[Senate Hearing 115-219]
[From the U.S. Government Publishing Office]








                                                        S. Hrg. 115-219

                    REOPENING THE AMERICAN FRONTIER:
                  EXPLORING HOW THE OUTER SPACE TREATY
                     WILL IMPACT AMERICAN COMMERCE
                        AND SETTLEMENT IN SPACE

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

                                HEARING

                               before the

                    SUBCOMMITTEE ON SPACE, SCIENCE, 
                          AND COMPETITIVENESS

                                 of the

                         COMMITTEE ON COMMERCE,
                      SCIENCE, AND TRANSPORTATION
                          UNITED STATES SENATE

                     ONE HUNDRED FIFTEENTH CONGRESS

                             FIRST SESSION

                               __________

                              MAY 23, 2017

                               __________

    Printed for the use of the Committee on Commerce, Science, and 
                             Transportation




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       SENATE COMMITTEE ON COMMERCE, SCIENCE, AND TRANSPORTATION

                     ONE HUNDRED FIFTEENTH CONGRESS

                             FIRST SESSION

                   JOHN THUNE, South Dakota, Chairman
ROGER F. WICKER, Mississippi         BILL NELSON, Florida, Ranking
ROY BLUNT, Missouri                  MARIA CANTWELL, Washington
TED CRUZ, Texas                      AMY KLOBUCHAR, Minnesota
DEB FISCHER, Nebraska                RICHARD BLUMENTHAL, Connecticut
JERRY MORAN, Kansas                  BRIAN SCHATZ, Hawaii
DAN SULLIVAN, Alaska                 EDWARD MARKEY, Massachusetts
DEAN HELLER, Nevada                  CORY BOOKER, New Jersey
JAMES INHOFE, Oklahoma               TOM UDALL, New Mexico
MIKE LEE, Utah                       GARY PETERS, Michigan
RON JOHNSON, Wisconsin               TAMMY BALDWIN, Wisconsin
SHELLEY MOORE CAPITO, West Virginia  TAMMY DUCKWORTH, Illinois
CORY GARDNER, Colorado               MAGGIE HASSAN, New Hampshire
TODD YOUNG, Indiana                  CATHERINE CORTEZ MASTO, Nevada
                       Nick Rossi, Staff Director
                 Adrian Arnakis, Deputy Staff Director
                    Jason Van Beek, General Counsel
                 Kim Lipsky, Democratic Staff Director
              Chris Day, Democratic Deputy Staff Director
                      Renae Black, Senior Counsel
                                 ------                                

          SUBCOMMITTEE ON SPACE, SCIENCE, AND COMPETITIVENESS

TED CRUZ, Texas, Chairman            EDWARD MARKEY, Massachusetts, 
JERRY MORAN, Kansas                      Ranking
DAN SULLIVAN, Alaska                 BRIAN SCHATZ, Hawaii
MIKE LEE, Utah                       TOM UDALL, New Mexico
RON JOHNSON, Wisconsin               GARY PETERS, Michigan
SHELLEY MOORE CAPITO, West Virginia  TAMMY BALDWIN, Wisconsin
CORY GARDNER, Colorado               MAGGIE HASSAN, New Hampshire

























                            C O N T E N T S

                              ----------                              
                                                                   Page
Hearing held on May 23, 2017.....................................     1
Statement of Senator Cruz........................................     1
    Letter dated May 22, 2017 to Hon. John Thune and Hon. Bill 
      Nelson from Christopher Johnson, J.D., LL.M., Space Law 
      Advisor, Secure World Foundation and Ian Christensen, 
      Project Manager, Secure World Foundation...................     3
    Letter dated May 17, 2017 to Senator Ted Cruz, Chairman; and 
      Senator Edward Markey, Ranking Member, and Members of 
      Space, Science, and Competitiveness Subcommittee from 
      Michael J. Listner, Esquire, Space Law & Policy Solutions..     7
    Letter dated May 22, 2017 to Hon. Ted Cruz and Hon. Edward 
      Markey from Arthur M. Dula, Trustee, and J. Buckner 
      Hightower, Trustee, Heinlein Prize Trust...................    12
Statement of Senator Markey......................................     2
Statement of Senator Nelson......................................    14
Statement of Senator Peters......................................    46
Statement of Senator Hassan......................................    49

                               Witnesses

James E. Dunstan, Founder, Mobius Legal Group, PLLC..............    14
    Prepared statement...........................................    16
Laura Montgomery, Attorney and Proprietor, Ground Based Space 
  Matters, LLC...................................................    24
    Prepared statement...........................................    25
Matthew P. Schaefer, Veronica A. Haggart & Charles R. Work 
  Professor of International Trade Law; Co-Director--Space, Cyber 
  and Telecommunications Law Program, University of Nebraska 
  College of Law; and Co-Chair, American Branch of International 
  Law Assoc. Space Law Committee.................................    31
    Prepared statement...........................................    32
Robert (Bob) Richards, Founder and Chief Executive Officer, Moon 
  Express, Inc...................................................    54
    Prepared statement...........................................    55
Peter Marquez, Vice President for Global Engagement, Planetary 
  Resources......................................................    60
    Prepared statement...........................................    62
Mike Gold, Vice President, Washington Operations and Business 
  Development, Space Systems Loral...............................    64
    Prepared statement...........................................    66
Pamela A. Melroy, U.S. Air Force (Retired), and former Astronaut.    72
    Prepared statement...........................................    73

                                Appendix

Letter dated May 24, 2017 to Hon. John Thune and Hon. Bill Nelson 
  from the International Institute of Space Law..................    85
Letter dated June 5, 2017 to Hon. John Thune and Hon. Bill Nelson 
  from Eric Klein, Lifeboat Foundation...........................    87
Response to written questions submitted by Hon. Bill Nelson to:
    James E. Dunstan.............................................    88
    Laura Montgomery.............................................    95
    Matthew P. Schaefer..........................................    95
    Peter Marquez................................................    96
    Mike Gold....................................................    97
    Pamela A. Melroy.............................................    98

 
                    REOPENING THE AMERICAN FRONTIER:
                  EXPLORING HOW THE OUTER SPACE TREATY
                     WILL IMPACT AMERICAN COMMERCE
                       AND SETTLEMENT IN SPACE

                            ----------                              


                         TUESDAY, MAY 23, 2017

                               U.S. Senate,
       Subcommittee on Space, Science, and Competitiveness,
        Committee on Commerce, Science, and Transportation,
                                                    Washington, DC.
    The Subcommittee met, pursuant to notice, at 2:31 p.m. in 
room SR-253, Russell Senate Office Building, Hon. Ted Cruz, 
Chairman of the Subcommittee, presiding.
    Present: Senators Cruz [presiding], Gardner, Nelson, 
Markey, Peters, and Hassan.

              OPENING STATEMENT OF HON. TED CRUZ, 
                    U.S. SENATOR FROM TEXAS

    Senator Cruz. Good afternoon. This hearing is called to 
order.
    Fifty years ago, the United States and the Soviet Union 
were locked in a period of intense international crisis. Two 
decades of the Cold War had resulted in the Berlin Blockade, 
the Soviet Union's testing of the atomic bomb, the successful 
launch of Sputnik, the Cuban Missile Crisis, and the Vietnam 
war. However, despite the prolonged period of intense 
international crisis, a remarkable event occurred. The United 
States and the Soviet Union were able to come together and 
author the Outer Space Treaty, which was intended to become a 
foundation for all future activity in outer space.
    The main tenets of the treaty include the prohibition of 
the placement of nuclear weapons and other weapons of mass 
destruction in space or on a celestial body; the requirement 
that states are responsible for national space activities, 
whether carried out by governmental or non-governmental 
entities; and states that outer space, including the Moon and 
other celestial bodies, are not subject to national 
appropriation by claim of sovereignty. Following ratification 
by the Senate, the United States, the United Kingdom, and the 
Soviet Union were among 60 nations to sign the Outer Space 
Treaty, with signing ceremonies in Washington, D.C., London, 
and Moscow, on January 27, 1967. President Lyndon B. Johnson 
hailed the signing of the Treaty as, ``an inspiring moment in 
the history of this human race.''
    However, in the half century that has since passed, many 
articles of the Treaty haven't been fully tested, as the 
majority of activities in space have primarily been carried out 
by governmental entities. But that could soon change as the 
United States is poised to lead an explosion in commercial 
space activity that will see American companies look to land on 
the surface of the Moon, service satellites, and mine asteroids 
which may contain platinum and other precious metals valued 
upwards of trillions of dollars.
    While the future appears bright, we cannot afford to become 
complacent. The United States does not stand alone in this new 
emerging space race. Just last month, it was announced that 
China and the European Space Agency are interested in creating 
an outpost on the Moon.
    As activities in space increase, they will undoubtedly pose 
new challenges as countries and companies compete for resources 
throughout the universe. We should anticipate that there will 
be conflicts as countries and private industry race to reach 
areas of the Moon that hold significant advantages, such as 
the, ``peaks of eternal light'' and the lunar sites that may 
hold vast quantities of water. These sites will provide 
economic and operational advantages for those who reach them 
first.
    Therefore, it's incumbent on Congress to use this 50-year 
anniversary of the Outer Space Treaty to properly determine our 
actual international obligations, to decide if specific 
articles in the treaty are self-executing or not, and to ensure 
that our domestic policy moving forward creates an environment 
that provides certainty for industry while protecting our 
national security. Those decisions will be made by this 
committee, by the Senate as a whole, and by the Congress and 
the President.
    In this committee, this is the second in a series of 
hearings looking at reopening the American frontier in space. 
That's why we're gathered here today. The testimony that this 
committee will hear will help pave the way to the future of 
space exploration and our global competitiveness. Every little 
boy and every little girl knows the experience of looking up 
into the night sky, looking to the stars and wondering what's 
out there. That's the mystery, that's the wonder that is behind 
this collective endeavor in which we're engaged.
    If this committee can, working together in a bipartisan 
manner, as it has succeeded in doing for several Congresses 
now--if we can come together behind a strong national space 
policy that ensures continued American leadership in space, 
then I have no doubt that in the not too distant future, those 
same little boys and little girls will be looking up at the 
Moon, looking up at Mars, and looking up at Americans walking 
on the surface of those bodies, perhaps living on the surface 
of those bodies, exploring new opportunities that the mind can 
scarcely imagine. That's what this hearing is all about.
    With that, Senator Markey.

               STATEMENT OF HON. EDWARD MARKEY, 
                U.S. SENATOR FROM MASSACHUSETTS

    Senator Markey. Thank you, Mr. Chairman, very much, and 
thank our witnesses.
    This is a very, very forward-looking hearing, because we're 
going to be looking at how our policy can support a growing 
commercial space industry. We are here today to explore how the 
Outer Space Treaty impacts commerce, impacts settlement in 
space, and impacts what may be needed to provide a regulatory 
framework that grants certainty to businesses and investors and 
establishes an international understanding of expectations for 
countries and companies operating in space.
    The Outer Space Treaty provides a set of principles for 
space activities that guides all countries and is an important 
foundation to build upon to ensure America's interests are 
preserved in outer space. There are things that were not 
anticipated or planned for in this treaty when it was 
negotiated in the late 1960s. The testimony today will explore 
some of those issues and how U.S. policy might help address 
some of those concerns.
    In particular, Article VI of the Treaty, which gives 
governments the responsibility for all space activities from 
their nation, whether undertaken by the government or not, has 
been an issue. I look forward to hearing the views of our 
witnesses on what is needed to create effective and efficient 
policies that will promote the reasonable, rational, safe, and 
fair use of space. Space policies need to include room for all 
nations' responsible activities, for small businesses as well 
as large, and for science and non-profit activities as well as 
for-profit activities in this new frontier.
    The United States continues to be a pioneer in space 
activities, and our policy should support the continued 
innovation that has been the key to America's economic success. 
I look forward to working with this subcommittee and 
stakeholders to ensure that America continues to be a leader in 
space.
    I look forward to working with you, Mr. Chairman, and 
leaders like Senator Peters and Senator Hassan to accomplish 
that goal.
    Senator Cruz. Thank you, Senator Markey.
    At the outset, without objection, I want to enter into the 
hearing record a letter from the Secure World Foundation, a 
letter from Michael J. Listner of Space Law and Policy 
Solutions, and a letter from the Heinlein Prize Trust.
    [The information referred to follows:]

                                    Secure World Foundation
                                                       May 22, 2017

To: U.S. Senate Committee on Commerce, Science, and Transportation
Senator John Thune, Chairman
Senator Bill Nelson, Ranking Member

CC: U.S. Senate Subcommittee on Space, Science, and Competitiveness
Senator Ted Cruz, Chairman
Senator Edward Markey, Ranking Member

Subject: Letter for the record for the hearing on ``Reopening the 
American Frontier: Exploring How the Outer Space Treaty Will Impact 
American Commerce and Settlement in Space''

