokers, those 
people want some form of government authorization that they can 
rely on. Internationally, we want to be able to hold other 
nations to the same standards that we apply. And furthermore, 
the foreign commerce that's going to be developed here requires 
our industries, our new space industries, to engage in foreign 
trade with foreign nations, and if those nations have the 
impression that the United States is not living up to its 
obligation under the treaty, there could be serious trade 
problems.
    Mr. Bera. I'm about out of time, or I am out of time, but I 
would hope that on this Subcommittee we could start addressing 
some of those issues and find that right middle ground where 
we're not overburdensome but we also provide some clarity to 
the commercial sector, which will allow the commercial sector 
to thrive, and you know, let's write the rules as the United 
States.
    Chairman Babin. Thank you, Mr. Bera.
    The gentleman from California, Mr. Rohrabacher.
    Mr. Rohrabacher. Thank you very much, Mr. Chairman, and I 
would like to thank you, Mr. Chairman, for organizing this 
hearing. This is a level of discussion that we need to have 
before we actually move forward with litigation--or 
legislation, which brings litigation. Let me note that Dr. 
Dourado, you said something right off the bat and made a 
comparison which I think was very mind-expanding, for me 
anyway. You were comparing the internet to what we're doing in 
outer space. So we're comparing the science that we've achieved 
for very tiny, small things, we're comparing that same science 
to the expansion of the universe, which they told me in 
astronomy that we were learning secrets up there that apply to 
molecular structures here. It's a fascinating sort of insight 
into the way the world works.
    I have noticed that over the years as I have been trying to 
figure out how the world works that government bureaucratic 
regulation is actually the most efficient method known to man 
for turning pure energy into solid waste. So that's one truism 
that we have to deal with when we're looking at this. We don't 
want to regulate and protect us to the point that we're not 
able to do anything in space, and I believe that had the 
internet been structured and we were permitted to tax the 
internet right off the bat, we would have taxed it into 
oblivion and regulated it into oblivion.
    Yet we do know that libel laws and fraud laws are in force 
even though they're over the internet. So there's a 
relationship there that we need to establish that's a practical 
relationship but with understanding the concept that we've got 
something new; let's go get the most out of it but not throw 
away every aspect of regulation that we talk about because 
liabilities like libel and fraud are indeed part of our whole 
legal system.
    Let me just note that Mr. Loverro, you described the 
scenario where a satellite or some object that we put into 
space or someone else actually destroyed somebody else's space 
asset. I think this is a real problem, and it's called space 
debris, and I think what we're discussing today, Mr. Chairman, 
is a treaty that was actually brought about and negotiated and 
agreed upon at the height of the Cold War, at the very height 
of the Cold War when I was in a place being shot at in 1967 by 
Russian bullets, all right? And the bottom line is that if we 
can do that in 1967, to try to further space cooperation, we 
could do that today, and what we're talking about is not a need 
for necessarily more regulation but maybe a methodology where 
we can have more cooperation with people who are engaged in 
space activities, and if we could work with the Russians when 
they were the Soviet Union, we should certainly expand upon 
that today to handle exactly the same target that you're 
talking about, space debris, so that nothing that we are doing 
in space or legalizing our private sector to do in space will 
in some way inhibit other people and future generations to 
utilize space, and space debris is something I would suggest 
that, Mr. Chairman, this Subcommittee focus on and see if we 
can come up with some cooperative effort internationally to 
deal with that very same issue, and now you've got 30 seconds 
to say you're brilliant or you really don't know what you're 
talking about. So maybe we'll start down here with just a 
comment. Any comment on----
    Ms. Montgomery. I do think the liability issue is an 
interesting one that you mentioned in the litigation context 
but I don't think it legally mandates the United States to 
regulate everything.
    Mr. Rohrabacher. Right.
    Dr. Dourado. Mr. Rohrabacher, I totally agree with your 
assessment that just because we don't have to regulate 
something in advance doesn't mean that there are no regulatory 
mechanisms ex post, and I think it's very important to keep 
that distinction, and that is the distinction I have in mind 
and my colleagues have in mind when we talk about 
permissionless innovation and the ability to do something 
without ex ante approval doesn't mean that you can just get 
away with absolutely everything.
    Mr. Loverro. Sir, our time's over so I'll keep it short. 
You're brilliant.
    Mr. Rohrabacher. You're invited back.
    Mr. Burnett. I'm not going to follow that.
    Chairman Babin. All right. Time's expired. Thank you, Mr. 
Rohrabacher.
    Now the gentleman from Virginia, Mr. Beyer.
    Mr. Beyer. Well, I want to begin, Mr. Chairman Babin, 
Ranking Member Bera, thank you for doing this. This is 
fascinating, although I have to take issue with Mr. Loverro 
encouraging Mr. Rohrabacher.