Mr. Chairman, Ranking Member Nelson, and Members of the Committee,

    The Secure World Foundation (SWF) is a non-governmental 
organization dedicated to ensuring the long-term sustainable use of 
outer space. We believe that strong, predictable, and coherent 
governance frameworks which take into account the long-term interest of 
all stakeholders are fundamental to ensuing sustainability and progress 
in space activities. As such, SWF has a keen interest in the topics to 
be discussed at the hearing organized by your Subcommittee on May 23, 
2017. We submit the following letter in support of the Subcommittee's 
deliberations.
1. The United States was the driving force behind the Outer Space 
        Treaty
    The U.S. Government was the driving force behind the negotiation 
and drafting of the 1967 Outer Space Treaty, in large part because it 
supported U.S. national security interests. At the time, a major U.S. 
policy objective was to enable the use of satellites to gather 
intelligence on the Soviet Union, and the principle of ``peaceful 
uses'' supported that goal. In May 1966, President Lyndon Johnson 
instructed Ambassador to the U.N. Arthur J. Goldberg to bring to the 
United Nations Committee on the Peaceful Uses of Outer Space (COPUOS) a 
draft treaty on space for its expedient negotiation and 
finalization.\1\ Borrowing from previous instruments, the American 
draft formed the majority of the final text of the Treaty. The Treaty 
was subsequently sent to the U.N. General Assembly in December 1966 for 
adoption in U.N. Resolution 2222, and opened for signature in 
Washington, London, and Moscow. A signing ceremony was held at the 
White House on January 27, 1967,\2\ where President Johnson commended 
the Treaty as a step towards the peaceful uses of space.\3\ At the U.S. 
Senate Foreign Relations Committee hearings on ratifying the Treaty, 
Secretary of State Dean Rusk and Ambassador Goldberg testified to the 
Treaty's worth as both an arms control measure that protects U.S. 
national security and ensured private sector access to space.\4\ The 
Treaty entered into force in October 1967, and the United States serves 
as one of the Depository Governments for signatures by states becoming 
party to the Treaty. As 2017 is the fiftieth anniversary of the Outer 
Space Treaty, the United States can rightly be proud of its 
international treatymaking effort, which continues to serve as the 
foundation of the international legal framework for all space 
activities.
---------------------------------------------------------------------------
    \1\ The American Presidency Project, Lyndon B. Johnson--Statement 
by the President on the Need for a Treaty Governing Exploration of 
Celestial Bodies, 7 May 1966. Available at: http://
www.presidency.ucsb.edu/ws/?pid=27581.
    \2\ British Pathe, Space Treaty Signed in Washington (1967). 
Available at: https://youtu.be/086Ygv-4ras and https://youtu.be/
s8OlCpkSzZA. See also: The LBJ Library, The President-January 1967. 
Available at: https://youtu.be/gF5OZ7nANTI?t=25m55s.
    \3\ The American Presidency Project, Lyndon B. Johnson--Remarks at 
the Signing of the Outer Space Treaty, 27 Jan. 1967. Available at: 
http://www.presidency.ucsb.edu/ws/?pid=28205.
    \4\ Treaty on Outer Space: Hearings Before the S. Comm. on Foreign 
Relations, 90th Cong., 7, 27-29 (1967) (Statements of Sec. of State 
Dean Rusk and Arthur J. Goldberg, Ambassador). Available at: http://
bit.ly/2qyy5fr.
---------------------------------------------------------------------------
2. Private space activities were ensured, protected through U.S. 
        negotiation
    During the negotiations of the Outer Space Treaty, the United 
States was able to secure the right of the private sector to engage in 
space activities. The language in the Outer Space Treaty permitting 
non-governmental private actors to explore and use space is taken from 
an earlier U.N. Resolution on space, the 1963 Principles 
Declaration.\5\ In that Resolution's negotiation phase, a draft 
submitted by the Soviets would have prohibited all non-governmental 
private activities in space. The Soviet proposal read ``all activities 
of any kind pertaining to the exploration and use of outer space shall 
be carried out solely and exclusively by states.'' \6\ The American 
counterproposal offered a compromise which assigned responsibility and 
liability to a state for launches from its territory and for launches 
to which it gave assistance or permission.\7\ The Soviets accepted this 
compromise permitting private non-governmental entities, and three 
years later this language from the 1963 Principles Declaration made its 
way unmodified into Article VI of the Outer Space Treaty. In summary, 
the legality of commercial uses of outer space is a success of American 
foresight and diplomatic skill.
---------------------------------------------------------------------------
    \5\ UN General Assembly Resolution 1962 (XVII), 13 Dec. 1963, 
Declaration of Legal Principles Governing the Activities of States in 
the Exploration and Use of Outer Space, Principle 5. Available at: 
http://www.un-documents.net/a18r1962.htm.
    \6\ United Nations, Committee on the Peaceful Uses of Outer Space, 
Union of Soviet Socialist Republics: Draft Declaration of the Basic 
Legal Principles Governing the Activities of States Pertaining to the 
Exploration and Use of Outer Space, A/AC.105/L.2 (1962) pg. 2, para. 7. 
Available at: http://www.unoosa.org/pdf/limited/l/AC105_L002E.pdf.
    \7\ United Nations, Committee on the Peaceful Uses of Outer Space, 
Letter Dated 8 December 1962 from the Representative of the United 
States of America to the Chairman of the First Committee, A/C.1/881, at 
para. 6. Available at: http://www.unoosa.org/pdf/garecords/
A_C1_881E.pdf. See also Michael Gerhard, Article VI, in Cologne 
Commentary on Space Law-Vol. 1, 105 (Hobe, Schmidt-Tedd & Schrogl eds., 
2009).
---------------------------------------------------------------------------
3. The Outer Space Treaty is part of a permissive, open system
    The Outer Space Treaty creates a legal framework that is inherently 
permissive in its nature. The full title of the Outer Space Treaty is 
the `Treaty on Principles Governing the Activities of States in the 
Exploration and Use of Outer Space, including the Moon and Other 
Celestial Bodies.' As the title shows, this Treaty is a treaty of 
principles, rather than an exhaustive and comprehensive delineation of 
precise rights and obligations in every circumstance,\8\ and it is 
focused on enabling use of outer space.
---------------------------------------------------------------------------
    \8\ See also footnote 4, testimony of Dean Rusk ``The treaty is not 
complete in all possible details. It does not deal with all problems 
that may develop. But it is responsible to those problems that can be 
described and forecast today.'' (pg. 4).
---------------------------------------------------------------------------
    The Treaty's articles contain a finite body of obligations which 
serve as limits to the freedom established in Article I. They include 
the duty to render assistance to foreign astronauts and to return both 
them and foreign space objects to their launching state (Art. V), the 
duty to bear international responsibility for all national space 
activities (Art. VI), the duty to authorize and continually supervise 
the activities of non-governmental actors (Art. VI), and the duty of 
international liability to other States Parties to the Treaty for 
damage from launched space objects (Art. VII). Additionally, articles 
prohibit the placement of nuclear weapons or other weapons of mass 
destruction into space or on celestial bodies (Art. IV), the 
prohibition on space activities causing harmful contamination of 
celestial bodies and adverse changes in the Earth's environment (Art. 
IX), and the prohibition on the national appropriation of outer space, 
including the Moon and other celestial bodies (Art. II). This short 
list of obligations are the only limits to the freedoms enshrined in 
Article I.
    The Outer Space Treaty is the foundation of subsequent 
international law on space. The Outer Space Treaty's Article V, 
protecting astronauts, was expanded and its provisions clarified in the 
1968 Astronaut Rescue and Return Agreement. Articles VI and VIII were 
expanded and clarified in the 1972 Liability Convention. Lastly, 
Article VIII dealing with registration was expanded and clarified with 
the 1975 Registration Convention. In 1986 the UN General Assembly 
adopted a resolution describing Principles Relating to Remote Sensing 
of the Earth from Space, providing non-binding yet generally accepted 
guidelines clarifying the relationship of space-based remote sensing 
activities to international law. This further work was done within 
COPUOS and led by the United States, and these efforts demonstrate that 
the Outer Space Treaty is the foundation of a system which is open to 
expansion, clarification, and modification.
    Aside from this short list of finite obligations, the framework 
established by the Outer Space Treaty is quite permissive. A general 
presumption in international law is the lotus principle, or that `that 
which is not explicitly prohibited is therefore permitted.' \9\ Taking 
into account that the Outer Space Treaty refrains from directly 
addressing or regulating various emerging and prospective activities in 
outer space, applying the lotus principle to the gaps in the Treaty 
demonstrates that the Outer Space Treaty does not clearly restrict any 
of the commercial activities that so excite and inspire the American 
space community.
---------------------------------------------------------------------------
    \9\ See generally Ian Brownlie, Principles of Public International 
Law 291 (7th ed.) (2008) ``Restrictions upon the independence of States 
cannot be presumed''; Hugh Thirlway, The Law and Procedure of the 
International Court of Justice, Vol. 1, 505 (2016).
---------------------------------------------------------------------------
4. The Outer Space Treaty has supported 50 years of commercial activity
    Over the last five decades, the Outer Space Treaty has enabled 
commercial uses of outer space to become a global and multibillion 
dollar industry. In 2015, worldwide revenues from commercial space 
products, services, manufacturing, and infrastructure surpassed $247 
billion, according to annual figures compiled by the U.S. Space 
Foundation.\10\ Much of this activity is conducted by U.S. companies 
and individuals: the United States leads the world in the number of 
satellites manufactured, and, in 2015, the United States conducted more 
commercial space launches than any other country.\11\ Sources of 
capital that are enabling innovative space start-up activity are 
concentrated in the United States as well: a 2016 industry report found 
that 66 percent of the more than 250 identified investors in space 
start-ups are U.S.-based, while the remaining 34 percent were 
distributed through 25 different countries.\12\
---------------------------------------------------------------------------
    \10\ U.S. Space Foundation, The Space Report 2016--Overview. 
Available at: https://www.space
foundation.org/sites/default/files/downloads/
The_Space_Report_2016_OVERVIEW.pdf.
    \11\ Bill Canis, Commercial Space Industry Launches a New Phase 
(Congressional Research Service Report R44708), Dec. 12, 2016, 2. See 
also Federal Aviation Administration, The Annual Compendium of 
Commercial Space Transportation 2016, Available at: https://
www.faa.gov/about/office_org/headquarters_offices/ast/media/
2016_Compendium.pdf.
    \12\ The Tauri Group, Start-up Space, 2016.
---------------------------------------------------------------------------
    These commercial uses of outer space have developed--indeed 
flourished--under domestic law developed in consistency with the system 
of international space law, of which the Outer Space Treaty is a 
foundational component. Working under the principles of the Outer Space 
Treaty, the United States and other governments have developed and 
implemented domestic legal and regulatory frameworks to enable several 
categories of commercial activities. It cannot be said that the Outer 
Space Treaty has hindered the commercial uses of outer space that have 
developed and expanded so dramatically in the previous decades.
    At the moment, the main restrictions on further innovation and 
commercial development of space come largely from U.S. national law, 
not the Outer Space Treaty. U.S. export controls on satellites have 
already caused the U.S. space sector to lose a significant portion of 
global market share. Several categories of remote sensing and on-orbit 
activities are heavily restricted, or, in some cases, have historically 
been off limits for U.S. commercial entities, enabling foreign 
competitors to leap ahead and establish global markets. And there are 
several types of commercial space activities planned for the near 
future that do not clearly fall under any of the existing national 
licensing authorities. These gaps create uncertainty that gives rise to 
real-world challenges for start-up companies trying to secure investors 
and insurers, a phenomenon many new space companies are struggling 
with.
5. The U.S. has more effective avenues to further encourage commercial 
        space
    It would be extremely difficult, and likely counterproductive, for 
the United States to withdraw from or seek amendment to the Outer Space 
Treaty. As of 2017, 105 countries have ratified the Outer Space 
Treaty.\13\ These include all of the historically spacefaring states 
such as the United States, Russia, China, India, Brazil, Japan, and all 
the Member States of the European Space Agency (ESA). A further 25 
countries have signed the Treaty, which expresses their intention to 
ratify it in the future, or at least to not take actions contrary to 
the purposes of the Treaty. Additionally, many of the foundational 
provisions of the Outer Space Treaty are so well respected that they 
are considered to have passed into the realm of customary international 
law.\14\
---------------------------------------------------------------------------
    \13\ United Nations, Committee on the Peaceful Uses of Outer Space, 
Legal Subcommittee, Status of International Agreements relating to 
activities in outer space as at 1 January 2017, A/AC.105/C.2/2017/CRP.7 
(2017). Available at: http://www.unoosa.org/res/oosadoc/data/documents/
2017/aac_105c_22017crp/aac_105c_22017crp_7_0_html/AC105
_C2_2017_CRP07E.pdf.
    \14\ Francis Lyall & Paul B. Larsen, Space Law--A Treatise 418. See 
also Adam Mann, Who's in Charge of Outer Space?, Wall St. J., May 19, 
2017, quoting Sagi Kfir, General Counsel of Deep Space Industries: 
``[The Outer Space Treaty] is so fundamental that its principles have 
become customary international law even for those countries that aren't 
signatories.'' Available at: https://www.wsj.com/articles/whos-in-
charge-of-outer-space-1495195097.
---------------------------------------------------------------------------
    As a consequence of this wide international success, an attempt to 
amend the Treaty is likely to be extremely difficult, and it is not 
certain it would advance U.S. interests. First, if the United States 
officially broaches the subject of amending the Outer Space Treaty, it 
is likely that other countries would identify issues of their own they 
would like addressed, not all of which would be aligned with U.S. 
interests. Moreover, given the diversity of countries that are States 
Parties to the Outer Space Treaty, reaching the threshold of 53 
required to amend the text (via Art. XV) is a serious obstacle.
    However, other avenues exist to clarify and define the rights and 
obligations of states under the broad principles already established by 
the Outer Space Treaty. The first is through national space law and 
regulation. Here, the United States has a significant opportunity to 
take a leadership role in the international community. Historically, 
other countries have modeled their national policy and regulation on 
the examples provided by the United States. Thus, how the United States 
approaches the current issue could have widespread international 
implications. Additionally, the United States can also shape the 
interpretation and implementation of the Outer Space Treaty through 
multilateral initiatives. Over the last few decades, the United States 
has played a leadership role in establishing international non-binding 
norms and guidelines regarding satellite broadcasting, space debris 
mitigation, nuclear power sources for use in space, and the long-term 
sustainability of space activities. This work is done both within 
COPUOS and elsewhere. For example, governments have cooperated through 
the Inter-Agency Space Debris Coordination Committee (IADC) to 
coordinate discussion of technical and policy matters related to space 
debris mitigation. This process represents the development of 
additional clarifications without require amendment to any existing 
treaty. These multilateral efforts are seen as conducive to the 
creation of norms and best practices which can receive widespread 
acceptance and adherence.
6. Conclusion
    We strongly believe that continuing to support the Outer Space 
Treaty and further enhancing U.S. national oversight frameworks will be 
the best method for promoting commercial development in space. As more 
countries acquire the capability to engage in commercial space 
activities, it will be important for U.S. companies to be working 
inside a predictable international legal framework that can encourage 
and protect investments. The Outer Space Treaty provides the 
foundational level of certainty in the international system that 
commercial space entrepreneurs, businesses, and capital sources require 
to develop further innovative activities.
    Rather than an arduous and unpredictable international amendment 
process, domestic space law is often the best avenue to address any 
gaps or needs for further clarity, especially regarding emerging 
activities in space such as space debris removal, satellite servicing, 
and celestial resource use. Activities which engender international 
apprehension might also be pursued on a multilateral basis in the form 
of new instruments that augment, rather than replace, the Outer Space 
Treaty. Modification or withdrawal from the Outer Space Treaty leaves, 
on balance, too many uncertainties in outcome, with little clear actual 
utility, either political or legal.
    The Secure World Foundation would like to once again commend the 
Subcommittee for focusing on such an important issue, and express our 
support for U.S. governmental efforts to respond to the needs of the 
commercial space sector while ensuring a sustainable international 
governance framework in outer space.
            Respectfully,
                          Christopher Johnson, J.D., LL.M.,
                                                 Space Law Advisor,
                                               Secure World Foundation.

                                           Ian Christensen,
                                                   Project Manager,
                                               Secure World Foundation.
                                 ______
                                 
                               Space Law & Policy Solutions
                                                      Rochester, NH
                               Memorandum
         THIS MEMORANDUM AND ITS CONTENTS IS FOR INFORMATIONAL 
 PURPOSES ONLY. OPINIONS ARE THOSE OF THE AUTHOR, AND IT SHOULD NOT BE 
  RELIED UPON AS LEGAL ADVICE, IS NOT LEGALLY PRIVILEGED AND DOES NOT 
                       CREATE AN ATTORNEY/CLIENT 
                             RELATIONSHIP.

To: Senator Ted Cruz (R-TX), Chairman, Senator Edward J. Markey (D-MA), 
Ranking Member and Members of Space, Science and Competitiveness 
Subcommittee

From: Michael J. Listner, Esquire

CC: Senator John Thune (R-SD), Chair, Senate Committee on Commerce, 
Science, and Transportation

Date: May 17, 2017

  Re: The Outer Space Treaty: Implications of Amendment and Withdrawal.

Senator Cruz, Senator Markey and Honorable Members of the Committee,

    My name is Michael J. Listner, and I am an attorney licensed to 
practice law in and before the state and Federal courts of the State of 
New Hampshire. I am also the Founder and Principal of the legal and 
policy consultation firm, Space Law and Policy Solutions and the editor 
of the space law and policy briefing-letter The Precis.
    This Subcommittee will examine the effect of The Treaty on 
Principles Governing the Activities of States in the Exploration and 
Use of Outer Space, Including the Moon and Other Celestial Bodies 
(Outer Space Treaty) on free enterprise with regards to both current 
and future private outer space activities.\1\ Implicit in the 
discussion of the Outer Space Treaty and private outer space activities 
is the question of amendment or withdrawal.
---------------------------------------------------------------------------
    \1\ The Treaty on Principles Governing the Activities of States in 
the Exploration and Use of Outer Space, Including the Moon and Other 
Celestial Bodies, October 10, 1967, 18 UST 2410, 610 UNTS 205.
---------------------------------------------------------------------------
    The question of amending or withdrawing from the Outer Space Treaty 
is polarizing. The global community hailed the 50th anniversary of the 
Outer Space Treaty being open for signature this past January with the 
expectation of the accord lasting another fifty years. On the other 
side, space advocates, especially in the community advocating 
settlement and exploitation, look to outer space as the new frontier 
akin to the 1800s and the opening of the West. This special interest 
sees the Outer Space Treaty as an impediment to settling outer space 
and alludes to legislation like the Homestead Act of 1862 as the model 
for the future settlement of outer space.\2\ The res communis \3\ 
principle of the Outer Space Treaty found in Article I and II precludes 
a grant of title to land to private individuals similar to the 1862 
Act.\4\
---------------------------------------------------------------------------
    \2\ 'Property' in the strict legal sense is an aggregate of rights 
which are guaranteed and protected by government. Fulton Light, Heat & 
Power Co. v. State, 65 Misc. 263, 270. The Homestead Act in essence did 
this by exercising national sovereignty over lands formerly held by 
Native Americans and guarantying homesteaders possession subject to 
conditions within the Act. This act of national sovereignty is the 
antithesis of the res communis doctrine and specifically prohibited in 
Article II of the Outer Space Treaty, which makes analogies of outer 
space to the Homestead Act inaccurate.
    \3\ See Treaty on Principles Governing the Activities of States in 
the Exploration and Use of Outer Space, Including the Moon and Other 
Celestial Bodies, October 10, 1967, art. I & II, 18 UST 2410.
    \4\ Res communis is a concept derived from Roman property law that 
refers to the light and the air. See Merriam-Webster Dictionary at 
https://www.merriam-webster.com/dictionary/res%20communes. See also, 
Black's Law Dictionary, Sixth Edition, res communes--``In the civil 
law, things common to all; that is, those things which are used and 
enjoyed by everyone, even in the single parts, but can never be 
exclusively acquired as a whole, e.g. light and air.'' The idea behind 
res communis in the reference to both the Antarctic Treaty and the 
Outer Space Treaty is that no sovereign can extend [state] ownership 
much in the same way no one can extend control over the air or the 
light. In other words, in the case of outer space and celestial bodies, 
they belong to no nation. It is notable in regards to usage and 
passage, the high seas are considered res communis. 
---------------------------------------------------------------------------
Understanding the Rationale for The Outer Space Treaty
    The Outer Space Treaty is a culmination of principles with legal 
rights and obligations interspersed. The Outer Space Treaty is 
purposely ambiguous and during negotiations the major space powers most 
notably the United States, reserved the right to interpret those 
ambiguities broadly. This has been most recently demonstrated with the 
interpretation of Article I and Article II of the Outer Space Treaty by 
the United States to permit the extraction and possession of ``space 
resources'' by private citizens as enacted in Title 51, Chapter 513 of 
the United States Code.
    The Outer Space Treaty also contains strict prohibitions and legal 
duties. A prominent prohibition is found in Article IV, which expresses 
the arms control nature of the Outer Space Treaty and prohibits the 
placement of nuclear weapons in outer space, including celestial 
bodies.

        States Parties to the Treaty undertake not to place in orbit 
        around the Earth any objects carrying nuclear weapons or any 
        other kinds of weapons of mass destruction, install such 
        weapons on celestial bodies, or station such weapons in outer 
        space in any other manner.

    Article IV also expresses the mandate outer space should be used 
for peaceful purposes and precludes the placement of military 
installations in space, including the Moon and other celestial bodies.

        The Moon and other celestial bodies shall be used by all States 
        Parties to the Treaty exclusively for peaceful purposes. The 
        establishment of military bases, installations and 
        fortifications, the testing of any type of weapons and the 
        conduct of military maneuvers on celestial bodies shall be 
        forbidden. The use of military personnel for scientific 
        research or for any other peaceful purposes shall not be 
        prohibited. The use of any equipment or facility necessary for 
        peaceful exploration of the Moon and other celestial bodies 
        shall also not be prohibited. \5\
---------------------------------------------------------------------------
    \5\ See Treaty on Principles Governing the Activities of States in 
the Exploration and Use of Outer Space, Including the Moon and Other 
Celestial Bodies, October 10, 1967, art. IV, 18 UST 2410.

    The idea behind Article IV is nuclear weapons or other weapons of 
mass destruction are not permitted and outer space is to be used for 
peaceful purposes.\6\
---------------------------------------------------------------------------
    \6\ Even though Article IV has an express prohibition against the 
operation of nuclear weapons in outer spaces, the broad nature of the 
Outer Space Treaty is allowed a potential work-around to that 
prohibition, which was considered as a lead up to the Strategic 
Defensive Initiative (SDI) as proposed by President Reagan. In 
particular, the X-ray laser system proposed by Edward Teller and 
researched by Project Excalibur would have implicated Article IV as the 
system would have consisted of a small nuclear device launched aboard 
an ICBM or SLBM that when detonated in outer space would have channeled 
a fraction of the energy released into high intensity laser beams that 
would destroy enemy missiles during their boost phase. The device would 
be destroyed in the course of detonation and it's this operation of a 
nuclear weapon in outer space, and not the resulting laser beam Article 
IV technically would have prohibited. However, it could have been 
argued the devices were purely defensive and were not actually placed 
in orbit to remain there, but rather they were of a transient nature 
and only remained in outer space long enough to fulfill their defensive 
function against incoming enemy missiles. Moreover, because the 
function of the X-ray laser system would have been defensive and hence 
non-aggressive, it could be argued its use would have correlated with 
Article IV's principle outer space should be used for peaceful 
purposes. See Maj. John E. Parkenson, Jr., International Legal 
Implications of the Strategic Defense Initiative, 116 Mil. L. Rev. 67, 
86-89 (Spring 1987).
---------------------------------------------------------------------------
    Another legal obligation/duty is found in Article VI.

        States Parties to the Treaty shall bear international 
        responsibility for national activities in outer space, 
        including the Moon and other celestial bodies, whether such 
        activities are carried on by governmental agencies or by non-
        governmental entities, and for assuring that national 
        activities are carried out in conformity with the provisions 
        set forth in the present Treaty. 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. When activities are carried on in outer space, 
        including the Moon and other celestial bodies, by an 
        international organization, responsibility for compliance with 
        this Treaty shall be borne both by the international 
        organization and by the States Parties to the Treaty 
        participating in such organization. \7\
---------------------------------------------------------------------------
    \7\ See Treaty on Principles Governing the Activities of States in 
the Exploration and Use of Outer Space, Including the Moon and Other 
Celestial Bodies, October 10, 1967, art. VI, 18 UST 2410.