    Dr. Dourado, I'm fascinated by this whole idea of 
permissionless innovation, and if I sort of think back through 
the history of innovation, whether it's Marconi or Bell or 
Edison or the internet or on and on and on, most of that seems 
to have been permissionless, although I do worry, number one, 
we have all this CRISPR X genetic technology now, especially on 
germ cells, and worry about what permissionless innovation 
might do there, and then I think Mr. Loverro in his written and 
verbal testimony spoke very clearly about the one issue that 
came to him as a Deputy Assistant Secretary of Defense about 
the collision caused debris in space and that one case, they 
had a 100 percent likelihood of a collision between a 
commercially expendable small satellite and a major U.S. 
national security asset. When we can see ahead of time that 
there're going to be real problems with space debris, as Mr. 
Rohrabacher said, doesn't that handcuff us a little bit on 
permissionless innovation? Don't we have to--can we not 
recognize that not everything can be addressed after damage has 
been done?
    Dr. Dourado. Thank you, Congressman. I agree with you that 
CRISPR is a fascinating technology and I think that 
permissionless innovation is where we will end up with that 
because it is so hard to regulate. It is something now that can 
be done in a garage by someone with minimal training, and I 
think it will have major, major benefits for the world and also 
some very serious challenges that even make me uncomfortable 
but I think that we will adapt and it's that process of 
adapting after the fact that is critical to permissionless 
innovation in any domain from CRISPR to space.
    Mr. Beyer. As long as we can recognize ahead of time that 
there may be places where we can see a challenge coming.
    Mr. Loverro?
    Mr. Loverro. Yes, sir. Thank you very much. And I'm sorry 
for encouraging Mr. Rohrabacher. I'll try not to do that in the 
future.
    So, you know, I very much want to be where Dr. Dourado is, 
to say that everything should be permissionless, but that's 
just not the way the world can work. There are some things that 
absolutely need to go ahead and have rules drawn around them. 
We see this all the time. I was sharing with Mr. Bera before 
the testimony began about what the state of affairs driving 
around San Francisco looked like in 1906 before there was any 
traffic laws, and it was pandemonium, and that was fine when 
cars were only going 5 miles an hour but if you really wanted 
to create cars that could go 60 miles an hour, you needed some 
set of rules to say which side of the road you needed to be on 
in order to go ahead and do that. We couldn't have gone 60 
miles an hour without a set of rules that said what side of the 
road to be on.
    The example that you stated clearly was a significant 
national security concern. We had a license in front of us 
under what I think is, and I agree with Mr. Burnett is an 
overstrenuous regime in remote sensing but we had a license in 
front of us, remote sensing under the current rules, that had 
no problem with remote sensing but clearly was going to go 
ahead and have an incredibly deleterious impact on a U.S. 
national security satellite without question.
    I quite frankly in front of this Committee I say I 
overstepped my authority and I went to work with that form to 
ask them to adjust their orbit, and they did because they're 
concerned American citizens as well. But if they had chosen not 
do that, I would have lost that case in court and we would've 
had the potential that those settlements were lost.
    Somebody needs to be able to have that discussion. It 
doesn't necessarily need to be a bureaucrat from the Department 
of Defense. It doesn't necessarily need to be somebody in the 
Department of Transportation but somebody needs to be able to 
just have the discussion of which side of the orbit are we 
flying and how do we go ahead and make sure that we're doing 
this to the benefit of all, and we want to have that happen 
before the accident occurs because while we can legislate 
after, we can't clean up after.
    Mr. Beyer. Very quickly, Dr. Dourado also talked about 
relaxing the access to the granularity of GPS data, and now 
it's given rise to Uber, et cetera. I talked to somebody 
recently, I think it was a geographer at the University of 
Maryland who said there's yet another level of granularity that 
would open up many new industries, and I don't remember whether 
it was from 5 meters to 1 meter or 3 meters to 2 inches but do 
you have any comment from a defense perspective?
    Mr. Loverro. Certainly. I was a huge advocate on the DOD 
side to go ahead and loosen all restrictions on imaging. The 
rest of the world's going to do it anyway. We might as well be 
in the lead. It made no sense. While there may have been some 
time in the past where it made sense, it made no sense, and 
quite frankly, at the very end of the last Administration, I 
convinced the intelligence community of that very thing, and so 
we're hopefully on our way to do that.
    Mr. Beyer. Thank you very much.
    Thank you, Mr. Chairman.
    Chairman Babin. Yes, sir. Thank you, Mr. Beyer.
    Our next questioner is the gentleman from Oklahoma, Mr. 
Bridenstine.
    Mr. Bridenstine. Thank you, Mr. Chairman.
    I wanted to see if I could get consensus with you, Mr. 