    Article VI requires States to bear responsibility for national 
activities in outer space whether those activities are performed by 
government or non-government actors. Article VI also includes the 
mandate for activities of non-government entities to be ``authorized'' 
and ``continually supervised''.\8\
---------------------------------------------------------------------------
    \8\ The requirement to authorize and continually supervise is a 
compromise between the United States and the Soviet Union during the 
negotiations of the Outer Space Treaty. The Soviet Union took the 
position outer space activities should be limited to government actors 
while the United States wanted to include non-government actors. The 
compromise was reached to include non-government actors with the 
stipulation their activities be authorized and continually supervised 
in a manner left to the discretion of the State.
---------------------------------------------------------------------------
    The Outer Space Treaty was conceptualized in the geopolitical 
environment after World War II and in the advent of the Cold War with 
the Soviet Union. In particular the Outer Space Treaty was intended as 
a hedge against the possibility the Soviet Union would reach the Moon 
first and make territorial claims with the resultant military and 
national security implications. This concern and its implications were 
manifest in Project Horizon, which was a 1959 U.S. Army proposal to 
establish a lunar outpost. In terms of policy considerations, the 
Project Horizon proposal extolled the national security implications of 
establishing a lunar outpost before the Soviet Union reached the 
Moon.\9\
---------------------------------------------------------------------------
    \9\ See generally, Project Horizon, Volume I, Summary and 
Supporting Considerations, March 21, 1959 [Regraded Unclassified, 
September 21, 1961], pp. 61-81, available at http://nsarchive.gwu.edu/
NSAEBB/NSAEBB479/docs/EBB-Moon01_sm.pdf.
---------------------------------------------------------------------------
    This was considered a very real possibility with the Soviet success 
with Sputnik-1 and territorial claims the Soviet Union made prior to 
that accomplishment.\10\ Even before Sputnik, Eisenhower perceived 
outer space as a potential Pearl Harbor and sought to meld space 
exploration, disarmament and the creation of international law through 
his idea of ``space for peace'' and an environment free from national 
military rivalries.\11\ This led to his proposal for a new 
international treaty [the Outer Space Treaty] that would be modeled 
after the Antarctic Treaty of 1959 \12\ in order to prevent a new form 
of colonial competition in outer space.\13\
---------------------------------------------------------------------------
    \10\ Prior to the launch of Sputnik-1, the Soviet Union did not 
limit its sovereignty to the stratosphere and regarded outer space 
above its territory part of its sovereign control. However, the launch 
of Sputnik-1 challenged this claim of sovereignty as Sputnik would be 
clearly violating the ``territory'' of other nations. The Soviets when 
confronted with this conundrum tried to explain Sputnik had not 
violated the territory of other nations as it did not pass over the 
territory of those nations, but rather the territories of other nations 
passed beneath Sputnik. See Delbert R. Terrill, Jr., The Air Force Role 
in Developing International Space Law, Air University Press, May 1999, 
pp. 27-30.
    \11\ Id. at pp. 3-9.
    \12\ See generally, Antarctic Treaty, June 21, 1961, 12 UST 794; 
402 UNTS 7.
    \13\ See generally, Narrative, Treaty on Principles Governing the 
Activities of States in the Exploration and Use of Outer Space, 
Including the Moon and Other Celestial Bodies (Outer Space Treaty), 
Bureau of Arms Control and Compliance, Department of State, available 
at https://www.state.gov/t/isn/5181.htm.
---------------------------------------------------------------------------
    The Outer Space Treaty served its Cold War role well. However, the 
question is begged whether it is relevant in a post-Cold War 
geopolitical environment and whether its purpose to prevent 
geopolitical competition in outer space is impeding development of 
outer space in particular the development of outer space by the private 
sector. Certainly, the interpretation of the Outer Space Treaty by the 
United States to ``allow'' the harvesting of ``space resources'' by 
U.S. citizens by classifying a property interest in space resources as 
an activity leading to a property interest illustrates the limitations 
of the Outer Space Treaty with regards to private enterprise.\14\ It 
also represents the limitations of the policy position taken the United 
States prior to and in response to the Bogota Declaration \15\ of 
1976.\16\ In other words, the Outer Space Treaty is being stretched to 
permit the extraction and ownership of space resources, but it cannot 
be stretched to provide commercial operators with the holy grail of 
title to sections of or celestial bodies in their entirety.
---------------------------------------------------------------------------
    \14\ In its simplest terms 51 U.S.C Sec. 51303 creates a usufruct. 
A usufruct is a real property interest that can simply be described as 
the conjoining of the right to ``use'' property and the right to the 
``fruits'' of that use. In other words, while ``use'' grants a property 
interest that allows a private person to use resources belonging to the 
land of another to support their occupancy on the land, a usufruct 
allows the person to harvest the fruits of the occupied land and 
convert it to their own use, i.e., possess, own, transport, use, and 
sell. However, in the context of international law, ``use'' and 
``usufruct'' are synonymous and considered an activity that creates a 
property interest in personal property as opposed to a real property 
interest that permits an activity, i.e., mining. The recognition of the 
need to define an usufruct or ``use'' as an activity and not a real 
property interest confirms the understanding of the Outer Space Treaty 
does not permit a real property interest. Compare, Louisiana Mineral 
Code, La. R.S. Sec. 31:21, which defines a usufruct for minerals as a 
``mineral servitude'' where ``[a] mineral servitude is the right of 
enjoyment of land belonging to another for the purpose of exploring for 
and producing minerals and reducing them to possession and ownership.''
    \15\ The Bogota Declaration was an attempt by nations lying on or 
near the equator to make sovereign territorial claim of corresponding 
sections of geosynchronous orbital slots reside. Given the unique 
nature of geosynchronous orbit, the equatorial nations signing the 
Declaration stipulated because of the unique attributes of 
geosynchronous orbital slots, they represent a limited natural resource 
that was better administered by the nations under which the slots 
reside as opposed to administration by the International 
Telecommunications Union (ITU). The Declaration was flatly rejected by 
the major spacefaring nations and non-spacefaring nations alike, and 
the United States took the opportunity in responding to the Declaration 
to announce its own policy positions with regards to commercial 
activities in outer space.
    \16\ The United States has taken the position the ``province of all 
mankind'' provisions are compatible with conducting and developing free 
enterprise and the right to determine how it shares the benefits and 
results of U.S. space activities. See J.I. Gabrynowicz, the 
``Province'' and ``Heritage'' of Mankind Reconsidered: A New Beginning, 
p. 694, citing Christol, C.Q. (1982), The Modern International Law of 
Outer Space, p. 40.
---------------------------------------------------------------------------
Amendment or Withdrawal From the Outer Space Treaty?
    The effect of the Outer Space Treaty on private enterprise and real 
property rights are at the center of the controversy as to whether to 
seek amendment or withdraw. Amendment to the Outer Space Treaty is 
permitted per Article XV:

        Any State Party to the Treaty may propose amendments to this 
        Treaty. Amendments shall enter into force for each State Party 
        to the Treaty accepting the amendments upon their acceptance by 
        a majority of the States Parties to the Treaty and thereafter 
        for each remaining State Party to the Treaty on the date of 
        acceptance by it.\17\
---------------------------------------------------------------------------
    \17\ Treaty on Principles Governing the Activities of States in the 
Exploration and Use of Outer Space, Including the Moon and Other 
Celestial Bodies, October 10, 1967, art. XV, 18 UST 2410.

    While many parties to the Treaty express the desire to amend 
provisions for various reasons from time-to-time, none of the Big Three 
(United States, Russian Federation and People's Republic of China) have 
shown an interest in doing so. Even if amendment was politically 
palatable, the proposed amendment(s) would have to be approved by a 
majority of the parties of the Treaty.\18\ Yet, when it comes to the 
holy grail of title to sections of or celestial bodies in their 
entirety, amendment to the res communis principle is politically 
unviable and would undermine the foundation of the Outer Space Treaty 
itself.\19\ This means amending the Outer Space Treaty may not be able 
to solve the fundamental issue of real property rights that is a 
central interest for private sector development and settlement.\20\
---------------------------------------------------------------------------
    \18\ In the case of non-interference with space resource 
extraction, agreement could be made bilaterally between two nations 
through a non-binding protocol as opposed going through an amendment 
process. This idea is beyond the scope of this Memorandum but 
illustrates optional methods of addressing some of the short-comings of 
the Outer Space Treaty.
    \19\ There is also the matter of the soft-power response to the 
United States unilaterally seeking to amend the Outer Space Treaty. 
Geopolitics being what it is, many of the non-developed countries (with 
encouragement from the Russian Federation and perhaps China) would 
raise the specter of the United States seeking to leverage its status 
as a superpower to get what it wants. On the other hand, the government 
of Luxembourg has suggested amendment to the Outer Space Treaty might 
be in order to address concerns its legislative body has raised with 
regards to space resources. Allowing a nation like Luxembourg to broach 
the topic of amendment with the United States riding its coattails 
might be a path to amendment. Yet, any amendment Luxembourg might 
propose would still not reach the level of change needed to acquire 
real property rights.
    \20\ A possible amendment that might allay the concerns of private 
enterprise is the idea of ``exclusion zones'' around the area of an 
activity authorized under Article VI. However, since any personnel and 
space objects performing activities under Article VI are subject to the 
continuing jurisdiction or Article VIII, there is an argument these 
exclusion zones would represent ``pockets of national appropriation'' 
of a celestial body, which would violate Article II of the Outer Space 
Treaty. See Treaty on Principles Governing the Activities of States in 
the Exploration and Use of Outer Space, Including the Moon and Other 
Celestial Bodies, October 10, 1967, art. II & art. VIII, 18 UST 2410.
---------------------------------------------------------------------------
    In order to address the issue of real property rights, it may be 
necessary to withdraw from the Outer Space Treaty in its entirety. 
Article XVI provides for withdrawal:

        Any State Party to the Treaty may give notice of its withdrawal 
        from the Treaty one year after its entry into force by written 
        notification to the Depositary Governments. Such withdrawal 
        shall take effect one year from the date of receipt of this 
        notification. \21\
---------------------------------------------------------------------------
    \21\ Treaty on Principles Governing the Activities of States in the 
Exploration and Use of Outer Space, Including the Moon and Other 
Celestial Bodies, October 10, 1967, art. XVI, 18 UST 2410.

    Withdrawal from the Outer Space Treaty would be no small matter as 
the geopolitical backlash would be considerable. Such a decision would 
not be made overnight and would require significant consideration of 
the potential ramifications not only by the Department of State but 
other agencies including NASA, the Department of Defense, NOAA, the 
intelligence community and any agency with duties that relate to outer 
space activities and international law and relations. Certainly, non-
governmental organizations would be queried as to their opinion as 
would academia and the Senate Foreign Relations Committee.\22\
---------------------------------------------------------------------------
    \22\ Even though the Senate would weigh in on potential withdrawal 
from the Outer Space Treaty, the final decision would remain with the 
Executive Branch, especially given the Outer Space Treaty permits 
withdrawal. That does not preclude the members of the Senate voicing 
their opposition.
---------------------------------------------------------------------------
    The underlying concern to withdrawal is whether the benefits of 
withdrawing from the Outer Space Treaty would outweigh the geopolitical 
and national security implications withdrawal would trigger. If and 
when the U.S. invoked Article XVI, the withdrawal process would 
instigate condemnations and implicate the trustworthiness of the United 
States with geopolitical adversaries like the Russian Federation who 
would use the announcement to enhance its own soft-power in the United 
Nations and particularly among the smaller space-faring and the non-
space-faring nations.\23\ Even more unsettling, withdrawal could also 
find opposition from traditional geopolitical allies. That being the 
case, unilateral withdrawal from the Outer Space Treaty would be a 
politically painful process for the United States to endure.
---------------------------------------------------------------------------
    \23\ It's unclear how the People's Republic of China would respond 
to an announcement of withdrawal. On the one hand, China could take the 
opportunity to enhance its soft-power standing in the United Nations 
and level political rhetoric against the United States. On the other 
hand, it could take a stance similar to ``space resources'' and quietly 
watch while the United States is pummeled with the political fallout 
and then announce its own withdrawal following the path the United 
States created without paying the political price.
---------------------------------------------------------------------------
    However, the United States could mitigate some of the political 
fallout by filling in the legal vacuum during the withdrawal process 
with customary international law. As part of the withdrawal process, 
the United States could announce its intention to recognize as custom 
certain principles and legal obligation in the Outer Space Treaty.\24\ 
For example, the United States could agree to recognize Articles III 
through XII as binding customary international law subject to its own 
interpretation through state practice. Most critically, the United 
States would have to address how it intends to replace the res communis 
principle in the Outer Space Treaty in a manner that would draw 
international consensus, especially seeing as unilateral withdrawal 
from the Treaty would likely be precipitated on the rationale of 
providing its citizens greater rights and flexibility in outer space 
activities and in particular title to sections of celestial bodies or 
celestial bodies in their entirety.
---------------------------------------------------------------------------
    \24\ Customary international law is defined as international 
obligations arising from established state practice, as opposed to 
obligations arising from formal written international treaties. It 
consists of two components. First, there must be a general and 
consistent practice of states. This does not mean that the practice 
must be universally followed; rather, it should reflect wide acceptance 
among the states particularly involved in the relevant activity. 
Second, there must be a sense of legal obligation, or opinio juris sive 
necessitatis. In other words, a practice that is generally followed but 
which states feel legally free to disregard does not contribute to 
customary law; instead, there must be a sense of legal obligation to 
the international community. States must follow the practice because 
they believe it is required by international law, not merely because 
they think it is a good idea, or politically useful, or otherwise 
desirable. The definition of customary international law is nuanced 
because not all states are equal when considering whether a state's 
practice and opinio juris sive necessitatis reaches the level of 
customary international law. See United States v. Bellaizac-Hurtado, 
700 F.3d 1245, 1252 (11th Cir. 2012). In the case of the Outer Space 
Treaty, there is an argument since the provisions of the Treaty have 
been adhered to for nearly half a century they have already entered the 
realm of custom.
---------------------------------------------------------------------------
    A decision to withdraw would invite substantial resistance not only 
from the geopolitical community but from domestic political arena as 
well most notably from the Senate, especially in the current hyper-
partisan political atmosphere. Additionally, academia and other non-
governmental organizations that have a vested interest politically and 
ideologically to maintain the Outer Space Treaty would push back with 
the media likely creating narrative to provide pressure against a 
withdrawal effort. Indeed, the deciding factor of a successful 
withdrawal effort may lie with the political willingness to resist the 
resulting international and domestic pressure sure to be applied.
Conclusion
    Amending or withdrawing from the Outer Space Treaty would not be 
easy nor should the decision to do so be trivialized. For such a 
decision to be made, fundamental consideration must be given to whether 
the status quo of the Outer Space Treaty is relevant to the growing 
realities of the current geopolitical environment and whether it can be 
stretched to meet the long-term demands of the private sector while at 
the same time taking into consideration the national security interests 
of the United States. The result of a decision to amend or withdraw 
from the Outer Space Treaty lies in no small part as to whether we look 
upon the Outer Space Treaty as a tool to meet a pragmatic geopolitical 
end or revere it as an immutable geopolitical icon.
            Respectively submitted,
                                        Michael J. Listner.
                                 ______
                                 
                                       Heinlein Prize Trust
                                                       May 22, 2017

Hon. Ted Cruz,
Hon. Edward J. Markey,
Commerce, Science, and Transportation Committee,
Space, Science, and Competitiveness Subcommittee,
United States Senate,
Washington, DC.

Dear Chairman Cruz and Ranking Member Markey:

    The Heinlein Prize Trust honors the memory of renowned American 
author Robert A. Heinlein and his wife, Virginia, by awarding prizes 
for the advancement of commercial spaceflight and conducting a variety 
of educational outreach activities. As its trustees, we write first to 
thank you for your leadership in passing the Commercial Space Launch 
Competitiveness Act, which promotes the development of commercial 
spaceflight in the United States in a manner consistent with Robert 
Heinlein's vision; and second to address issues related to the Outer 
Space Treaty which you have raised in recent public comments and your 
Subcommittee's hearing this month.
    We recognize that the Outer Space Treaty was a Faustian compromise 
with the USSR. It was an attempt to prevent an Evil Empire from gaining 
an upper hand in the strategically vital realm of outer space, and as a 
result it left on the bargaining table a wide range of opportunities 
for the United States. That said, the treaty has proven that it can be 
the foundation for productive international cooperation to explore and 
develop outer space--and perhaps more importantly, it has not yet been 
shown to impede the efforts of the United States or U.S. entities.
    Of course, Congress and the Administration must remain vigilant to 
prevent the Outer Space Treaty--or any international law--from being 
used in a manner contrary to its original intent so that it binds the 
United States in ways not accepted by our government at the time it was 
signed and ratified. When international legal activists attempt to 
assert that the United States has international responsibility for the 
activities of nongovernmental actors as a result of the treaty, those 
arguments should be refuted. Space should not be different from 
aviation and admiralty in that respect.
    To the extent that adjustments are needed, we strongly recommend 
updating U.S. law rather than reopening the Outer Space Treaty wherever 
possible. Fortunately, the terms of the Treaty are loose enough that 
nations can define its application by adopting national laws 
controlling national activities. The Commercial Space Launch 
Competitiveness Act's provisions on property rights in space 
resources--by our estimation, the most sweeping legislative recognition 
of property rights in human history--is an excellent example.
    The Outer Space Treaty has worked well for 50 years. It is accepted 
by more than 100 nations. Trying to change the Treaty now will create 
significant risks of delay and confusion. Such risks should be avoided, 
especially when the option of changes to national law exists.
    Thank you again for your leadership on these matters. As Robert and 
Virginia Heinlein saw so clearly, space is inherently multinational and 
international. All countries are neighbors sharing an ``upper border,'' 
outer space. History teaches us that nations flourish as neighbors when 
there is liberty and where commerce is managed with minimum regulation 
within a framework of strong human rights. Space resources are 
effectively infinite, thus cooperation in their use should benefit all 
stakeholders much more than competition. The emergence of humanity into 
the cosmos can be a non-zero sum adventure. All of humanity will win if 
there is enough ordered liberty.
            Sincerely,
                                            Arthur M. Dula,
                                                           Trustee.
                                      J. Buckner Hightower,
                                                           Trustee.

    Senator Cruz. We will now turn to the first of two panels 
that this committee will hear. The first panel--we have three 
witnesses. I want to thank each of you for being here today.
    Our first witness is Mr. James Dunstan, who is a Senior 
Adjunct Fellow at Tech Freedom and the founder of Mobius Legal 
Group. Mr. Dunstan has spent more than 33 years counseling 
private businesses in all aspects of doing business in outer 
space and has assisted Federal and state governments with space 
law issues.
    Our second witness is Ms. Laura Montgomery, who is the 
proprietor of Ground Based Space Matters law offices and 
publishes groundbasedspacematters.com. Ms. Montgomery works on 
issues of regulatory space law with an emphasis on commercial 
space transportation, human space flight, and the Outer Space 
Treaty. Ms. Montgomery has spent over two decades with the 
Federal Aviation Administration's Office of the Chief Counsel, 
where she represented the FAA at the United Nations Legal 
Subcommittee of the Committee on Peaceful Uses of Outer Space.
    Our third witness is Mr. Matthew Schaefer, who is the 
Veronica A. Haggart and Charles R. Work Professor of 
International Trade Law and Co-Director of the Space, Cyber, 
and Telecommunications Law Program at the University of 
Nebraska College of Law. Mr. Schaefer has taught international 
law, international business, and foreign relations-related 
courses since 1995 and has directed the Space and Cyber Law 
Program since its creation in 2006. Mr. Schaefer is also Co-
Chair of the American Branch of the International Law 
Association's Space Law Committee, and I would like to note 
that Mr. Schaefer previously served as the Director in the 
International Economic Affairs Office of the National Security 
Council at the White House in 1999.
    Before we hear testimony from the witnesses, I want to 
welcome and recognize the Ranking Member of the Full Committee, 
Senator Nelson, who has a long and enduring issue on the topic 
of space.