Burnett and Ms. Montgomery, because I think there's maybe some 
inconsistencies regarding the self-executing concept that Ms. 
Montgomery I think brought up, which I think is really 
important.
    You mentioned that we do have to provide authorization and 
continuing supervision although it can be very minimal, which I 
think would be of course appropriate. She mentioned that for 
these non-traditional space activities, habitats, rendezvous 
and proximity operations for maybe orbital servicing or 
maneuvering satellites, station keeping, she suggested that 
maybe we don't have to do anything under the Outer Space Treaty 
because it's not self-executing, that authorization and 
continuing supervision is sufficiently ambiguous that makes 
bodies like this have to act, and since we haven't acted, we 
don't have to regulate those programs. Is that correct?
    Mr. Burnett. This is an extremely complicated subject.
    Mr. Bridenstine. Sorry.
    Mr. Burnett. I mean, I've heard discussions by legal 
scholars that are totally confusing but I think here what we're 
talking about and the difference between what Laura and I are 
talking about is I'm talking about the obligation under 
international law that the United States government has.
    Mr. Bridenstine. So that might not be a treaty, it could 
just be norms of behavior that have been established over time?
    Mr. Burnett. It could be, but in this case, it is in the 
treaty in Article VI. That's an obligation of the United 
States. That is not an obligation on private actors. There is 
no U.S. law that says you have to comply with Article VI.
    Mr. Bridenstine. But under Article VI, correct me if I'm 
wrong, we, the U.S. government, have responsibility for those 
private actors, which is seemingly self-executing because that 
is not ambiguous.
    Mr. Burnett. Again, it's self-executing in the sense that 
it is a requirement on the U.S. government. It's not a 
requirement on a private entity.
    Mr. Bridenstine. Okay. So do you agree with Ms. Montgomery? 
Let's do that.
    Mr. Burnett. In part.
    Mr. Bridenstine. Okay. Did you want to address this, Ms. 
Montgomery?
    Ms. Montgomery. Yes. I would suggest that we should 
consider whether it's even self-executing on the U.S. 
government because it speaks of future activities, and the 
Supreme Court law that we see on that issue has us look at 
whether something has to take place in the future even when 
it's directed at the government itself.
    Mr. Bridenstine. And I heard you use the example of 
tourism, that we've been doing that and there is no 
authorization or continuing supervision. I would argue that 
there has never been a tourist that launched on a commercial 
rocket but only government-owned and -operated rockets, which 
puts it at a different level.
    Ms. Montgomery. Dennis Tito was a private person but I like 
your----
    Mr. Bridenstine. But he was on a Soyuz rocket, correct, a 
Russian Soyuz rocket?
    Ms. Montgomery. An American on a Soyuz rocket, a private 
American. But I do like your point about the levels because it 
goes to the question of whether something is important or scary 
enough to be regulated, and I think mining is a great example 
of that. Here on Earth, mining is dangerous. There's cave-ins, 
there's landslides, there's emissions, there's runoff, your 
neighbors get hurt, you know, bad things can happen from 
mining. But if you've got a robot mining an asteroid far away 
from everyone else, do you really need to supervise that or 
authorize that?
    Mr. Bridenstine. So when you talk about a robot mining an 
asteroid far away, that in my opinion probably doesn't need any 
regulation, but when you talk about a robot servicing a 
satellite in low-Earth orbit or even geostationary orbit and 
that robot of course is doing rendezvous and proximity 
operations, and of course, we have threats all around the 
world--Russia, China--that would claim that that would be a 
threat to their sovereign assets in space, and of course then 
as Doug Loverro has correctly identified, that gets the 
Department of Defense involved immediately along with the State 
Department, and according to your testimony, you suggested that 
the FAA can override the Department of Defense and the State 
Department for these non-traditional space activities because 
you said in your testimony that the FAA has the ability to make 
foreign policy apart from the State Department and could 
override them. Is that correct?
    Ms. Montgomery. I did say that, but one thing to keep in 
mind is that the FAA does not have authority on orbit so it 
could only override it for launch and reentry where it has 
authority, not where it----
    Mr. Bridenstine. So who has the authority in orbit?
    Ms. Montgomery. On orbit for rendezvous and proximity 
operations, right now, no one does, but that's okay under 
Article VI.
    Mr. Bridenstine. Okay.
    Ms. Montgomery. I don't disagree with my colleagues that if 
you have an actual safety concern----
    Mr. Bridenstine. So let me ask you----
    Ms. Montgomery. --you can regulate but it's not because of 
Article VI.
    Mr. Bridenstine. Would the State Department permit that 
launch to take place if the FAA authorized it and there is a 
risk--again, it wouldn't be our risk but it would be the 
Chinese or the Russians claiming that there's a risk to their 
sovereign assets, and of course, that starts the negotiating 
process. Would the FAA override that whole negotiating process? 