                STATEMENT OF HON. BILL NELSON, 
                   U.S. SENATOR FROM FLORIDA

    Senator Nelson. Well, I am very, very pleased that we have 
made the progress that we've made. The commercial space sector 
has been truly outstanding in the accomplishments, and that's 
exactly what was intended as we started some 7 years ago this 
dual track, where we had a commercial space program that was 
going on with regard to astronauts; a commercial space program 
going to and from the International Space Station; and, 
simultaneously, we have the NASA program to go out and explore 
the cosmos.
    And, of course, people don't realize it, but it's right 
here. Within the next year and a half, both commercial rockets 
with crew will launch, as will the largest rocket ever, the 
SLS, with its spacecraft, Orion, on top. So, indeed, Mr. 
Chairman, what's going to happen is the American people are 
going to really get engaged again.
    I want to add a word of caution, however, because the 
budget that was just submitted by the President just today--it 
would cut a half a billion dollars from NASA. There are some 
positive elements, like full funding for the commercial crew, 
and some not-so-positive elements, such as the cuts to Earth 
science, to education, and to exploration. But the spending 
plan simply does not go far enough for NASA or for various 
space centers, including our space center, the Kennedy Center 
in Florida.
    As we have all said in the past, we're going to work 
together on both sides of the aisle, and NASA is not partisan. 
NASA is nonpartisan. We're going to work together to make sure 
the agency gets what it needs so that we can keep building this 
momentum. And, Mr. Chairman, we're going to Mars.
    Senator Cruz. Amen and Hallelujah.
    With that, Mr. Dunstan, you may start us off.

            STATEMENT OF JAMES E. DUNSTAN, FOUNDER, 
                    MOBIUS LEGAL GROUP, PLLC

    Mr. Dunstan. Chairman Cruz, Ranking Members Markey and 
Nelson, and members of the Subcommittee, thank you for the 
opportunity to testify here today. I am truly an orphan of 
Apollo. As children, my generation watched the Apollo 
astronauts walk on the Moon. We were promised that if we 
studied hard and ate our vegetables, we too could go into 
space. Unfortunately, that didn't happen.
    I was in law school when the space shuttle started to fly. 
Again, we were promised flights every 2 weeks and that we'd be 
able to fly experiments for as little as $10,000. None of that 
happened, either. At its peak, the shuttle flew only nine times 
in 1985, and any hope of conducting affordable commercial 
activities aboard the shuttle died with the Challenger.
    But space commerce has taken off anyway on private 
vehicles. The industry now nears $350 billion annually in 
revenue, mostly in commercial satellite services, and we're 
seeing the dawn of a radical new generation of launch vehicles, 
with fly back first boosters, and fly back second stages just 
over the horizon. Launch costs may fall by an order of 
magnitude.
    Startups have raised real financing to do everything from 
on-orbit servicing to asteroid mining. For these companies, 
once esoteric provisions of the Outer Space Treaty could create 
real business risks. It's time for Congress finally to address 
the relationship between government and private sector under 
Article VI of the Outer Space Treaty, something I assumed we 
would have tackled imminently when I graduated from law school 
almost 35 years ago.
    Article VI makes each country responsible and liable for 
the activities of its citizens and companies in space. The 
Treaty also leaves up to each country to decide how to 
authorize and supervise private activities. In other words, 
Article VI is not self-executing in governing private citizens. 
Just consider the Supreme Court case in Medellin v. Texas, 
which Chairman Cruz argued as the Solicitor General for Texas. 
Quoting Federalist Number 33, the court said that whether a 
Treaty is self-executing means, ``comparing laws that 
individuals are bound to observe as the supreme law of the land 
versus a mere Treaty dependent on the good faith of the 
parties.'' Article VI falls into this latter category. Thus, 
even failing to adopt any regulation at all would not violate 
the Outer Space Treaty, because there is the backstop of the 
national liability for private citizen activities.
    Federal law already authorizes Americans to operate in 
outer space. Americans have inalienable rights to life, 
liberty, and the pursuit of happiness, as the Declaration of 
Independence puts it. The Tenth Amendment made this principle 
binding constitutional law--the powers not delegated to the 
United States by the Constitution, nor prohibited by it to the 
states, are reserved to the States respectively, or to the 
people. In short, absent a constitutionally consistent law 
prohibiting innovative space activities, Americans are already 
authorized to pursue those activities. In other words, that 
which is not forbidden is permitted.
    We do have laws and regulations, plenty of them, that 
govern the activities of private citizens in space. Space 
entrepreneurs need permission from multiple government 
agencies. This includes the FAA AST for launch, FCC, NOAA, 
NASA, and the DoD. Entities conducting launches have to answer 
to both state and local authorities, everything from assessing 
environmental impact of launches to obtaining permits to 
transport their vehicles across state and county lines.
    The problem isn't a regulatory vacuum, but a patchwork of 
cumbersome, burdensome, and sometimes inconsistent regulations. 
Congress should clean up this mess at the same time that it 
addresses how to govern innovative space uses not clearly 
governed by existing rules.
    Precisely because the United States Constitution promises 
me that I can go to outer space, and precisely because Article 
VI is not self-executing, Congress is in a unique position 
internationally to show the world that we recognize our 
liability under Article VI and our obligation to ensure that 
our private citizens abide by the self-executing provisions of 
the OST, no nuclear weapons in space, no military bases on the 
Moon or celestial bodies, and no appropriation of a celestial 
body.
    The United States can thus lead internationally by adopting 
a sensible and non-burdensome regulatory regime to ensure 
treaty compliance. This would put the rest of the world on 
notice that countries that would offer flags of convenience for 
outer space activities cannot dodge their liability 
obligations. This would also promote the goal of Article I, the 
peaceful exploration and use of outer space, while protecting 
U.S. assets, both public and private, from irresponsible 
foreign companies.
    There is also nothing to be gained right now from reopening 
the current Treaty regime. Once the United States demonstrates 
a light-touch regime consistent with treaty requirements can 
work, then reopening the treaties might make sense. But doing 
so now would allow countries that aren't friendly to the United 
States or American capitalism to layer on costly regulatory 
burdens that the United States would have to reject as we 
rejected similar provisions of the Moon Treaty.
    My written testimony, co-authored by Berin Szoka, President 
of TechFreedom, explores in greater depth the United States' 
responsibilities under Article VI.
    Thank you again for the opportunity to testify, and I look 
forward to answering your questions.
    [The prepared statement of Mr. Dunstan follows:]

          Prepared Statement of James E. Dunstan & Berin Szoka
    Congress took the first (and long-overdue) step toward recognizing 
the rights of private citizens to explore and use the resources of 
outer space in the Commercial Space Launch Competitiveness Act of 2015 
(CSLCA). The next challenge is for Congress to address the so-called 
``regulatory gap'' for innovative space activities beyond today's 
established satellite and launch industries--such as asteroid and lunar 
mining, on-orbit repair and construction, and private space habitats. 
This implicates Article VI of the Outer Space Treaty (``OST''), which 
requires that nations ``authorize'' and ``continually supervise'' the 
activities of their citizens in outer space to ensure compliance with 
overall treaty obligations. This does not mean, however, that the 
United States must either (a) re-open the Treaty for negotiation or (b) 
pass legislation to regulate private activities in space. This is 
because:

   The ``authorization'' and ``supervision'' components of 
        Article VI are subsidiary to the overall structure of Article 
        VI, which places both the responsibility and liability for 
        treaty violations and damages for space activities on the 
        Nation itself. A failure to either authorize or continually 
        supervise the activities of private nationals merely increases 
        the risk that a country might be liable for damages;

   Article VI is not ``self-executing,'' meaning that the 
        authorization and supervision language is not the ``law of the 
        land'' in the United States, absent domestic legislation 
        implementing Article VI. The case of Medellin v. Texas makes a 
        clear distinction between treaty provisions that, by their 
        language and nature, become the ``law of the land'' in the 
        U.S., and those treaty provisions that require domestic 
        implementation to have the force of law;

   The Tenth Amendment (echoing the Declaration of 
        Independence) provide the required ``authorization'' component 
        of Article VI for Americans;

   Congress has the discretion, as a matter of both 
        international and American constitutional law, to decide how to 
        implement its Article VI responsibility to provide ``ongoing 
        supervision'' for private American actors in space;

   There are plenty of supervisory regulations in place 
        already, many of which are overlapping, cumbersome, and 
        inconsistent;

   The best way to protect American interests is for Congress 
        to enact a regulatory framework that takes the lightest touch 
        possible in order to satisfy our Treaty obligations while also 
        protecting both public and private American assets--by setting 
        precedent for other nations to follow in adopting their own 
        domestic legislation that will ensure that foreign private 
        companies also act responsibly in space; and

   Reopening the international space law treaty regime would, 
        at least prior to the U.S. establishing its own domestic 
        regulatory regime (and perhaps also demonstrating that such a 
        regime can work), no doubt look much like the burdensome 
        provisions of the Moon Treaty, which the U.S. has previously 
        rejected.

    Congress must also streamline and harmonize the patchwork 
regulatory regime put into place in the 1980s and 1990s on the 
assumption that there would be only a dozen or so commercial flights a 
year that would carry no more than 20 payloads to space.
    Congress' next steps after adoption of the CSLCA will chart the 
course for space development for the next century. We call the 
attention of the Committee to nine themes:
1.  The So-called ``Regulatory Gap'' and Article VI of the OST
    This hearing is focused on the impact of the Outer Space Treaty on 
private activities in space. In Section 108 of the CSLCA, Congress 
directed the White House to identify any regulatory gaps and suggest 
ways of closing those gaps to ensure compliance with U.S. obligations 
under the OST. The White House responded in April, 2016, with its 
analysis that correctly noted that currently no Federal agency 
regulates such ``innovative space activities'' such as asteroid mining 
and commercial lunar landings.\1\ The White House suggested a ``Mission 
Authorization'' approach, with the FAA/AST taking the lead role in an 
inter-agency review of applications for missions that don't squarely 
fall into the regulatory jurisdiction of any current agency (FAA/AST 
for launches, FCC for frequency, NOAA for remote sensing, NASA for 
NASA-backed payloads and DoD for DoD payloads).
---------------------------------------------------------------------------
    \1\ The OSTP report is available at: https://
obamawhitehouse.archives.gov/sites/default/files/microsites/ostp/
csla_report_-4-16_final.pdf (last checked, May 18, 2017).
---------------------------------------------------------------------------
    The White House report notes, correctly, that some planned missions 
involve activity that is not currently regulated and then concludes, 
incorrectly, that the U.S. is not meeting its obligations under Article 
VI. But Article VI does not, in and of itself, require any specific 
form of authorization and supervision--or that, in the absence of such, 
non-governmental activities are prohibited. Consider Article VI in its 
entirety:

        States Parties to the Treaty shall bear international 
        responsibility for national activities in outer space, 
        including the Moon and other celestial bodies, whether such 
        activities are carried on by governmental agencies or by non-
        governmental entities, and for assuring that national 
        activities are carried out in conformity with the provisions 
        set forth in the present Treaty. 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. When activities are carried on in outer space, 
        including the Moon and other celestial bodies, by an 
        international organization, responsibility for compliance with 
        this Treaty shall be borne both by the international 
        organization and by the States Parties to the Treaty 
        participating in such organization.

    Thus, Article VI places the responsibility and liability for breach 
of the clear prohibitions contained in the OST on the launching state. 
These prohibitive provisions are:

  1.  No placing of nuclear weapons or weapons of mass destruction in 
        outer space (Article IV);

  2.  No establishing military bases on the Moon or other celestial 
        bodies (Article IV);

  3.  Space and celestial bodies are not subject to claims of 
        appropriation by means of use or occupation (Article II);

  4.  Avoiding harmful contamination (Article IX); and

  5.  Avoiding harmful interference (Article IX).

    There is a strong argument that the last two prohibitions are not 
self-executing (see discussion below), but for the sake of this 
argument, we assume that they are.
2. Article VI Allows Congress to Choose How to Authorize and Supervise 
        the Activities of American Companies
    While Article VI requires each nation to ``authorize'' and 
``continually supervise'' the activities of its citizens, the extent of 
such oversight only extends to compliance with the self-executing 
Treaty provisions (i.e., that its citizens don't place a WMD in space, 
make a real property claim on a Celestial Body, or attempt to construct 
a military base). Article VI says that countries must assure that 
``activities are carried out in conformity with the provisions set 
forth in the present Treaty.''
    How a country chooses to assure that its citizens do not violate 
these provisions is completely up to that country. Since Articles VI 
and VII (making countries liable for damages that are caused by their 
own activities or those of their nationals) place liability for any 
activities of citizens clearly upon the launching state, the amount of 
supervision a country wishes to place is, in terms of treaty 
interpretation, completely up to the country, depending upon the risk 
the country wishes to assume. Countries fearing that the activities of 
their citizens could result in international liability may choose to 
heavily ``supervise'' (through highly proscriptive ex ante regulation) 
the space activities of their citizens--up to, and including, 
prohibiting private space activities entirely. But countries that 
conclude that the benefits of innovative space activities outweigh the 
liability risks may consider a lighter ``regulatory touch,'' all the 
way to becoming a ``flag of convenience'' with no supervision 
whatsoever. A lack of supervision is not, in and of itself, a violation 
of international law; it merely raises the chances that a non-
governmental activity might run afoul of the OST prohibitions and that 
the country responsible be held liable for consequential damages 
because that country's citizens seek to engage in a behavior that is a 
per se violation of the OST, or creates a probability that those 
activities will interfere with the activities of another space activity 
resulting in harm (e.g., orbital collision or frequency interference). 
Congress now has the opportunity to decide where on that continuum of 
regulation it wishes to place the United States.
3. Article VI is Not Self-Executing
    In legal terms, this means that Article VI is not self-executing: 
it requires domestic legislation in order to be enforceable in U.S. 
courts. Medellin v. Texas¸ 552 U.S. 491 (2008). The distinction 
between a treaty provision that represents an international commitment 
versus a treaty provision that sets forth specific international law 
that becomes the ``law of the land'' is a cornerstone of U.S. 
constitutional law and was discussed in the Federalist Papers, No. 33, 
``comparing laws that individuals are `bound to observe' as `the 
supreme law of the land' with `a mere treaty, dependent on the good 
faith of the parties.' '' Medellin, 552 U.S. at 499. While there are 
clear prohibitions contained in the Outer Space Treaty which are self-
executing, the remaining provisions of the OST are aspirational and 
advisory, leaving the specific implementation of those concepts up to 
individual nations. Like the legal issue (consular notification rights 
of criminal defendants) in the convention at issue in Medellin (the 
Vienna Convention on Consular Relations), the Article VI falls into 
this latter category of non-self-executing provisions of the OST.
4. The United States has already Authorized Innovative Space Activities
    The White House Section 108 Report also ignores the fact that in 
the United States, innovative outer space activities are already 
authorized. That authorization predates the space era by nearly 200 
years. As Americans, we declared in 1776 that ``[w]e hold these truths 
to be self-evident, that all men are created equal, that they are 
endowed by their Creator with certain unalienable Rights, that among 
these are Life, Liberty and the pursuit of Happiness.'' The Tenth 
Amendment to the U.S. Constitution carries through this concept when it 
states that ``[t]he powers not delegated to the United States by the 
Constitution, nor prohibited by it to the states, are reserved to the 
States respectively, or to the people.'' In short, absent a 
constitutionally consistent law prohibiting ``innovative space 
activities,'' Americans are authorized to pursue those activities. In 
other words, that which is not forbidden is permitted.
5. Adopting a Complete Laissez-Faire ``Flag of Convenience'' Regime 
        Would Clearly Not Be in the Interests of the United States
    As noted above, because Articles VI and VII of the OST ultimately 
place liability on the launching state, how the U.S. chooses to 
``continually supervise'' the activities of its citizens in space is a 
matter of risk assessment. Nonetheless, strong policy reasons (besides 
the potential liability of the U.S. Government, and therefore, the U.S. 
taxpayer) exist as to why the United States should not abdicate all 
regulatory authority over the activities of its citizens in space. On 
two of the Treaty's five principal requirements--the three bright-line 
rules--the foreign policy interests of the United States should be 
rather obvious: We absolutely do not want China or Russia or any other 
power (1) placing nuclear weapons or weapons of mass destruction in 
outer space (Article IV), (2) establishing military bases on the Moon 
or other celestial bodies (Article IV), or (3) placing an object on a 
strategic place and then claiming an absolute, permanent property right 
on that place (rather than a non-interference zone around ongoing 
activity). We cannot insist through diplomatic consultation that China 
or Russia screen their companies' (including state-controlled 
enterprises) planned missions to ensure compliance with these 
prohibitions without having a clear mechanism for doing the same 
ourselves.
    Nor can we, without our own system of appropriation 
``supervision,'' protect the rights of American public and private 
actors under the other two principal requirements of Article VI:

  1.  Avoiding harmful contamination (Article IX); and

  2.  Avoiding harmful interference (Article IX).

    It is not difficult to see how American companies and government 
actors (both NASA and military/intelligence) could suffer at the hands 
of foreign companies that push the envelope on these two principles to 
elevate them into a quasi-claim of appropriation--nor why American 
companies and government actors would benefit from establishing both 
more specific standards and dispute resolution mechanisms on all three 
counts. While relying on international treaty making to tackle these 
highly fact and science-specific problems, the U.S. can continue to 
lead the way. The U.S. has done so on technical committees such as the 
Inter-Agency Space Debris Coordination Committee (IADC), which helped 
develop the orbital debris mitigation standards that were first adopted 
by the United States, and are now quickly becoming customary 
international law. Congress should task NASA and other expert agencies 
to develop technical standards on use, collocation of multiple bases or 
other uses (e.g., robotic mining or telescopes) on a celestial body, 
and ways to mitigate interference among multiple users, such as between 
two groups extracting minerals in adjacent areas or between a mining 
operation (which produces dust) and a telescope (which might be subject 
to interference from dust). Such standards could help to avoid disputes 
in the first place, just as coordination minimizes disputes among 
spectrum users, while also providing standards for resolving disputes 
when they do happen.
    Ultimately, such standards--and the adjudicatory mechanisms through 
which technical standards evolve into legal standards, and change over 
time--will be of greatest benefit to American companies (and government 
actors) when they address not only disputes with other American 
entities, but also with foreign entities. While it is theoretically 
possible to have two systems operating side by side--one for 
interactions among U.S. parties and one for interactions among U.S. and 
foreign parties--the difficulty inherent in such separate systems, and 
the advantages of having, to the greatest extent possible, a harmonized 
system for both, would be considerable.
    One thing is certain: whatever the United States does will set 
precedent for the rest of the world, as we did with the issue of 
orbital debris mitigation. For these reasons, the U.S. should continue 
to lead the international community in exploring and adopting standards 
for non-interference as well as the other prohibitions contained in the 
OST--if for no other reason than to set the precedent in the 
international community that the clear prohibitions contained in the 
OST must be enforced by all nations on all citizens of the world. In 
other words, ensuring some effective scrutiny over U.S. companies' 
activities will, to the extent that other nations follow suit, protect 
U.S. actors, both public and private alike, from irresponsible foreign 
actors.
    Rather than merely hoping that other countries will follow our 
lead, the United States should give other countries an incentive to 
enact domestic legislation that offers equivalent protections to that 
of the U.S.--especially in the standards and mechanisms for resolving 
interference disputes between U.S. parties and parties of that country. 
There is already a directly applicable model for this in the U.S. Code. 
The Deep Seabed Mineral Resources Act of 1979 was passed as an 
alternative to the socialist and impractical resource appropriation 
provisions of the Law of the Sea Treaty, as it was then drafted (and 
under discussion). Rather than negotiate a new treaty, the U.S. law 
simply and elegantly allows the recognition of exclusive mining claims 
issued by other countries that will also recognize U.S. claims through 
``compatible'' legislation.\2\ This model could easily be incorporated 
into U.S. law, avoiding the need for negotiating revisions to the Outer 
Space Treaty or even a new multilateral framework such as a convention.
---------------------------------------------------------------------------
    \2\ 30 U.S.C. Sec. 1428.
---------------------------------------------------------------------------
6. Amending the OST or Entering New Treaty Negotiations at this Time is 
        Not in the Interest of the United States
    Precisely because the ``authorization'' and ``supervision'' 
provisions of Article VI are aspirational and not self-executing, and 
because the U.S. Constitution gives Congress the ability to craft 
domestic legislation that implements Article VI in a way that is both 
consistent with the core provisions of the OST and Congress' desire to 
promote rather than stifle free enterprise in space, Congress should 
not suggest to the Administration or the State Department that the U.S. 
should begin discussions in the international community about amending 
the OST or augmenting Article VI with a new treaty (such as was done to 
flesh out the liability provisions of OST Article VII into the 1972 
Liability Convention). The result of such efforts would inevitably be a 
treaty that the United States would not be able to ratify, because it 
would either (a) contain specific regulatory provisions akin to those 
adopted in the Moon Treaty that would be antithetical to U.S. economic 
interests, or (b) provide international lawyers a way to close the 
``Medellin loophole'' by specifically stating that the requirement that 
countries supervise and authorize the activities of their citizens is 
self-executing--by adopting language specifying what that regulatory 
regime must look like.
    Either way, the United States would lose the flexibility it now 
enjoys, which provides it with a unique opportunity to establish 
domestic law in the United States that is both consistent with Article 
VI, yet still provides U.S. citizens with a light regulatory approach 
that encourages innovation and investment in new outer space 
activities. Most of all, that flexibility means that U.S. policymakers 
can design a regime that will heavily influence what other countries 
do, and the concomitant evolution of international law through new 
conventions (such as those on registration, liability, rescue and 
return) or through customary international law.
    In short, nothing good can come from diving down the ``rabbit 
hole'' of treaty (re)making at this stage. In the future, after the 
U.S. has shown its world leadership by establishing a domestic 
regulatory approach that encourages private sector advancement into 
space while protecting the core values of the OST, then the U.S. will 
be able to negotiate a future treaty from a position of strength, as by 
that time U.S. entrepreneurs will already have established themselves 
as the ``first movers'' in a huge new economic arena and U.S. domestic 
law will have shown itself to work, not just for American companies, 
but also for foreign companies that interact with American companies in 
space, or that choose to launch out of the U.S. to take advantage of 
American domestic space law.
7. Understanding the Depth and Breadth of Current Space Regulation
    At a recent House hearing,\3\ most of the questions asked of the 
panelists involved issues of space traffic management and orbital 
debris. It was frustrating that the expert panel did not forcefully 
respond that every scenario raised in questions is already covered by 
multiple agencies and multiple sets of regulations.
---------------------------------------------------------------------------
    \3\ ``Regulating Space: Innovation, Liberty, and International 
Obligations,'' March 8, 2017.

  1.  If one launches a payload into LEO, FAA/AST regulations require 
        full information about orbital parameters, and the launching 
        party must demonstrate that its orbital choice will not 
        conflict with other users (14 C.F.R. Sec. 415.35), as well as 
        demonstrate that it has complied with orbital debris mitigation 
        standards for ``safeing'' upper stages and disposal at payload 
---------------------------------------------------------------------------
        end of life (14 C.F.R. Sec. 417.129).

  2.  The FCC has similar, yet separately enforced, regulations for 
        anyone seeking a license to communicate with a vehicle or 
        payload (47 C.F.R. Sec. 25.114(d)(14)).\4\
---------------------------------------------------------------------------
    \4\ Examples abound of how the current space regulations are rooted 
in the 1980s. The FCC assumes that all satellite are multi-million 
dollar payloads that take many years to build and launch. See 
Comprehensive Review of Licensing and Operating Rules for Satellite 
Services, FCC 15-167, 30 FCC Rcd 14713, 14736 (December 17, 2015) 
(``Satellite Services Rules Update Order''). The FCC rules further 
require the procurement of multi-million dollar bonds (to minimize the 
warehousing of orbital slots), 47 C.F.R. Sec. 25.165. The application 
fees for satellites are extremely high (See Amendment of the Schedule 
of Application Fees Set Forth in Sections 1.1102 through 1.1109 of the 
Commission's Rules, Order, GEN Docket No. 86-285, 29 FCC Rcd 3276, 
3276,  2 (2014) ($129,645.00 application fee per GEO satellite, 
$446,500.00 application fee per non-GEO (``NGSO'') satellite or 
constellation). Each year satellite operators also have to pay a 
regulatory fee to the FCC of $138,475.00 for GEO satellites, and 
$141,950.00 for NGSO satellite or constellations. Current processing 
times for remote sensing licenses from NOAA are more than a year. 
Further, the regulations adopted even as late as 2006 anticipated the 
placement of a few very large satellites (e.g., LandSat and its 
progeny), and require NOAA to physically visit the downlink sites on an 
annual basis to ensure that they are operated properly. See http://
www.nesdis.noaa.gov/CRSRA/files/
noaa_commercial_remote_sensing_regulatory_affairs_06302015.pdf. This 
NOAA presentation noted that between 1996 and 2010, a total of 26 
licenses were issued (less than two per year). As of October 1, 2010, 
there were a total of six (6) remote sensing satellites in orbit. 
Between 2010 and 2015, 46 licenses were issued (8 per year). As of 
June, 2015, 11 applications were in process and 22 other entities 
informed that they were required to apply for licenses. There are now 
over 100 remote sensing satellites on orbit.

  3.  NOAA, likewise, has rules for those seeking a license for remote 
---------------------------------------------------------------------------
        sensing of the Earth (15 C.F.R. Part 960, Appendix 1: C).

  4.  NASA also has orbital debris and other orbital restrictions (vis-
        a-vis the ISS) that must be satisfied for any NASA-sponsored 
        mission (NASA-STD-8719.14A (74 pages), which puts into effect 
        NASA Procedural Requirement 8715.6, and includes reference to 
        NASA-Handbook (NASA-HDBK) 8719.14).

    So if a company is using a U.S. commercial vehicle to launch a 
remote sensing satellite that will download data to Earth and is 
somehow supported by a NASA contract, it must demonstrate compliance 
with the orbital interference and debris rules of four separate Federal 
agencies.\5\ Worse yet, if any of those agencies determines that the 
debris mitigation statement is insufficient, the company would have to 
amend its statement to all four agencies, triggering another round of 
bureaucratic review and (potentially), a near-endless series of reviews 
and revisions to each of its requests for authorization. This back-and-
forth will become significantly more problematic with higher launch 
volumes.
---------------------------------------------------------------------------
    \5\ The DOD has its own set of regulations for military launches.
---------------------------------------------------------------------------
    The problem, then, is not a ``regulatory gap'' for current space 
activities, but rather a patchwork regulatory system that is complex, 
non-transparent, and extremely expensive to navigate. Before we start 
overlaying a whole new ``Mission Authorization'' regulatory regime on 
innovative space activities, we must first streamline the existing 
regime to reduce cost, redundancy, and most of all, opaqueness, where 
bureaucrats can still pick winners and losers with impunity. Cleaning 
up a bloated regulatory regime will provide far more clarity to the 
space industry than the establishment of an entirely new ``black box'' 
into which one drops applications, and crosses fingers that it won't be 
vetoed, without explanation, by one of several unaccountable agencies. 
Ideally, Congress should clean up the mess of current Federal licensing 
at the same time that it implements any new regime to address its 
Article VI responsibilities.
8. The ``Mission Authorization'' Approach Proposed by the Obama 
        Administration is a Continuation of a ``Black Box'' Policy of 
        the Federal Government Picking Winners and Losers
    Is there an optimal domestic regulatory regime for regulating 
``innovative space activities?'' If there is, it certainly is not the 
``Mission Authorization'' regime set forth in the White House Report 
under Section 108. Under OSTP's ``Mission Authorization'' approach, an 
inter-agency review process would be established for initial 
authorization. As proposed, the process lacks any transparency. There 
is no requirement governing application processing times, no standards 
against which approval or disapproval are measured, no requirement for 
a full (or written) explanation of reasons for denial, and no appeals 
process. In short, the proposed review process looks uncannily like the 
State Department's International Traffic in Arms Regulations (ITAR) 
regime. That process has been abused by different governmental agencies 
countless times since it was imposed, resulting in the near death of 
the United States satellite building industry. It appears that, under 
the Administration's Mission Authorization proposal, as in the ITAR, 
powerful governmental players on the inter-agency review team would 
each have an independent veto on an authorization request. Most likely, 
the applicant would never find out who ``blackballed'' the mission, or 
why.
    If a regulatory regime is adopted for mission authorizations that 
mirrors, or even remotely resembles, the ITAR regime, Congress will 
have failed to execute our Treaty obligations in a way that promotes 
the ``exploration and use'' of space--the overarching goal of the 
Treaty (Article II)--and commercial entities will flee the United 
States to jurisdictions that treat their citizens in a fairer manner, 
just as satellite manufacturers fled the U.S. To avoid repeating the 
mistakes of the ITAR regime, Congress must ensure that:

  1)  The lead agency in the inter-agency process must have the clout 
        to push back against other agencies seeking to thwart private 
        enterprise for their own reasons, which may have little to do 
        with U.S. national interests--and, indeed, may actively 
        frustrate them (such as by strangling American industry). FAA/
        AST, as currently constituted, clearly lacks such clout.

  2)  Clear processing guidelines must keep agencies from blackballing 
        projects on a whim. This will take a significant amount of 
        expertise that is lacking even within FAA/AST. While that 
        office has engineers capable of analyzing launch and reentry 
        risks, it is ill-equipped to analyze, for example, whether 
        Company B can mine an asteroid after Company A has already 
        received authorization for such activities, or to determine how 
        close Company B can land to Company A's lander on the Moon. In 
        short, ``non-interference'' analyses will need to be conducted, 
        which FAA/ATS does not have the expertise to do. Agencies that 
        do have that expertise might have also an interest in 
        conducting similar missions, giving them perverse incentives 
        that could call into question the integrity of their analyses.

  3)  The process must be transparent. Applicants must be able to find 
        out where in the process they are, what agencies might have 
        questions about the mission, and when a decision will be 
        rendered.

  4)  Any denial must come with a fully reasoned decision, so that 
        rejected registrants know what they must do to amend their 
        registration before resubmitting it. The ability to reject 
        registrations without such explanations will effectively 
        convert a mission registration regime into a mission 
        authorization regime by giving unchecked discretion--veto 
        rights, in fact--to, potentially, each of the reviewing 
        agencies.

  5)  There must be an appeal process, whereby an applicant can 
        challenge that decision in court. In short, the Administrative 
        Procedures Act must apply to this process, rather than the 
        ``black box'' that characterizes the ITAR process.

    While it is theoretically possible to write legislation that would 
cover all of these ``sins,'' we have no doubt but that bureaucrats, 
attempting to protect their own ``turf,'' could find other ways of 
denying or slowing down a private sector company's attempt to conduct 
innovative space activities that might compete with a government 
program that is seeking billions of dollars of the Federal budget. The 
statement at the Hearing that ``national security interests will always 
trump commercial interests'' gives us pause as to whether any regime 
with a ``veto power'' will actually promote commercial innovative uses 
of space.
9. A ``Mission Registration'' Approach Will Spur Investment in the 
        Space Economy While Still Allowing the U.S. to Prohibit 
        Activities That 
        Violate the OST or Articulated U.S. National Security Interests
    Instead of ``Mission Authorization,'' we propose a minimal 
``Mission Registration'' approach. The essential difference is where 
the presumption lies.
    We suggest allowing any U.S. entity planning to conduct a mission 
to register with a government entity, and provide full disclosure of 
the mission scenario. They would also have to demonstrate that the 
mission would not violate any of the OST prohibitions outlined above 
and defined more specifically in the enabling legislation. They would 
also demonstrate that the mission complies with orbital debris and 
space traffic management requirements through either reference to an 
FAA/AST, FCC, NOAA, or NASA authorization/approval, or through a 
separate demonstration if none of those regime apply (which is highly 
unlikely).
    An interagency review would be conducted under a strict shot-clock 
of 120 days; after that time, the mission would be deemed authorized, 
unless the lead agency issued an appealable order, consistent with the 
Administrative Procedure Act's ``arbitrary and capricious'' standard, 
clearly identifying the grounds on which the registration was denied. 
In other words, self-certification of compliance with the statute would 
provide a presumption of compliance--a kind of safe harbor--but that 
presumption could, of course, be rebutted by the agency or any private 
party (domestic or, ideally, foreign as well) seeking to oppose the 
proposed mission as inconsistent with the Treaty.
    A registrant would be under an obligation to keep the registering 
agency upraised of any changes to the mission, and the lead agency 
could in the future, if it later deemed that the mission might violate 
the OST prohibitions or other U.S. policy concerns, seek a court 
injunction to revoke the registration, with the burden of proof or 
revocation resting with the government agency.\6\
---------------------------------------------------------------------------
    \6\ We believe that any revocation would need to be done at the 
court level to assure an independent review of the revocation process. 
Allowing an agency to revoke the authorization subject to court appeal 
by the applicant would unfairly place the burden of proceeding and 
burden of proof with the private entity, and not on the government 
agency, where it belongs.
---------------------------------------------------------------------------
    In order to meet U.S. obligations under OST Article IX not to 
authorize missions that might cause harmful interference to the 
activities of other ``State Parties'' or that might cause harmful 
contamination of space or celestial bodies (which, again, could be 
involve harm to future users, who may not yet be present to defend 
their interests in the kind of adversarial process that could work for 
harmful interference claims), we propose that the lead agency issue a 
Public Notice indicating that the application for registration has been 
filed and general information about mission type (e.g., on-orbit 
satellite servicing, asteroid mining, etc.).\7\ Another country (but 
not a foreign national) at that point could seek consultation with the 
United States if it believed that a mission might violate Article IX. 
The statute should be written such that other countries could not abuse 
the consultation process by objecting to each registration as a way of 
either slowing down U.S. interests, or gaining valuable proprietary 
information concerning the nature of the mission, or the technology 
involved.
---------------------------------------------------------------------------
    \7\ A fuller registration of the payload would be made prior to 
launch consistent with the obligations of the Registration Convention.
---------------------------------------------------------------------------
    The practical problem with the U.S. taking the ``high road'' of 
notifying the world community in advance of planned missions, however, 
is that it might prompt other nations to create ``paper missions'' \8\ 
to stake out coveted locations in the solar system. A country, for 
example, could authorize a mission to land near Shackleton crater on 
the Moon and then claim a large non-interference zone around the 
landing site that would effectively preclude other operations nearby. 
Such a claim would likely violate Article II's prohibition on 
territorial appropriation, both because it is not based on actual, 
ongoing use, but future, hypothetical use. Nonetheless, to avoid tying 
up American companies in dilatory international consultations under 
Article VI, any ``prior notice'' regime should come with strict 
milestones to demonstrate to the international community that such 
authorizations are legitimate. In that way, the United States can 
demand similar regimes from foreign governments in order to acknowledge 
any Article IX non-interference rights of their citizens. Again, this 
kind of coordination should be central to the concept of reciprocal, 
interlocking legislation proposed above in the model of the Deep Seabed 
Hard Mineral Resources Act.
---------------------------------------------------------------------------
    \8\ The International Telecommunication Union (ITU) and state 
regulatory bodies such as the FCC have long dealt with attempts to 
warehouse valuable orbital locations (especially within the 
geostationary orbit), through the filing of ``paper satellite'' 
applications--applications to provide service by entities clearly 
technically or financially unable to launch a satellite within the 
timeframes specified in those applications. This has led, on the U.S. 
side, to the implementation of very strict construction and launch 
milestones.
---------------------------------------------------------------------------
    A private party would be left with the ability to seek an 
injunction against another party it believed might cause harmful 
interference to its activities using traditional common law tort 
theories. As much as any particular private U.S. company might like to 
have the weight of the U.S. Government behind it to enforce its rights 
to a particular mission, such a heavy-handed approach (empowering the 
government to pick winners and losers) would be costly for the 
government to engage in, and simply not necessary given the well-
established field of tort law. At most, Congress could consider 
requiring arbitration or other alternative dispute resolution platform 
in the statute for all cases arising under a Mission Registration 
regime. Ideally, the same common law developed between U.S. parties 
should be applicable in disputes between U.S. and foreign parties. For 
the concept of interlocking, reciprocal domestic legislation to work, 
the U.S. common law must be firmly grounded in Article IX's prohibition 
against harmful interference, while also taking care not to violate 
Article II's prohibition on territorial appropriation.
    This is, of course, only the beginning of the issues that will 
ultimately need to addressed to ensure that American law provides a 
sound foundation for American activities in space of all kind: 
governmental, business and scientific/not-for-profit. Congress will 
also have to address difficult questions, especially around harmful 
contamination and spectrum usage. But not all these issues need to be 
addressed now, at this hearing, or in legislation that Congress might 
pass this year.
    We look forward to assisting explore these additional questions in 
the future, and look forward to being of assistance to your committee 
in any way we can.
            Respectfully,

James E. Dunstan, Senior Adjunct Fellow, TechFreedom \9\
---------------------------------------------------------------------------
    \9\ Jim Dunstan is a Senior Adjunct Fellow of TechFreedom and the 
founder of Mobius Legal Group, PLLC where he has spent more than 33 
years representing companies in the outer space, telecommunications, 
and high technology sector. He can be reached at jdunstan
@mobiuslegal.com.
---------------------------------------------------------------------------
Berin Szoka, President, TechFreedom \10\
---------------------------------------------------------------------------
    \10\ Berin Szoka is President of TechFreedom, a nonprofit, 
nonpartisan technology policy think tank. He can be reached at 
[email protected]

    Senator Cruz. Thank you, Mr. Dunstan.
    Ms. Montgomery.

STATEMENT OF LAURA MONTGOMERY, ATTORNEY AND PROPRIETOR, GROUND 
                    BASED SPACE MATTERS, LLC

    Ms. Montgomery. Thank you. Chairman Cruz, Ranking Member 
Markey, and members of the Subcommittee, thank you for inviting 
me to address the role the Outer Space Treaty may play in the 
regulatory responsibilities of the United States.
    This country has the opportunity to interpret the Treaty in 
two ways: as conducive to private activity, or so that it 
creates barriers. A close reading of the text shows that the 
Treaty actually allows a lighter regulatory hand than many 
claim, both in terms of the authorization and supervision 
provisions of Article VI and the harmful contamination 
provisions of Article IX. If the United States pursues an 
interpretation that closely aligns with the text, there may be 
no need to seek changes.
    I respectfully recommend that the United States understand 
that it need not regulate new commercial space activities, such 
as lunar habitats, mining, or 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 United States citizens in outer space. A 
misunderstanding of the treaty looms as possible regulatory 
drag, because many, including agencies in the Executive Branch, 
claim Article VI prohibits operations in outer space unless the 
government authorizes and supervises those activities.
    The U.S. Government should not interpret this as forbidding 
unauthorized private space activity for three reasons. First, 
the Treaty does not forbid private operators from operating in 
outer space. Second, it does not say that either all or any 
particular activity must be authorized, leaving decisions 
regarding what activities require regulation to the member 
states. 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 with neither Federal 
authorization nor Federal supervision. Just because those 
activities take place in outer space does not have to mean that 
they should suddenly require oversight.
    And, finally, Article VI is not, under U.S. law, self-
executing, which means that it does not create an obligation or 
a prohibition on the private sector unless and until Congress 
says it does. So concerns over regulatory risks are artificial 
and may be set aside. Because Article VI is not self-executing, 
it is not enforceable Federal law until Congress acts.
    Just as the Supreme Court said in Medellin v. 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 legislation with all its attendant policy choices. 
Accordingly, regulatory agencies should not attempt to enforce 
this treaty provision by either denying licenses or payload 
authorizations or by attempting to regulate that which they 
have no jurisdiction over. Nor should Congress pass a law so 
broadly worded as to encompass all activities that could take 
place in outer space. The Supreme Court, in criminal and First 
Amendment cases, says 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 
if Congress takes that path.
    Article IX of the Treaty offers another source of concern, 
but it doesn't have to. Article IX provides that states' 
parties to the treaty shall avoid harmful contamination of 
outer space and adverse changes in the environment of Earth. 
This provision does not, in other words, apply to private 
actors. The United States is thus not legally obligated to 
impose this requirement on the private sector.
    Even if Congress were to decide that private activity had 
progressed to the point where harmful contamination had become 
a concern, Congress would have policy decisions to make, 
including whether current government guidelines should stand in 
the way of human settlement in outer space and on the Moon and 
other planets. Because the harmful contamination provision is 
neither applicable nor self-executing, regulatory agencies 
should not attempt to enforce it until and unless Congress 
directs them to do so.
    In order to put to bed the regulatory uncertainty arising 
out of any misunderstandings of the treaty, Congress could take 
a number of approaches. The most certain and long-lasting, 
however, and the one that would reduce the 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 on the basis of inapplicable 
or non-self-executing provisions of the Outer Space Treaty, 
including Articles VI and IX.
    Thank you for the opportunity to testify today.
    [The prepared statement of Ms. Montgomery follows:]

   Prepared Statement of Laura Montgomery, Ground Based Space Matters
    Chairman Cruz, Ranking Member Markey, Chairman Thune, Ranking 
Member Nelson, and Members of the Subcommittee, thank you for inviting 
me to participate in this important discussion and to address the role 
the Outer Space Treaty should play in the regulatory responsibilities 
of the United States. This country has the opportunity to interpret the 
Outer Space Treaty in two ways: as conducive to private activity or so 
that it creates barriers. A close reading of the text shows that the 
treaty actually allows a lighter regulatory hand than many claim, both 
in terms of the authorization and supervision requirements of Article 
VI and in terms of the harmful contamination provisions of Article IX.
    As someone who hopes to see people beyond Low Earth Orbit again in 
my lifetime, and who hopes to see commercial space operations other 
than launches, reentries, and communications satellites, I respectfully 
recommend that the United States not regulate new, commercial space 
activities such as lunar habitats, mining, satellite servicing, or 
lunar beer brewing for the wrong reason: the belief that Article VI 
makes the United States regulate either any particular activity or all 
activities of U.S. citizens in outer space. Regulations already cost 
American industry, the economy, and the ultimate consumer upwards of 
four trillion dollars, according to recent research from the Mercatus 
Center,\1\ so we should think carefully before creating more drag on 
the space sector.
---------------------------------------------------------------------------
    \1\ Bentley Coffey, Patrick McLaughlin, and Pietro Peretto, ``The 
Cumulative Cost of Regulations'' (Mercatus Working Paper, Mercatus 
Center at George Mason University, Arlington, VA, 2016).
---------------------------------------------------------------------------
    A misunderstanding of the Outer Space Treaty looms as possible 
regulatory drag because many, including agencies in the Executive 
Branch, claim Article VI of the treaty prohibits operations in outer 
space unless the government authorizes and supervises--which I'll refer 
to as ``oversees'' or ``regulates''--those activities. Although Article 
VI states that ``[t]he 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,'' the U.S. Government should not interpret this as 
forbidding unauthorized, private space activity for three reasons. The 
treaty does not forbid private operators from operating in outer space. 
It does not say that either all or any particular activity must be 
authorized, leaving decisions regarding what activities require 
regulation to the member states. And, finally, Article VI is not, under 
U.S. law, self-executing, which means that it does not create an 
obligation or a prohibition on the private sector unless Congress says 
it does.
    I will also address Article IX of the Outer Space Treaty and its 
admonition that States Parties to the treaty avoid harmful 
contamination of outer space and adverse changes in the environment of 
Earth. This provision does not, on its face, apply to private actors. 
It is thus not an obligation on the United States to impose this 
requirement on the private sector. Even if Congress were to decide that 
private activity has progressed to the point where contamination has 
become a concern, Congress would have a number of policy decisions to 
make, including whether current views on harmful contamination, which 
might keep space a scientific preserve, should stand in the way of 
human activity in outer space. Because the harmful contamination 
provision is neither applicable nor self-executing, the regulatory 
agencies should not attempt to enforce it until and unless Congress 
directs them to do so legislatively.
    In order to put to bed the regulatory uncertainty arising out of 
any misunderstandings, Congress could take a number of different 
approaches. The most certain and long-lasting approach, however, and 
the one that would reduce the 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 on the basis of inapplicable or non-self-
executing provisions of the Outer Space Treaty, including Articles VI 
and IX.
I. The Treaty Does Not Forbid Private Space Activity, but Leaves it to 
        Each Country to Decide What Activities to Regulate and How to 
        Regulate Them
    Article VI of the Outer Space Treaty states:

        States Parties to the Treaty shall bear international 
        responsibility for national activities in outer space, 
        including the moon and other celestial bodies, whether such 
        activities are carried on by governmental agencies or by non-
        governmental entities, and for assuring that national 
        activities are carried out in conformity with the provisions 
        set forth in the present Treaty. 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.

    The United States itself is in compliance with Article VI because 
the treaty leaves the decisions about how to comply with its rather 
ambiguous terms to each country. By its own terms, Article VI legally 
does not and cannot prohibit space operations by the commercial sector. 
Instead Article VI leaves it to each country to decide which particular 
activities require regulation, how that regulation will be carried out, 
and with how much supervision. Accordingly, if Congress hasn't said 
that a certain activity, such as lunar harp playing, requires 
authorization and continuing supervision then lunar harp playing does 
not.
    Article VI contains three relevant ambiguous terms that the 
drafters have left to the different countries to define as they see 
fit. The terms are ``authorization,'' ``continuing supervision,'' and 
``activities.''
A. Authorization
    Article VI says that a country must authorize its nationals' 
activities. Each country has its own processes and terminology for how 
it authorizes something. The United States alone authorizes regulated 
activities by certificate, certification, approval, license, 
registration, waiver, or exemption. In the United States, Congress 
determines the nature of the authorization.
B. Continuing supervision
    The signatories to the treaty are supposed to require continuing 
supervision of their nationals. ``Continuing supervision'' is a matter 
of frequency. Some agencies conduct annual inspections. Others oversee 
regulated activities on a daily basis. Some only show up after an 
accident. The frequency may not be the same, but the supervision may 
still be called continuous. The nature of the supervision may differ 
from country to country but all, regardless of frequency, could comply 
with Article VI's call for continuing supervision.
C. Activities
    Finally, and most importantly, the treaty leaves it to each country 
to decide what activities require supervision and authorization. The 
treaty does not say all activities require oversight. It does not say 
which particular activity requires oversight. Rather, it leaves to each 
country's policy makers the decision as to where to draw the line. And 
draw lines they must, so as not to waste resources, unduly burden the 
industry, or cause confusion. For the United States, the entity that 
makes those determinations is the U.S. Congress, and the regulatory 
agencies should wait for Congress to act.
    Article VI is structured so that a country need not expend 
resources regulating frivolous, mundane, or non-hazardous activities. 
Each country may itself decide what activities require authorization 
and supervision. Thus, if our decision makers haven't decided that a 
particular activity needs authorization, that activity does not. 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 authorization or continuing Federal supervision. Just 
because those activities take place in outer space does not mean they 
should suddenly require oversight.
    As a matter of past practice, Congress has always identified what 
activity it wanted regulated, and it has done so with the proper level 
of specificity that due process considerations of notice and 
transparency require. Congress required the Federal Communications 
Commission to license satellite transmissions. It required the 
Department of Transportation (DOT) to license the launch of launch 
vehicles. Later, it required DOT and the Federal Aviation 
Administration (FAA) to license the reentry of reentry vehicles as 
well. Congress also mandated that the seemingly benign activity of 
taking pictures of Earth--``remote sensing''--requires regulation, too. 
The point is, each time Congress determined that something required 
oversight, whether for reasons of safety, national security, or 
interference, it identified the activity in question, and it did so 
with sufficient clarity that persons of ordinary intelligence could 
tell what was forbidden and what was required.
    As a matter of policy, Congress may determine that there are good 
reasons to expend government resources and taxpayer dollars on a 
particular activity. Hypothetically, Congress could say that robotic 
mining of rocks in space really far away does not require regulation 
because no one lives on that rock, it has no visitors, and no one will 
get hurt by it. Or, it could say that bringing all those platinum group 
minerals back to Earth at once will wreak havoc on the economy and then 
set up an agency to oversee pricing. Even if Congress ignored asteroid 
mining, it might forbid the reentry of anything large enough to make a 
crater the size of the Yucatan. There are a number of considerations 
that may lead to legislation and regulatory oversight. But they are not 
in Article VI.
    Just as there are serious activities that someone may say require 
oversight, there are a host of other activities that don't. One hears 
no lamentations over the lack of authorization of space tourists. Yet 
space tourists exist now. Lunar habitats and space mining do not.
    In short, Article VI leaves at least three decisions to each 
country that signed the Outer Space Treaty: What form should an 
authorization to take? How frequent must the continuing supervision be? 
And, what activities require any authorization at all? If Congress 
doesn't think playing the harp in space requires authorization, then it 
doesn't, the U.S. is still in compliance with Article VI, and the 
Executive Branch should not attempt to stop the ``unauthorized'' 
harpist.
II. Article VI is not Self-Executing
    If a treaty promises, implicitly or explicitly, that the 
signatories shall enact legislation to implement the treaty, it 
necessarily requires additional action by another branch of the 
government than the Executive. In the United States, that other branch 
is the U.S. Congress, and Article VI's call for supervision and 
authorization requires the kind of policy decisions that are made by 
our Congress.
    As the Supreme Court noted in Medellin v Texas in 2008, ``not all 
international law obligations automatically constitute binding Federal 
law enforceable in United States courts.'' As far back as the early 
19th century, in a case called Neilson v. Foster in which the Court 
considered a treaty with language similar to that used in Article VI, 
the Supreme Court said that Congress had to first enact legislation 
before it could enforce the treaty because the text of the treaty 
required additional legislative action. With its space legislation, 
Congress has acted consistently with the Supreme Court's holdings. When 
Congress decides that an activity requires regulation, it will pass a 
law, and has done so for launch, reentry, remote sensing from space, 
and satellite communications.
    Because Article VI is not self-executing and thus not enforceable 
Federal law, until Congress acts, regulatory agencies should not treat 
Article VI as a barrier that applies to commercial actors or claim that 
it prohibits all or any particular private activity. Indeed, given the 
close textual analysis that the Supreme Court typically applies to 
treaties, Article VI's potential obligation on the government does not, 
even on its own terms, constitute a prohibition on the private sector.
III. Paths Forward
    Purely as a legal matter, Article VI should not create a barrier to 
private activity. However, should there be concerns that this view is 
not shared by agencies of the Executive Branch, Congress has 
legislative options at its disposal.
A. Legislation Could Clarify that the Executive Branch May Not Prohibit 
        a U.S. 
        National from Conducting an Activity in Space Unless Congress 
        Requires that Activity's Authorization and Continuing 
        Supervision
    Legislation could clarify that regulatory agencies may not prohibit 
a U.S. national from conducting an activity in space unless Congress 
required Federal oversight. This would not be legally necessary, 
strictly speaking, because this proposal merely reflects current law. 
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, a launch or reentry license, or authorization for 
satellite transmissions or remote sensing.
    There are clear advantages to this path. It would, of course, 
create certainty, which is helpful to industry's quest for innovation 
and investment. It would be long-lasting. Most importantly, this path 
would ensure that before Congress required Federal oversight of another 
activity in space, it would first determine whether a real need existed 
for that oversight.
B. Let us Not Regulate Everyone for Everything Everywhere in Space
    Congress should not require the authorization and supervision of 
``all'' private activities in outer space by private U.S. nationals. 
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. Should Congress decide 
to require regulation, it should avoid the proposals that would require 
Federal oversight of ``all space activities.'' Language like that could 
entrap people engaged in perfectly benign activities. They might 
reasonably believe that something they do all the time on Earth was not 
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.
    Many activities in space shouldn't require regulation, just as many 
activities we engage in on the ground don't. Just as there are 
hazardous activities that may require oversight, there are a host of 
other activities that don't. People will engage in activities that 
might endanger themselves, their customers, or their neighbors, but 
they will also perform more ordinary acts. A musician may decide to 
play the harp on the Moon. The Internet tells us that a student group 
plans a little lunar brewing of beer in the interests of science. 
Rather than enacting overly broad legislation that transfers all of its 
legislative powers to a regulatory agency, Congress could take the more 
measured and transparent approach of deciding which activities require 
oversight while acknowledging that not all of them do.
    Indeed, without the clarity of identifying the activities that 
require oversight, such a transfer of legislative power would only 
prolong any regulatory uncertainty as industry faced the possibility of 
having to obtain permission for every little activity proposed. The 
impact of regulation on the private sector is real.
    Typically, if an agency receives a very broad grant of authority 
the agency will eventually construe that authority to its maximum 
limits. Were Congress to require authorization and supervision of all 
activities by U.S. entities in outer space, the incentives on and 
responsibilities of regulators--such as making sure they don't miss 
anything, making sure they don't allow something dangerous to happen, 
and making sure they know what's going on--mean that the agencies will 
attempt to oversee more than just those activities that are hazardous 
to others or pose national security concerns. After all, an agency 
can't figure out if these threats exist unless it finds out all--from 
the trivial to the hazardous--that an operator plans. Inquiries will be 
made.
    The regulatory process balances a host of competing interests, 
including transparency, fairness, legal sufficiency, and safety. 
Unfortunately, these necessary considerations sacrifice efficiency and 
flexibility. As a society, we consider that sacrifice worth it when an 
activity jeopardizes other people. When an activity doesn't, we must 
ask if the constraints serve a useful purpose. If Congress were to 
decide, as it has in the past with respect to launch, reentry, remote 
sensing, and satellite communications, that another space activity 
required regulation, it should identify that activity specifically. 
Space bakeries, on account of the threats posed by their ovens, might 
require governmental oversight if there were other people nearby. 
Robotic mining of asteroids millions of miles from human habitation 
might not. Congress should not, however, interpret Article VI to 
require the regulation of everything.
C. The FAA's Payload Review: Opportunity or Threat?
    Does the FAA's statutory payload review authority allow the FAA to 
provide a positive payload determination to an entity not otherwise 
supervised by the Federal Government? Yes, it does. This answer may 
not, however, be consistent with the view of everyone in the Executive 
Branch because of Article VI's call for authorization and supervision.
    When conducting a payload review, the FAA must do so consistent 
with public health and safety, safety of property, national security, 
and foreign policy interests. Thus we see that the FAA's foreign policy 
authority allows the FAA to make its own determinations on foreign 
policy. Its governing statute, the Commercial Space Launch Act, 
requires the FAA to consult with the State Department on a matter 
affecting foreign policy. The FAA has implemented this requirement \2\ 
in its regulations to state that it consults with the Department of 
State on foreign policy issues for its payload reviews.
---------------------------------------------------------------------------
    \2\ The FAA could change its regulations so that it only consulted 
on isolated questions rather than for each payload given how 51 U.S.C. 
Sec. 50918 phrases the requirement.
---------------------------------------------------------------------------
    Under the better and more legally sound interpretation of its 
authority, the FAA could use its foreign policy powers to encourage, 
facilitate and promote the space industry. For example, were a 
prospective lunar harpist to seek a payload determination from the FAA, 
the FAA would engage in its normal practice of inter-agency 
consultation. The U.S. Department of State might raise concerns with 
respect to the fact that Congress has not passed legislation to 
regulate harp playing despite Article VI's proviso that all States 
Parties to the treaty authorize and continuously supervise the acts of 
their nationals in outer space. With its own foreign policy authority, 
independent of that of the State Department, the FAA could determine 
that because Article VI is not self-executing, until Congress acts, the 
U.S. has not determined that playing the harp constitutes the type of 
activity requiring oversight under the treaty. Having satisfied its 
consultation obligations, the FAA could then issue a favorable payload 
determination.
    Conversely, relying on its foreign policy authority, the FAA could 
worry that other countries might raise issues about Article VI 
oversight of a lunar harpist and contemplate denying the harpist's 
requested payload determination. Such a determination would, as noted, 
run afoul of the fact that Congress has not determined that lunar harp 
playing is the kind of activity that requires Federal oversight. The 
FAA must make any policy determinations in accordance with U.S. law, 
and a non-self-executing treaty is not, as noted by the Supreme Court's 
Medellin opinion, binding Federal law. To treat it as such would raise 
the question of whether the FAA was usurping Congress's legislative 
role.
    Lunar harp playing is a vaguely ludicrous example of an activity 
that could take place extraterrestrially, but it makes the point that 
the Outer Space Treaty left the determinations of what requires 
authorization and continuing supervision to each signatory nation. If 
Congress hasn't decided that lunar harpists or miners require oversight 
for their respective activities, they don't and the regulatory agencies 
should not attempt to stop these activities. The treaty does not say 
which activities must be regulated, and in the United States that 
determination lies with Congress. For the FAA to say that it had the 
ability to make such determinations about a non-self-executing treaty 
would be to say that it, rather than the legislative branch, could make 
the legislative determination.
    Accordingly, because of the FAA's foreign policy authority muddying 
the waters over the FAA's responsibilities, the FAA's payload review 
creates regulatory uncertainty for industry, and likely merits closer 
Congressional scrutiny and possible revision.
D. Most Provisions of the Outer Space Treaty only Apply to Governmental 
        Activity in Space
    The bulk of the Outer Space Treaty's requirements apply to ``States 
Parties,'' and the United States should not interpret those provisions 
as applying to private actors. For example, Article IV says that 
``States Parties to the Treaty undertake not to place in orbit around 
the Earth any objects carrying nuclear weapons or any other kinds of 
weapons of mass destruction, . . .'' If Congress wanted to make sure 
that this prohibition applied to private parties, Congress might 
consider implementing legislation.
    Another provision that calls out for Congressional clarification--
as well as a multitude of policy determinations--is whether the harmful 
contaminations provisions (often referred to as the ``planetary 
protection'' provisions) of Article IX apply to commercial operations. 
Article IX states, in relevant part, that:

        States Parties to the Treaty shall pursue studies of outer 
        space, including the Moon and other celestial bodies, and 
        conduct exploration of them so as to avoid their harmful 
        contamination and also adverse changes in the environment of 
        the Earth resulting from the introduction of extraterrestrial 
        matter and, where necessary, shall adopt appropriate measures 
        for this purpose.