The important thing that I think we need to take away from this 
is that we have to have a mechanism to initiate the interagency 
process that ultimately results in an authorization, and Mr. 
Chairman, I know I'm out of time. If there's an opportunity to 
do a second round, I'd be very grateful.
    Chairman Babin. Thank you, Mr. Bridenstine.
    Now the gentleman from Colorado, Mr. Perlmutter.
    Mr. Perlmutter. Thanks to Drs. Babin and Bera.
    Just a couple comments and then some questions. So Mr. 
Bridenstine and I are often on the same page on this kind of 
stuff, and we're on the same page again. But I do want to 
respond to a couple of partisan shots that were taken early on 
in statements, and you know, Dr. Babin said couldn't something 
be easily done fixed by the Trump Administration. I'm not sure 
anything can be done easily by the Trump Administration because 
they're taking so much time worrying about Russia, which 
Professor, is the elephant in the room, okay? So having said 
that, as a lawyer, you know you say freedom but there is no 
freedom in chaos and there has to be some organization here, 
and to you, Ms. Montgomery, you talked about brushing teeth, 
okay? I'm glad we're not regulating brushing teeth but you do 
need regulations for safety at the intersection down the block 
so that you're not in a crash and you have to have regulations 
as to property. So the title to my home, you know, we don't 
need the Wild West where somebody can come in and bump me out 
of my home and say well, wait a second, there's no regulation 
to title, you don't own it because the Constitution of this 
country ensures property rights, and so when you're talking 
about the robot on some distant asteroid, you know, maybe we 
don't need OSHA rules as to that robot but we do need rules as 
to the property because my clients always wanted to know that 
if they were going to invest something that they were going to 
own it. So that's my rant for a second.
    And to you, Professor, I would just say I agreed with your 
sort of synopsis because Article VI has two other sentences 
besides just the one that Ms. Montgomery read, which I thought 
you did a very nice job trying to interpret that sentence but 
as a lot of judges would have said to me, nice try, that you 
don't quite get there. There is some level between the Wild 
West and a police state where we need some level of regulation, 
and we do have that responsibility under Article VI.
    And so Professor, you talked about a light touch or a heavy 
tough, or regulatory heavy and regulatory light. I mean, where 
do you really think we should be? Because we don't want to stop 
innovation here but we also need to be able to protect property 
rights and safety and defense. So the floor is yours, sir.
    Mr. Burnett. Well, I actually prefer the regulatory light 
approach but I agree with you, there are certain things that we 
need to protect, and I think we can do that. I think we could, 
for example, have a registration kind of authorization where 
the actor or the proposed actor in space would register their 
activity, and I think you can define what that activity is. 
It's operation of a space object or it's the building of a 
facility on the Moon. I mean, those are quite clearly covered 
by the treaty. Define those and say okay, as soon as you 
register, you're authorized, and then you can provide the 
authority for the President or whoever you give the authority 
to to step in under certain circumstances and revoke that 
authorization if certain criteria are met but those criteria 
have to be clear. They can't be ambiguous and they can't be 
arbitrary.
    Mr. Perlmutter. Okay. Ms. Montgomery, I mean, how as a 
lawyer would you go about protecting your client's property 
rights after they've spent $100 million to get to Asteroid X to 
start mining, and let's say the Russians say wait a second, 
that's ours? What are you going to do?
    Ms. Montgomery. I would agree with you.
    Mr. Perlmutter. Good. Thank you.
    Ms. Montgomery. Because the treaty does have a rather scary 
provision in Article II in which it forbids national 
appropriation of objects in outer space. Fortunately, to some 
extent, that was cured by the Commercial Space Launch 
Competitiveness Act of 2015, but there are a lot of legal 
scholars out there who claim that it forbids private property. 
I do not agree with them, and I completely agree with your 
perception that there's a need for agreements and rules of the 
road usually from governments in property-right areas so that 
people can have title, so that they can get collateral, so that 
they can have certainty and plan for the future, and I do think 
that there are legal theories that would support private 
property in outer space even further than was taken in 2015 by 
this Congress. So in that respect, I'm in agreement.
    On the Article VI, if I could, the point I'm making is a 
narrow legal one. We might see a need to regulate something but 
it should be the normal approach that Congress takes to whether 
there's a need to regulate something on the ground. Is there 
someone at risk? Is there a safety problem? Not just because 
Article VI says we have to regulate everything. It doesn't, and 
we shouldn't.
    Mr. Perlmutter. No, and I agree with that, but I think 
given safety and property, there's got to be some role, and I 
think that that article does require that role, and that's kind 
of why I was agreeing with that light touch versus heavy touch, 
and I yield back to the Chair.