    Some, including regulatory agencies, claim that Article VI's 
provision that States Parties to the treaty assure ``that national 
activities are carried out in conformity with the provisions set forth 
in the present Treaty'' means that commercial actors must abide today, 
even absent legislation, by each provision in the treaty, even the 
provisions that only apply to governments.
    The first reason to question the applicability of the ``planetary 
protection'' provision is that the treaty itself limits this 
requirement, like many others, to ``States Parties.'' States Parties 
are governments. When the drafters of the treaty intended a particular 
provision to apply to non-governmental entities they said so. For 
example, Article IX contains another provision that does apply to non-
governmental entities, namely, the requirement for a State Party to 
consult if it ``or its nationals'' might interfere with others in outer 
space.
    Secondly, even if it applied, Article IX's planetary protection 
provision is not self-executing. It requires the legislative branch to 
make numerous policy judgments, such as whether the goals of space 
science or space settlement should preempt one another or may be 
pursued together. According to NASA's website,\3\ ``planetary 
protection'' is the term ``given to the practice of protecting solar 
system bodies (i.e., planets, moons, comets, and asteroids) from 
contamination by Earth life, and protecting Earth from possible life 
forms that may be returned from other solar system bodies.'' NASA is 
being a good steward with this approach, but the approach is not 
conducive to human settlement. If Congress were to legislate regarding 
Article IX's goal of avoiding harmful contamination, Congress should 
make it clear that human beings are not a contaminant. If Congress 
settled that question, anything with equivalent or less biological 
baggage than a human being should not be required to undergo the 
expensive sterilization protocols now employed for government missions.
---------------------------------------------------------------------------
    \3\ Office of Planetary Protection, https://
planetaryprotection.nasa.gov/overview (last checked May 18, 2017).
---------------------------------------------------------------------------
    We must keep in mind, however, that the United States did not agree 
to apply the harmful contamination provision to commercial operators. 
Accordingly, until Congress acts, we may hope that the new 
administration will not attempt to treat the harmful contamination 
provision as binding Federal law for commercial operators. Just as in 
Medellin where a President could not unilaterally impose a treaty 
obligation on the states, regulatory agencies should not attempt to 
impose treaty obligations on the private sector without Congressional 
action. The United States could also take this opportunity to clarify 
its own interpretation of this provision as applying only to 
governmental operations in space, not to the operations of private 
actors.
Conclusion
    In closing, I wish to say that Congress, in deciding whether to 
regulate a particular activity in space, should follow its usual 
decision-making process for deciding whether an activity requires 
regulation. Can the activity hurt other people? Could it have health 
effects? Are there national security concerns? Are there other, less 
burdensome solutions than Federal regulation? Is it too soon to 
regulate? Congress has placed a moratorium on the regulation of human 
space flight for safety purposes. Does the same logic apply to lunar 
harpists? To lunar miners?
    What the United States does not need to do is to regulate purely 
for the sake of regulation, which is what the misunderstandings over 
the role of Article VI in U.S. law may lead to. Nor, unless Congress 
sees domestic policy reasons for doing so, does the United States have 
an international obligation to impose the harmful contamination 
provisions on the private sector.
    Thank you for the opportunity to testify before you today. I look 
forward to working with you on these issues in the future.

    Senator Cruz. Thank you, Ms. Montgomery.
    Mr. Schaefer.

               STATEMENT OF MATTHEW P. SCHAEFER,

        VERONICA A. HAGGART & CHARLES R. WORK PROFESSOR

        OF INTERNATIONAL TRADE LAW; CO-DIRECTOR--SPACE,

           CYBER AND TELECOMMUNICATIONS LAW PROGRAM,

      UNIVERSITY OF NEBRASKA COLLEGE OF LAW; AND CO-CHAIR,

          AMERICAN BRANCH OF INTERNATIONAL LAW ASSOC.

                      SPACE LAW COMMITTEE

    Mr. Schaefer. Chairman Cruz, Ranking Member Markey, members 
of the Subcommittee, it's an honor and pleasure to be here 
today for this very timely hearing.
    It is timely because of the Outer Space Treaty's (OST) 50th 
anniversary, all the innovative and important new space 
activities of U.S. businesses--many of whose representatives 
are actually in the audience today--and given the fact the U.S. 
has a current authorization gap for new space activities, 
things like asteroid mining, lunar landers, on-orbit satellite 
servicing, lunar research facilities and laboratories. This 
authorization gap creates a problem in two ways. First, it 
creates uncertainty for industry. That doesn't help investment. 
That doesn't help business cases. Second, as activities go 
forward, it may create compliance problems with U.S. 
international obligations, which also can create problems, as 
I'll elaborate on a bit further.
    The U.S. has agreed to a set of treaty interpretation rules 
internationally that are expressed in the Vienna Convention on 
the Law of Treaties. The primary rule in that document is that 
we interpret treaties according to the ordinary meaning of the 
terms of the treaty in their context and in light of object and 
purpose. It's very clear that Article VI of the OST calls on 
the U.S. and other parties to the OST to authorize and 
supervise commercial space activities in order to assure their 
compliance with the OST. It further makes parties 
internationally responsible for non-governmental activities in 
outer space. This Article VI obligation seems to strike fear 
into some people, and it shouldn't.
    OST obligations are very minimally burdensome and quite 
flexible in how they can be interpreted. It's a basic set of 
principles, a few minimally burdensome rules, which, by the 
way, help advantage U.S. companies as well. If we don't respect 
our obligations under Article VI of the OST to create an 
authorization and supervision regime, we're going to face 
consequences. Our industry will face consequences. Foreign 
retaliation is possible and a lot of space businesses are 
global in nature. They depend on global partners, customers, 
and investors to make out their business case. When the U.S. 
Government doesn't respect its international treaty 
obligations, foreign governments can retaliate; take away 
markets, take away customers; take away foreign partners--and 
foreign investors can shy away.
    Second, when a U.S. company is a first mover up in outer 
space, other countries will not respect these basic, minimal 
norms when it comes to how they will interact with that first 
moving U.S. company. Both of those impacts of treaty non-
compliance would create uncertainty for U.S. space companies.
    On the self-executing nature of the OST, we could debate 
that endlessly. The U.S. Senate has done an excellent job since 
the U.S. Supreme Court's 2008 Medellin case, making very clear 
which articles of treaties are self-executing and non-self-
executing. For older treaties, we're trying to glean U.S. 
political branch intent on the issue of self-execution from 
treaty text and less explicit domestic materials.
    But the important point is even if the OST Article VI is 
non-self-executing, the international obligation remains. If we 
do not comply with it, we will face the consequences I just 
laid out. Further, the Congress has directed, when it comes to 
launch licenses and payload reviews, the Department of 
Transportation to take into account our international 
obligations.
    What is creating the authorization gap is not a failure of 
Congress to direct the Administration to comply with our 
international obligations. Rather, what creates the regulatory 
gap is the legislative history to the 1998 amendments to the 
Commercial Space Launch Act that indicate that Congress was not 
intending to grant on-orbit authority to the Executive Branch.
    The U.S. Congress did an excellent job in the Space 
Resource Exploration and Utilization Act of 2015 by 
highlighting our international obligations when they laid out 
that there can be property rights in extracted resources, a 
long-standing U.S. interpretation of the OST. That continuity 
internationally creates certainty internationally and also 
helped the U.S. lessen vocal international opposition to the 
law. That's the page out of the playbook that should be adopted 
when we establish an on-orbit authorization regime.
    In short, there's no need to terminate the OST. There's no 
need to amend it. There's no reason to stray from our agreed-
upon treaty interpretation rules. There's no reason to ignore 
the plain meaning of Article VI, and there's certainly not a 
need to pay attention to certain OST obligations and reject 
others. We can have an OST-compliant regime that meets the 
spirit of permissionless innovation, something that led to the 
growth and success of the Internet economy, and I'd be happy to 
share further ideas on that in the question and answer session.
    Thank you very much.
    [The prepared statement of Mr. Schaefer follows:]

   Prepared Statement of Matthew P. Schaefer, Veronica A. Haggart & 
  Charles R. Work Professor of International Trade Law; Co-Director--
    Space, Cyber and Telecommunications Law Program, University of 
Nebraska College of Law; and Co-Chair, American Branch of International 
                     Law Assoc. Space Law Committee
    Mr. Chairman and Members of the Subcommittee, it is an honor and a 
pleasure to be here today to share my views on today's hearing topic: 
``Reopening the American Frontier: Exploring How the Outer Space Treaty 
Will Impact American Commerce and Settlement in Space.''
    This hearing is especially timely. The Outer Space Treaty (OST), or 
more formally the Treaty on Principles Governing the Activities of 
States in the Exploration and Use of Outer Space, including the Moon 
and Other Celestial Bodies, is celebrating its 50th Anniversary this 
year. Commercial space business plans and activities are increasing 
rapidly, including plans for new on-orbit activities going beyond 
traditional remote sensing and communications satellites, such as 
asteroid mining, lunar or on-orbit research facilities and hotels, and 
on-orbit satellite servicing. And, at the same time, the U.S. 
Government currently suffers from an on-orbit authorization gap for new 
activities that go beyond remote sensing and communications--two 
activities with current licensing regimes administered by NOAA and the 
FCC, respectively. The authorization gap for new on-orbit activities 
creates uncertainty for U.S. commercial space businesses and investors, 
and as activities proceed, may also create compliance problems with 
U.S. international obligations under the OST. The Executive Branch was 
able to handle the Moon Express situation under existing authorities 
given the limited nature of its activities, but authorization of more 
elaborate activities is likely to require new authorities. In any 
event, it is in the U.S. national interest and the interest of the U.S. 
commercial space industry to have a certain and predictable process for 
authorization established that complies with U.S. international 
obligations.
    The U.S. commercial space industry can flourish under the existing 
OST. Indeed, the U.S. can establish a licensing or authorization regime 
for new on-orbit space activities that complies with the OST and still 
meets the spirit of permissionless innovation, a concept many credit 
with the growth and success of the Internet economy. I refer the 
committee to my article The Contours of Permissionless Innovation in 
the Outer Space Domain forthcoming in Vol. 39 of the University of 
Pennsylvania Journal of International Law (Fall 2017) for a detailed 
examination of these issues. The article is available publicly now on 
the Social Science Research Network (SSRN) at http://ssrn.com/
abstract=2942526. Today, I wish to highlight important findings from 
that article but also push further into some of the international and 
domestic dynamics involved in the today's hearing topic.
    Permissionless innovation is rarely, if ever, pure in the sense of 
the complete absence of government regulation altogether. Instead, the 
core of a permissionless innovation framework is a default presumption 
in favor of permission with limited constraints.\1\ The OST has very 
minimal constraints on private space activities--and those minimal 
constraints can actually help protect U.S. commercial industry from 
harmful actions of other nations and actors. In short, there is a basic 
compatibility between a flourishing and competitive commercial space 
industry here in the United States and U.S. compliance with our 
obligations in the OST.
---------------------------------------------------------------------------
    \1\ See ADAM THIERER, PERMISSIONLESS INNOVATION: THE CONTINUING 
CASE FOR COMPREHENSIVE TECHNOLOGICAL FREEDOM (2016).
---------------------------------------------------------------------------
    There is no need for the United States to withdraw from or even 
seek amendment to the OST. There is no need for the United States to 
abandon long-established and long-agreed upon treaty interpretation 
rules when interpreting the OST. There is no need to ignore the plain 
language of Art. VI of the OST--a provision that requires 
``authorization'' and ``supervision'' of the activities of a country's 
commercial space actors in order to ``assure'' their conformity with 
the provisions of the OST. There is no need to only pay attention to 
certain OST obligations and ignore others. Undertaking any of the above 
listed actions will actually undermine U.S. commercial space industry 
prospects.
    The U.S. commercial space industry--including segments involved in 
new on-orbit activities--relies on global markets for their business 
case. Partners, investors and customers from abroad are often necessary 
to the business case.
    If the United States does not take the minimal steps necessary to 
comply with OST Art. VI, U.S. companies engaged in these activities may 
face foreign retaliation in the form of denying access to customers or 
partners, and investors from abroad may shy away as well. The United 
States will also not be able to credibly insist that foreign 
governments when conducting their space activities not harmfully 
interfere with U.S. commercial activities. This diminished credibility 
would put at risk the large and often long-term investments U.S. 
commercial space companies undertake. If the Congress tasks the 
Executive Branch with protecting U.S. commercial space actors from 
foreign interference, it must also task the Executive Branch with 
considering harmful interference an applicant might cause not only to 
pre-existing U.S. Government operations or other pre-existing U.S. 
commercial operations, but also harmful interference that might be 
caused to pre-existing foreign activities.
    The United States can and should maintain the continuity of the OST 
and U.S. leadership in outer space matters. Congress can and should 
create a certain and predictable domestic authorization framework for 
new on-orbit commercial space activities that complies with the OST \2\ 
and comports with the spirit of permissionless innovation. The 
continuity maintained internationally and the (hopefully) soon created 
predictability and certainty within a U.S. domestic authorization 
process will yield large benefits to the U.S. commercial space 
industry. If such a path is followed, the risk of retaliation by 
foreign governments for failure to abide by the OST and the risk of any 
last minute stoppage by the Executive Branch of a new on-orbit activity 
for reasons of international obligation compliance or national security 
will be greatly reduced or eliminated altogether. Investors in these 
new space industries will have legal certainty that should help 
stimulate investment and growth in these industries.
---------------------------------------------------------------------------
    \2\ In accord with Statement of Dennis J. Burnett, Hearing of House 
Science Committee Space Subcommittee, March 8, 2017, pp. 8-9.
---------------------------------------------------------------------------
    What the Congress provided for in the Space Resource Exploration 
and Utilization Act of 2015 (within Public Law 114-90) is a perfect 
example of maintaining consistency internationally while creating 
greater certainty and predictability domestically in a fashion that 
respects U.S. international obligations and dampens negative foreign 
reactions. The act in Section 402 provides the following:

        A United States citizen engaged in commercial recovery of an 
        asteroid resource or a space resource under this chapter shall 
        be entitled to any asteroid resource or space resource 
        obtained, including to possess, own, transport, use, and sell 
        the asteroid resource or space resource obtained in accordance 
        with applicable law, including the international obligations of 
        the United States. \3\(emphasis added).
---------------------------------------------------------------------------
    \3\ Available at https://www.congress.gov/114/plaws/publ90/PLAW-
114publ90.pdf

    These provisions of U.S. law are fully consistent with at least 35 
years of long-standing U.S. policy and legal interpretations dating 
back to 1979-1980 in statements by Secretary of State Vance and State 
Department Legal Advisor Owen.\4\
---------------------------------------------------------------------------
    \4\ See Letter from Secretary of State Vance to Sen. Church, 
Chairman of Senate Foreign Relations Committee, Nov. 28, 1979, 
reprinted in Agreement Governing the Activities of States on the Moon 
and Other Celestial Bodies, Senate Committee on Commerce, Science and 
Transportation, August 1980, at p. 313 (stating that the Moon Treaty 
provides no moratorium on exploitation of space resources, that Art. II 
of the Outer Space Treaty's ban on appropriation only applies to 
resources in place, and that the Outer Space Treaty and Moon Agreement 
would allow for ownership of extracted space resources) ; See also 
Testimony of State Dept. Legal Advisor Owen in Hearings Before the 
Subcommittee on Science, Technology and Space of the Senate Committee 
on Commerce, Science, and Transportation on Agreement Governing the 
Activities of States on the Moon and Other Celestial Bodies (96th 
Cong., July 29 & 31, 1980)(both oral and written testimony) at p. 2-19 
(``American companies will have a continuing legal right to exploit the 
Moon's resources. . . .''; ``. . . once [resources] have been extracted 
from the Moon, ownership can be asserted at that point. . .''; 
``exploitation [can] go forward and that one can own what one can 
remove from the surface or subsurface of a celestial body . . . the 
negotiating history [of the Moon Agreement] makes it very clear that 
that was contemplated by the parties.''; ``The United States took the 
position from the outset that such exploitation should be permitted, 
that such ownership after extraction should be permitted. And that . . 
. is an authoritative interpretation. . . .''; ``. . . we have insisted 
that even after such a regime is established [an international one 
under the Moon Treaty], the right of unilateral exploitation will 
continue to be available to those States which choose not to 
participate in such a regime.'')
---------------------------------------------------------------------------
    The reference to international obligations in the U.S. statute 
envisions compliance with Art. VI of the OST and thus provides a 
further justification for Congress to move forward and fill the 
existing regulatory gap for new on-orbit activities. Just as 
importantly Congress included a statement in the law in Section 403 
that states:

        It is the sense of Congress that by the enactment of this Act, 
        the United States does not thereby assert sovereignty or 
        sovereign or exclusive rights or jurisdiction over, or the 
        ownership of, any celestial body.\5\
---------------------------------------------------------------------------
    \5\ Available at https://www.congress.gov/114/plaws/publ90/PLAW-
114publ90.pdf

    This statement acknowledges U.S. obligations under the OST Art. II 
and helps dampen any negative reaction to the codification of long-
standing U.S. interpretations of OST regarding property rights in 
extracted resources.
    The important lesson from the Space Resource Exploration and 
Utilization Act of 2015 is it matters not just what Congress says in a 
law but how it says it. Congress can provide for consistency 
internationally while simultaneously creating certainty and 
predictability domestically--all to the benefit of U.S. commercial 
space interests. Referencing international obligations and paying heed 
to the non-sovereignty obligation in Art. II makes many more countries 
willing to hop on board or at least not overtly object to the long-
standing (and correct) U.S. interpretation that Art. II does not 
prohibit property rights in extracted resources. Some countries, of 
course, will continue to oppose the U.S. interpretation for reasons of 
perceived national interest but that group is smaller and less vocal 
than would be the case had Congress not mentioned and respected U.S. 
international obligations in the statutory language of the Space 
Resource and Utilization Act of 2015.
    Imagine if instead the United States took the radical step of 
withdrawing from the Outer Space Treaty because some countries disagree 
with the U.S. interpretation regarding Art. II as it relates to 
ownership rights in extracted resources. Initially, the question would 
arise whether withdrawing from the OST would actually eliminate the 
non-sovereignty obligation in any event since many believe the 
obligation to now apply as a matter of customary international law as 
well as treaty law. Terminating the treaty obligation would not 
terminate the customary international law obligation. But setting that 
issue aside, U.S. termination of the OST would likely prompt other 
major space powers to withdraw from the OST, and thereby allow any 
other nation arriving first to the celestial body after the treaty 
terminations to declare sovereignty over vast swaths of the celestial 
body, setting up a show down with later arriving U.S. commercial 
interests. That is not the legal consistency, predictability and 
certainty that U.S. space interests deserve. Moving forward to the 
drafting and creation of a U.S. authorization regime for new on-orbit 
activities, there is similarly a large downside to changing or ignoring 
long-standing treaty interpretation methods or ignoring some OST 
provisions altogether.
    As described and summarized in the abstract to my Permissionless 
Innovation article forthcoming in the University of Pennsylvania 
Journal of International Law:

        A permissionless innovation regulatory model . . . is being 
        explored for adoption in the outer space domain, given the 
        amount of innovation by commercial entities in that sector. 
        However, translation of the model to outer space is complex 
        because permissionless innovation is contextual, and the outer 
        space domain differs from the cyber domain in important 
        respects: First, international obligations require the U.S. 
        Government to authorize and supervise commercial space 
        activities. Second, national security concerns are potentially 
        raised by even every day, non-illicit space activities. Third, 
        space business investors actually demand enhanced regulatory 
        certainty given the risk and often long-time horizons of their 
        investments.