    Chairman Babin. Okay. Thank you.
    And I must add that I didn't think I was firing a partisan 
shot when I said that I was looking forward to working with 
this new Administration when they develop a formal position on 
space.
    Mr. Perlmutter. It wasn't you, it was Chairman Smith when 
he said the Obama Administration blah blah blah.
    Chairman Babin. Okay. All right.
    Let's see. The gentleman from Arizona, Mr. Biggs.
    Mr. Biggs. Thanks, Mr. Chairman. Thanks to each of the 
panelists for being here. This has been very interesting.
    Dr. Dourado, you talked about the development of the 
internet and permissionless innovation, and you basically 
talked about ex post manner of remedies for any basic liability 
or damage that might have occurred in the development of the 
internet. How do you see that working in space? Tell me about 
that. Is an ex post remedy always the best remedy?
    Dr. Dourado. Well, Congressman, thank you for the question. 
I think it needs to be combined with many other steps. So first 
I would say that I would like the U.S. government to provide as 
many informational resources as possible to private actors in 
space in order to prevent accidents in the first place. So 
there already is an active involvement between--collaborations 
between satellite operators to pull data on space situational 
awareness, and to the extent that the United States is willing 
to supplement that information or provide information about 
best practices and so on, in order to prevent harms in the 
first place, I think that that would be welcome. I think second 
would be welcoming and respecting the self-determination and 
self-regulation that is being already occurring in space. 
Third, I think courts are a very general--general fallback 
mechanism for when prevention is inadequate. We apply court 
decisions to so many other aspects of our lives, space is 
surely a unique domain but is it really so special that courts 
are not competent to address the harms that arise there, and I 
would submit that perhaps not. Perhaps courts can play a useful 
role in the--in ensuring that space is as safe possible.
    Mr. Biggs. And Dr. Dourado, courts don't always act ex post 
the issue as we heard earlier Mr. Loverro talking about the 
incident. It was taken care of outside the court, it was 
cooperative and collaborative in nature, but there are remedies 
ex ante, potential incidents as well. So I assume that we would 
all agree that we don't necessarily like litigation, having 
been a trial lawyer myself, but I actually liked it. But it 
isn't always necessary to partake in that.
    So the other thing I wanted to ask you, Dr. Dourado, and 
I'm going to quote from your statement. ``I urge the Congress 
to consider blanket authorization for all non-governmental 
operations in space that do not cause tangible harm to other 
parties, foreign or domestic, in their peaceful exploration and 
use of outer space.'' I am interested in the term you used, 
``tangible harm,'' and I wanted you to expand on that, please.
    Dr. Dourado. Sure. The reason I used that term is that 
Article VI refers to potential harm, and I think that that is a 
very expansive term and could be used to prohibit absolutely 
anything. Anything in space is potentially harmful. And what 
Article--what the Outer Space Treaty would require would be for 
the United States to consult as appropriate where we cause 
potential harm to the activities of other state parties. And so 
simply deeming it not appropriate to consult every time there's 
potential harm but not tangible harm is within the scope of 
Congress's authority.
    Mr. Biggs. Thank you.
    And Mr. Loverro, I'm going to quote you now. You said 
``There are many ways to skin this cat,'' and so I'd like you 
to, if you would, explain your preferred policy recommendation 
to this Committee.
    Mr. Loverro. Yes, sir. Thank you very much.
    I think I'm in very strong agreement with Mr. Burnett and 
some of the things that Dr. Hogue has said here. I do believe 
that we need some very basic safety regulation that would 
ensure that we don't have unmitigated collisions in space, and 
that--as a former private pilot, if I was flying by visual 
flight rules, I knew there were certain altitudes I could fly 
at and certain altitudes I couldn't fly at. If you're an 
unguided small sat, then you should stay below the orbit of the 
Space Station because otherwise you have the potential to hit 
it, and that should be a simple rule that doesn't require 
regulatory oversight. It's simply a rule that everybody knows 
you can follow.
    Mr. Biggs. Are you suggesting something akin to filing a 
flight plan?
    Mr. Loverro. Not so much a flight plan but the knowledge 
that a rule exists, certainty of what rules exist, and what 
rules do not exist, rules that you have to follow, and that 
allows then the authorization and registration that Mr. Burnett 
talked about to occur because you now will register within 
accordance of those rules. This doesn't require a government 
entity now to go ahead and give permission. It simply provides 
a set of rules that exist to ensure safe spaceflight.
    Mr. Biggs. So you would be saying that by filing something, 
registration basically, that that meets the authorization 
requirement of section 6?
    Mr. Loverro. Right. Well, as I said earlier, I'm not a 
lawyer and I don't actually believe that what drives us should 
be section 6.
    Mr. Biggs. Okay.
    Mr. Loverro. I think what drives us should be what's good 
for America.
    Mr. Biggs. Thank you.
    Thanks, Mr. Chairman.
    Chairman Babin. Okay. Thank you.
    It's been requested, and I think we'll grant an extra two 
minutes for questions for whatever membership would like to do 
so, and so Mr. Bera, I'd like to call on you.
    Mr. Bera. Great. Thank you, Mr. Chairman.
    Chairman Babin. Oh, okay. Hold on. Let me back up because 
I'd like to recognize myself first--I apologize--as the 
Chairman. Sometimes I forget my leadership position here.
    Mr. Burnett, in the Outer Space Treaty and the Liability 
Convention, the United States agreed to be liable as a 
launching state. This raises concerns about whether the United 
States should impose more regulation on the private sector in 
order to protect against liability. How could bilateral 
agreements and reciprocity mechanisms be used to mitigate 
against liability for the United States as a launching state?
    Mr. Burnett. Well, I'm not sure that the activities we're 
talking about here really raise any serious issues of 
liability. Now, they might in the future. But if you look at 
what we've done with our responsibility for liability in the 
launch area, we have a requirement for insurance, but that 
requirement doesn't extend to satellites that are communication 
satellites. It doesn't extend to remote sensing satellite 
because the risk of some liability really occurs on the launch, 
it doesn't really occur in space because on the launch you've 
got a potential of absolute liability but once you're in space, 
you're in the fault regime, and when you're in a fault regime, 
you have to prove that there's been negligence or something 
like negligence, and the liability is a national liability, and 
so the issue of the liability of one nation to another nation--
it's not from one nation to a private party--becomes a 
political issue.
    Chairman Babin. Right.
    Mr. Burnett. So there are other ways to solve it other than 
requiring insurance or posting a bond or something like that.
    Chairman Babin. Okay. Thank you.
    And just one more. Ms. Montgomery, is the United States 
liable for all private sector activities under the Outer Space 
Treaty?
    Ms. Montgomery. I do not believe that is the case. Under 
both the Outer Space Treaty and the Liability Convention, we 
see that a country is liable if it is a launching state, and 
there are only four ways to be a launching state. It's going 
from your territory, your facilities, the government is 
procuring the launch, and then there's liability for private 
actors which take place off the ground, and as Dennis said, 
that's fault-based. But--so there's limits on what activities 
United States would be liable for, and it's not for everything.
    Chairman Babin. Okay. Thank you.
    Now I'd like to call on the gentleman from California, Mr. 
Bera.
    Mr. Bera. Thank you, Mr. Chairman.
    A quick question, Mr. Loverro. Several stakeholders have 
cited the interagency review process for commercial remote 
sensing licensing as a process that's led to undue delays, 
stifled innovation, economic capabilities and commercial 
operations, and one of the reasons why we shouldn't--the 
interagency review should not be any part of this mission 
authorization approach. Is this a valid concern? If so, why? 
And if not, why not?
    Mr. Loverro. So sir, I will tell you that I think it is a 
valid concern that that licensing regime has stalled 
innovation, and quite frankly, again, it goes back to what Mr. 
Burnett said. The black box that went in was undefined and 
people within government, all right-minded, mind you, defined 
it as they would, and I personally worked against that in order 
go ahead and make that free, to try to go ahead and truly get 
down to the concerns that Congress had expressed in the 
statute, which is show me that there's a true national security 
harm and then we should go ahead and regulate or prohibit but 
otherwise don't regulate or prohibit.
    I think this is the same problem we're dealing with here. 
Interagency review is important. The interagency has a 
different perspective. But that interagency review needs to be 
bounded. We can't just tell the interagency you have authority 
to do this and leave it up to them to decide on what basis they 
will make those decisions because we bureaucrats tend to go 
ahead and accumulate power that we were never intended to have.
    So I think we need to be clear. Your concern is a safety 
concern. Make sure there's no collision. Your concern is this 
concern. Let's be very clear about what we're giving them 
authority to do and then allow that interagency process to do 
that within those limited bounds.
    Chairman Babin. Thank you, Mr. Bera.
    Now I'd like to call on the gentleman from Oklahoma, Mr. 
Bridenstine.
    Mr. Bridenstine. Mr. Chairman, I have a letter here from 
Dr. Mark Sundahl I'd like to enter into the record. He's a 
Professor at the Cleveland Marshall College of Law.
    [The information appears in Appendix II]
    Chairman Babin. That'll be noted.
    Mr. Bridenstine. Okay. I wanted to bring to the attention 
of the panel here, and I know there's agreement and 
disagreement maybe about how Article VI should be applied.
    Dr. Sundahl disagrees with the panel. I like your position 
better, Ms. Montgomery, quite frankly, but one of the things he 
says is, ``However, the need to adopt a bill''--he's talking 
about some kind of bill for starting an interagency review 
process--``is equally driven by industry demand for regulatory 
clarity,'' and I would say not just regulatory clarity but 
certainty and permanence so from one Administration to the next 
there's not this ambiguity.
    And your testimony, Ms. Montgomery, clearly indicated the 
same thing when you say ``However, since the issue of what 
Article VI means has created legal and regulatory uncertainty, 
Congress could lay that uncertainty to rest with a directive to 
regulatory agencies to abstain from using the lack of federal 
oversight of a particular activity as a reason to deny a 
payload review.'' So we're talking about a directive to 
regulatory agencies to abstain from denying a payload review, a 
launch, a reentry license or authorization for satellite 
transmissions or remote sensing.
    Mr. Chairman, I fully agree with this, and if we can get 
that kind of certainty that creates the agencies from 
abstaining from those kind of activities on these non-
traditional space activities, I fully support it. One of the 
challenges that is there, Ms. Montgomery, you say there are 
clear advantages to this path. It would of course create 
certainty, which would be good. We want that certainty, which 
is helpful to industry's quest for innovation and investment. 
So there is currently uncertainty. I think everybody agrees 
with that. That uncertainty is creating a challenge to 
innovation and of course capital investment, which is what Ms. 
Montgomery said here.
    The question is this: if we can't pass this bill that makes 
these agencies abstain from denying these activities, what do 
we do then? At that point, do we just accept the limitation on 
innovation? Do we just accept the fact that it's going to 
preclude capital formation? That's my question, Ms. Montgomery.
    Ms. Montgomery. No.
    Mr. Bridenstine. We don't accept it?
    Ms. Montgomery. We don't accept it.
    Mr. Bridenstine. But we'd have another approach?
    Ms. Montgomery. Yes. The fact of the matter is that my 
recommendation is basically codification of the existing state 
of the law. We go look at the Supreme Court opinions and we 
apply them correctly and properly and knowingly, and say look, 
we can't stop you from going because we don't have a self-
executing treaty here.
    Mr. Bridenstine. So Mr. Loverro, what would the State 
Department or the DOD have to say about that?
    Mr. Loverro. Sir, I think we would be concerned about that 
kind of approach. While I am absolutely 100 percent in favor of 
innovation and experimentation in space, there are implications 
that transcend our Article VI treaty obligations and rather go 
ahead and move into things like the United Nations Treaty and 
the need to go ahead and practice secure defense, the need to 
avoid harm to other nations' property. We have requirements 
throughout our landscape that assure that actions the United 
States take doesn't harm other nations, and in this case, 
actions we take in the commercial world doesn't harm other 
commercial operators.
    I think--again, I am very much of the mind that we need to 
do as little regulation in this realm as possible but we do 
need to assure that our actions don't harm our own companies, 
our own national security or interest of other nations.
    Mr. Bridenstine. Thank you, Mr. Chairman. I yield back.
    Chairman Babin. You're welcome.
    And now Mr. Beyer.
    Mr. Beyer. Thank you, Mr. Chairman. I think it is pretty 
cool that we have two doctors leading this Subcommittee, on the 
Science Committee. That's a good thing.
    It seems to me that the whole idea of this hearing was 
trying to figure out how we respond to the spirit and letter of 
Article VI, you know, light regulation, heavy regulation, 
permissive innovation and all that. I was fascinated by 
something in Mr. Burnett's testimony, and this goes back to 
1967, and let me quote.``Ambassador Goldberg used the term 
`self-executing' to apply to provisions of the treaty that are 
to be understood to be subject to no further conditions and no 
further refinements such as Articles IV and VI, or IV and V. 
Ambassador Goldberg distinguished these provisions, Article IV 
and V, with other provisions of the treaty that are understood 
the statements of general principles, principles that state a 
worthy purpose, that need further study, exploration and 
elaboration to develop the rules to govern the use of outer 
space. Following this line of reasoning, only the treaty 
provisions that were understood not to be subject to further 
refinements should be considered as provisions that are 
required conditions of the authorizations required by the 
treaty.''
    If I read all this, does that mean that Article VI is now 
moot, irrelevant and we didn't need this hearing at all?
    Mr. Burnett. In my interpretation, the answer to that is 
no, Article VI is one of those provisions that we've agreed is 
going to apply immediately, just like the obligation not to put 
in orbit nuclear weapons, not to put military facilities on the 
Moon or other celestial bodies. I think Article IV falls into 
that category. I think there are other provisions in the treaty 
that clearly were identified by Ambassador Goldberg to be 
things which we are going to study and that we hadn't really 
reached a consensus on how to go forward on those.
    Mr. Beyer. And that would be Article VI?
    Mr. Burnett. No, that would not be Article VI.
    Mr. Beyer. Not Article VI? Okay.
    Mr. Burnett. Correct.
    Mr. Beyer. All right. Great. Thank you very much.
    Mr. Chair, I yield back.
    Chairman Babin. Yes, sir. Thank you.
    Now I'd go to Mr. Biggs, two minutes.
    Mr. Biggs. Thank you, Mr. Chairman.
    Chairman Babin. Yes, sir.
    Mr. Biggs. I feel bad for Dr. Hogue because you've been--I 
want you to know your testimony was not ignored so I have a 
question for you, sir. I saved it for my last effort.
    You talked specifically about non-governmental 
organizations that regulate certain conduct and activities such 
as the International Antarctic Trade Organization and FINRA. My 
question for you is, can you describe whether those have been 
successful achieving their organizational ends?
    Dr. Hogue. I don't have a good answer for you on that but 
I'd be happy to go back and provide that after the hearing.
    Mr. Biggs. Well, thank you. You've set me up to move right 
on over to the rest of the panel, which is, is there any 
organized cooperative or collaborative effort to address some 
of the issues we've been talking about today, internationally, 
that you're aware of, and if so, can you please describe those 
briefly? And I guess we'll just start with--several of you are 
nodding your heads. Ms. Montgomery first, please.
    Ms. Montgomery. Yes. The U.N. addresses a lot of the debris 
issues and has issued guidelines on them. There is also an 
industry association, the Space Data Association, that 
coordinates amongst themselves as to--so as to make sure they 
don't bump into each other and cause debris.
    Mr. Biggs. Dr. Dourado, in our previous exchange, you 
mentioned, essentially I'll say transparency from governmental 
organizations as to where their space debris or space 
activities are. Can you elaborate on that, please?
    Dr. Dourado. Certainly. The Department of Defense currently 
has much higher-resolution data on space situational awareness 
than does the Space Data Association that Ms. Montgomery 
referenced, and I think it would be useful for the U.S. 
government to share some of that data with the private sector 
in order to improve their capabilities.
    Mr. Biggs. Thank you.
    Mr. Chairman, I'd ask that the witnesses be allowed to 
answer the questions.
    Chairman Babin. Yes.
    Mr. Biggs. Thank you.
    Mr. Loverro?
    Mr. Loverro. Yes, sir. Thank you.
    As Ms. Montgomery said, there are several activities under 
sponsorship of the U.N. One of them that my office was heavily 
involved in is called CPUOS, the Committee on the Peaceful Uses 
of Outer Space, that were trying to go ahead and look at what 
kind of rules would we need to use internationally to guide our 
use of space. I found it quite frankly very unfortunate that 
the United States had not established its own rules first that 
we could then take to CPUOS and convince others to use. We had 
done this in the debris guidelines that were mentioned earlier. 
NASA developed a set of standards, guidelines, on orbital 
debris that we then took as a nation to CPUOS and convinced the 
rest of the world they should follow. That's good for the 
United States. We should do it again here. We should have a 
position in CPUOS other than to say we have no position because 
that leaves the floor open for others to go ahead and insert 
their position.
    Mr. Biggs. Thank you, Mr. Chairman.
    Chairman Babin. Yes, sir. Thank you.
    And now I'd like to call on the gentleman from Florida if 
you have some questions for 2 minutes.
    Mr. Webster. Thank you, Mr. Chairman.
    Ms. Montgomery, in the Outer Space Treaty, is the United 
States liable for all activities, private activities?
    Ms. Montgomery. No, sir, it is not. It has to be a 
launching state or it has to be internationally responsible for 
damage on orbit. So there are limitations to that. You have to 
be the territory or facility from where an object is launched 
or you have to be procuring it, and if those criteria are not 
satisfied, then the United States is not a launching state and 
not liable.
    Mr. Webster. Do you have any concerns about that?
    Ms. Montgomery. I think that if the United States is not 
liable, then the private actor will be liable, so whoever is 
damaged will be made whole by bringing a suit against the 
actual causer of the damage just like in the rest of life.
    Mr. Webster. Would there be a need for a statutory 
provision in order to accomplish that?
    Ms. Montgomery. No, sir.
    Mr. Webster. Thank you.
    I yield back.
    Chairman Babin. Thank you.
    I want to thank the witnesses for their very valuable 
testimony and the members for their questions. It's been very 
informative. The record will remain open for two weeks for 
additional comments and written questions from members.
    And with that, this hearing is adjourned.
    [Whereupon, at 11:52 a.m., the Subcommittee was adjourned.]

                               Appendix I

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                   Answers to Post-Hearing Questions

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                              Appendix II

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                   Additional Material for the Record

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