        New on-orbit space activities . . . currently fall within a 
        regulatory gap--the Executive Branch lacks express 
        Congressional delegation to regulate such activities. This 
        situation may appear to be a victory for proponents of a nearly 
        pure or unadulterated version of permissionless innovation. 
        Indeed, to protect the status quo, permissionless innovation 
        advocates are ignoring long-established and agreed upon rules 
        of treaty interpretation to argue the U.S. Government is not 
        under an obligation to authorize and supervise U.S. commercial 
        space companies' activities.

        The irony is that the current gap actually undermines the 
        benefits of permissionless innovation. The Executive Branch 
        faces a Hobbesian choice of following Congressional intent and 
        standing aside as new on-orbit activities are engaged in or 
        complying with international obligations and addressing 
        potential national security concerns by continuing to leverage 
        existing authorities in an attempt to control new on-orbit 
        activities. U.S. commercial space businesses--the innovators--
        are left in a similarly difficult situation: facing a risk of 
        foreign government retaliation in event of U.S. Government non-
        compliance with international obligations or being forced to 
        engage in costly and time-consuming litigation if the U.S. 
        Government blocks their proposed activity by stretching 
        existing authorities. Fortunately, the U.S. Congress can enact 
        a solution that fills the gap--one that provides compliance 
        with international obligations, protects national security, and 
        affords regulatory certainty for U.S. space businesses while at 
        the same time ensuring that permissionless innovation thinking 
        and espris de corps controls the interagency approval process, 
        including a default presumption in favor of approval.\6\
---------------------------------------------------------------------------
    \6\ See Matthew P. Schaefer, The Contours of Permissionless 
Innovation in the Outer Space Domain, forthcoming in Vol. 39 Univ. of 
Pennsylvania Journal of International Law (Fall 2017), available 
currently at http://ssrn.com/abstract=2942526
---------------------------------------------------------------------------
A Closer Look at Article VI of the OST and Obligations in the OST that 
        Might Minimally Impact U.S. Commercial Actors and 
        Simultaneously Help Protect U.S Commercial Space Businesses
    OST Art. VI provides the following:

        States Parties to the Treaty shall bear international 
        responsibility for national activities in outer space, 
        including the moon and other celestial bodies, whether such 
        activities are carried on by governmental agencies or by non-
        governmental entities, and for assuring that national 
        activities are carried out in conformity with the provisions 
        set forth in the present Treaty. 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. . . .\7\ (emphasis added).
---------------------------------------------------------------------------
    \7\ Available at http://www.unoosa.org/oosa/en/ourwork/spacelaw/
treaties/outerspacetreaty
.html
---------------------------------------------------------------------------
    The first sentence providing that States Parties bear international 
responsibility for their non-governmental (commercial) entities' 
activities is quite unique in international law. Normally, a government 
is not responsible for purely private conduct in the absence of a 
strong link such as the government exercising direction or effective 
control over the private activity. This provision was part of the 
trade-off in the negotiation of the OST in which the original Soviet 
proposal was to ban private actors from space altogether. The OST 
clearly allows for and anticipates commercial space activity but makes 
State Parties internationally responsible for such activity. The last 
clause of the first sentence of OST Art. VI also provides that States 
Parties must assure that national activities (including those by its 
commercial actors) are carried out in conformity with the OST. The 
second sentence then requires the appropriate State Party to undertake 
``authorization and continuing supervision'' of its non-governmental 
(commercial) space activities.
    Well-established and long-agreed to treaty interpretation rules are 
codified in the Vienna Convention on the Law of Treaties (VCLT), 
Articles 31 and 32.\8\ Although the United States is not a party to the 
VCLT, it has long recognized that it considers itself bound to many of 
its provisions, including the treaty interpretation rules, as a matter 
of customary international law.\9\ VCLT Art. 31(1) provides the 
following primary rule of treaty interpretation:
---------------------------------------------------------------------------
    \8\ See Vienna Convention on Law of Treaties [hereinafter VCLT], 
Arts. 31-32, available at https://treaties.un.org/doc/publication/unts/
volume%201155/volume-1155-i-18232-english.pdf
    \9\ See, e.g., https://www.state.gov/s/l/treaty/faqs/70139.htm

        A treaty shall be interpreted in good faith in accordance with 
        the ordinary meaning to be given to the terms of the treaty in 
        their context and in the light of its object and purpose. \10\ 
        (emphasis added).
---------------------------------------------------------------------------
    \10\ See VCLT, supra note 8.

    Thus, when interpreting what authorization and continuing 
supervision requires within OST Art. VI, the VCLT mandates looking to 
the ordinary meaning of those terms in their context and in light of 
their object and purpose. As written in my Permissionless Innovation 
---------------------------------------------------------------------------
article:

        The ordinary meaning of authorize is ``give official permission 
        or approval to,'' or ``to give official permission for 
        something to happen.'' \11\ The ordinary meaning of supervision 
        is to ``monitor,'' and the ordinary meaning of continuing is 
        ``occurring in a cyclical or repetitious pattern.'' \12\ In 
        short, authorize and continuing supervision require some 
        process to ``give official permission or approval to,'' and 
        ``monitor'' in some ``cyclical or repetitious pattern'' with at 
        least one purpose of such process to ``assure'' that commercial 
        actors are complying with OST obligations.\13\
---------------------------------------------------------------------------
    \11\ See MacMillan Dictionary, http://www.macmillandictionary.com/
us/dictionary/american/authorize (last accessed Feb. 24, 2017).
    \12\ See Business Dictionary, http://www.businessdictionary.com/
definition/continuing.html (last accessed Feb. 24, 2017).
    \13\ See Schaefer, supra note 6.

    The first sentence of Article VI provides the context to the 
authorization and continuing supervision obligation. States parties are 
to authorize and supervise to ``assure'' conformity by their commercial 
actors with provisions of the OST. All of this only mandates very 
light-touch regulation because OST obligations applied to commercial 
actors are far from onerous as will be displayed below. It is important 
to realize that those same obligations help to some extent protect U.S. 
commercial space actors from injurious foreign actions.
    The fact that Art. VI is argued to be non-self-executing by many 
does not change the situation. Whether a treaty is self-executing is an 
issue of whether the treaty automatically enters the U.S. domestic 
legal system.\14\ The Executive Branch in the prior Administration 
proposed a Mission Authorization Framework to implement Art. VI. If the 
Executive Branch believed that Art. VI was self-executing, then it 
would already maintain domestic authority to authorize on-orbit 
activities, at least to ensure their compliance with the OST, unless 
the legislative history to the 1998 space launch amendments indicating 
Congress did not wish to grant on-orbit authority \15\ to the Executive 
Branch overrode that pre-existing authority.
---------------------------------------------------------------------------
    \14\ See Medellin v. United States, 552 U.S. 491, 505, fn. 2 
(2008)('' The label ``self-executing'' has on occasion been used to 
convey different meanings. What we mean by ``self-executing'' is that 
the treaty has automatic domestic effect as Federal law upon 
ratification. Conversely, a ``non-self-executing'' treaty does not by 
itself give rise to domestically enforceable Federal law. Whether such 
a treaty has domestic effect depends upon implementing legislation 
passed by Congress.'').
    \15\ See H.R. REP. NO. 105-347 (1997).
---------------------------------------------------------------------------
    It is no surprise that there is some debate over whether OST Art. 
VI or other OST obligations are self-executing. The Senate and other 
political branches do an excellent job since the Supreme Court's 2008 
decision in Medellin,\16\ and even beginning in the decade or two prior 
to that decision, in expressing their intent on the issue of self-
execution in domestic documents connected with treaties, such as in 
declarations included in Senate Resolutions of Advice and Consent.\17\ 
For many older treaties, such as the OST, Senate and political branch 
intent is often not so clear in domestic documents concerning the 
treaty, and that allows room for debate on the topic. But the key point 
today is that the international obligation created by Art. VI remains 
regardless of whether it is self-executing and failure to abide by it 
will risk foreign retaliation undermining the business case of U.S. 
commercial space companies and risk foreign space activities 
interfering with U.S. commercial operations.
---------------------------------------------------------------------------
    \16\ See Medellin, 552 U.S. 491 (2008).
    \17\ See, e.g., Sen. Ex. Rep. 110-12 (Senate Foreign Relations 
Committee ``included a proposed declaration that states that [the] 
treaty is self-executing. This declaration is consistent with 
statements made in the Letters of Submittal from the Secretary of State 
to the President on each of these instrument and with the historical 
practice of the committee in approving extradition treaties. Such a 
statement, while generally included in the documents associated with 
treaties submitted to the Senate by the Executive Branch and in 
committee reports, has not generally been included in Resolutions of 
advice and consent. The committee, however, proposes making such a 
declaration in the Resolution of advice and consent in light of the 
recent Supreme Court decision, Medellin v. Texas, 128 S.Ct. 1346 
(2008), which has highlighted the utility of a clear statement 
regarding the self-executing nature of treaty provisions).
---------------------------------------------------------------------------
    Congress is in position to implement U.S. obligations under Art. VI 
by passing legislation creating an authorization framework for new on-
orbit activities that ``assures'' compliance by U.S. commercial space 
companies with OST provisions. Passing implementing legislation also 
allows Congress to craft an authorization regime that comports with the 
spirit of permissionless innovation and mandates that Executive Branch 
take into account a limited number of other factors beyond OST 
compliance, such as national security/harmful interference with pre-
existing U.S. Government and harmful interference with existing U.S. 
commercial space assets.
    Congress has actually directed the Department of Transportation 
(DOT) in consultation with other agencies to take account foreign 
policy when granting launch licenses and conducting payload 
reviews.\18\ In fact, Congress was even more specific in directing the 
DOT to ``. . . carry out this chapter consistent with an obligation the 
United States Government assumes in a treaty, convention, or agreement 
in force between the Government and the government of a foreign 
country. . . .'' \19\ (emphasis added). This Congressional directive 
allows the Executive Branch in its regulations regarding launch 
licenses and payload reviews to take account of U.S. international 
obligations (whether self-executing or not). Congress has directed by 
legislation the DOT do so. What is creating the regulatory gap and 
potential future compliance problems with the OST is the legislative 
history to the 1998 amendments to the U.S. commercial space launch act 
in which Congress indicated it was not granting on-orbit authority to 
the DOT, rather only adding reentry authority to existing launch 
authority.
---------------------------------------------------------------------------
    \18\ See 51 U.S.C. 50905(b).
    \19\ See 51 U.S.C. 50919(e).
---------------------------------------------------------------------------
    If one goes through the OST to see what obligations implicate 
commercial actors, one is left with essentially the following checklist 
\20\:
---------------------------------------------------------------------------
    \20\ This checklist is drawn from Schaefer, supra note 6.

  (1)  Does the applicant's planned activity claim surface or sub-
        surface rights on a celestial body or prevent free access to 
        all areas of a celestial body, keeping in mind legitimate 
        rights to be free from harmful interference and legitimate 
---------------------------------------------------------------------------
        rights to extracted resources? (OST Arts. I, II & IX)

  (2)  Does the applicant's planned activity cause potentially harmful 
        interference with foreign space activities? (OST Art. IX)

  (3)  Does the applicant's planned activity risk harmful contamination 
        of a celestial body with Earthly matter? (OST Art. IX)

  (4)  Is the applicant willing to allow visits, based on reciprocity, 
        to its stations and equipment with maximum precautions and 
        conditions to ensure safety and no interference with their 
        operations? (OST Art. XII)

  (5)  Is the applicant respecting ownership rights of a foreign 
        operator's space object? (OST Art. VIII)

    One might add as a sixth factor that the applicant is willing to 
take possible steps to assist astronauts in distress should a need 
arise, although this is likely to be impossible in most circumstances. 
The fourth factor is also unlikely to arise in most instances because 
only a few countries would have the capabilities to even consider a 
visit, and those countries are unlikely to utilize their limited 
resources to attempt to visit another country's commercial stations or 
equipment, particularly when that visitation right is limited by 
reciprocity, as well as the ability to limit visits for safety and non-
interference reasons, and also bounded by budgetary constraints. 
Moreover, the ordinary meaning of the term visit means something of 
short duration and that is not extensive or intrusive. Further, an 
examination of the context and object and purpose of the provision may 
very well indicate that it was intended to allow verification of arms 
control provisions of the OST, thus obviating the need for visits to 
U.S. commercial stations and equipment.
    The above list of factors to take into account in ensuring OST 
compliance is not onerous, particularly when one realizes there is 
significant flexibility in how to define various terms such as 
potentially harmful interference and harmful contamination. Moreover, 
the obligation in Article IX regarding potentially harmful interference 
is only an obligation to consult in advance but does not prohibit 
proceeding with the activity. The U.S. commercial space industry will 
benefit if the U.S. Government is able to engage in consultations with 
foreign governments if a planned activity by a foreign government might 
cause potentially harmful interference with U.S. commercial activities.
    The U.S. Government can even have industry involved in setting the 
standards that define terms such as harmful interference and harmful 
contamination provided such definitions do not stray from the ordinary 
meaning of those terms. For example, some worry that COSPARS planetary 
protection standards developed in a scientific era of space will 
necessarily apply to U.S. commercial actors and that those standards 
will impose undue costs and burden on commercial actors. This concern, 
however, is unjustified \21\:
---------------------------------------------------------------------------
    \21\ See Schaefer, supra note 6.

        . . . for a number of reasons [COSPARS] standards, created and 
        followed in a science-inspired coalition of governments and 
        scientists, do not create a floor for what constitutes harmful 
        contamination under the OST. The U.S. Government recognizes 
        that COSPARS standards do not constitute ``subsequent practice 
        establishing the agreement of the parties'' under the Vienna 
        Convention on Law of Treaties interpretation rules and thus the 
        U.S. Government need not follow these standards in authorizing 
        on-orbit activities. Instead, the U.S. Government has the 
        flexibility to set its own planetary protection standards in a 
        commercial environment or follow industry set standards. 
        Congress recently has promoted industry standards over safety 
        matters by requiring periodic reports from the FAA in 
        consultation with industry on such matters every 30 months.\22\ 
        Congress could similarly push the FAA to promote industry 
        standards on matters related to ensuring compliance with OST 
        obligations by private parties--specifically non-interference 
        and harmful contamination (planetary protection) standards.
---------------------------------------------------------------------------
    \22\ See U.S. Commercial Space Launch Competitiveness Act of 2015, 
Public Law No. 114-90, Sec. 111(5).

    To meet the continuing supervision obligation, the U.S. Congress 
can simply require licensees to report material changes to operations 
or business plans as they occur and, in any event, provide a report to 
the authorizing agency once per year on activities. As the largest user 
of space, the United States has a significant national interest in 
maintaining and observing the basic, minimally burdensome rules found 
in the OST and thus maintaining the credibility and ability to pressure 
other nations to play by the same basic, minimally burdensome rules.
Failing to Fill the On-Orbit Authorization Gap Not Only Risks Non-
        Compliance with the OST but Also Creates Regulatory Uncertainty 
        and National Security Risks for Commercial Space Actors
    COMSTAC has called for a clear, transparent and predictable 
framework for authorizing and supervising new on-orbit activities. The 
industry panel later today will provide an opportunity to hear directly 
from industry on this matter, but certainty and predictability assist 
industry in obtaining investment and making efficient use of their 
resources. Investors are willing to take risk on the success of a 
technology, but regulatory uncertainty risk they are not particularly 
keen on assessing or undertaking.
    Additionally, there will need to be some acknowledgement of 
national security concerns (at least to protect important U.S. 
Government space assets) in any on-orbit authorization framework 
created by Congress. Otherwise, the Executive Branch will always be 
tempted, even if it requires stretching current authorities, to prevent 
activities that might cause damage to important national space assets. 
This is one of the risks created by the current regulatory gap for on-
orbit activities, a risk of a last minute blocking of a particular 
commercial activity. Former Deputy Assistant Secretary of Defense for 
Space Policy Doug Lovero's testimony in early March 2017 \23\ before 
the House Science Committee's Space Subcommittee highlighted that the 
damage caused by accidents in space is not limited in time or geography 
given the physics of space. He also noted an occasion where were it not 
for the voluntary accommodation of a commercial space company to modify 
its plans, the U.S. Government would likely have taken action to 
prevent or block the commercial company's plans from moving forward due 
to the risk of damage to an important U.S. Government space asset.
---------------------------------------------------------------------------
    \23\ See Statement of Doug Lovero, Hearing of House Science 
Committee Space Subcommittee, March 8, 2017, at pp. 7-9.
---------------------------------------------------------------------------
Guiding Principles and Concepts for an On-Orbit Authorization Regime 
        that Meets OST Article VI Obligations and Comports with the 
        Spirit of Permissionless Innovation
    I would like to offer eight principles for consideration by this 
Subcommittee and by the Congress as a whole to help ensure the spirit 
of permissionless innovation pervades the OST-compliant authorization 
regime it should create for new on-orbit activities \24\:
---------------------------------------------------------------------------
    \24\ These eight factors are drawn and slightly modified from with 
shortened analysis from Schaefer, supra note 6.
---------------------------------------------------------------------------
1. Creating a Default Presumption in Favor of Approval
    A default presumption in favor of approval is at the core of 
permissionless innovation thinking and should be a feature in any on-
orbit licensing regime Congress adopts.
2. Limiting the Factors that Can be Considered by the Executive Branch 
        in Making Determinations
    Factors for the Executive Branch to consider in authorizing new on 
orbit activities can be limited to compliance with international 
obligations, U.S. national security interests (or at least protection 
of U.S. government space assets), measures to limit space debris, and 
ensuring the proposed activity does ``not result in harmful 
interference with [already] approved and operating [U.S.] payloads and 
associated activities.'' \25\ The latter factor is necessary to protect 
U.S. commercial first movers from interference from U.S. commercial 
second-movers. Compliance with international obligations only deals 
with interference between U.S. companies and foreign entities.
---------------------------------------------------------------------------
    \25\ See American Space Renaissance Act, HR 4945, 
Sec. 309(a)(2)(C)(ii). One could also consider a factor that ensures 
space artifacts are not harmed, such as Tranquility Base, the location 
on Moon where Neil Armstong's footprints still reside and other similar 
artifacts. This additional factor would only implicate activities on 
the Moon in any event.
---------------------------------------------------------------------------
    There is some concern over abuse of non-interference rights or what 
may be termed ``space squatting.'' For example, envision a scenario of 
a company rushing a comparatively low-cost asset to a particularly 
valuable area of the Moon in order to attempt to cordon off an area 
through creation of a non-interference right. Congress can direct the 
Executive Branch to look at interference rights in this context with 
particular caution. Harmful interference is not defined in the OST nor 
in current domestic legislative proposals so there is flexibility to 
account for this scenario both internationally and domestically. As 
elaborated later in this testimony, this is one reason the Executive 
Branch armed with the ability to account for the economic, technical 
and diplomatic issues surrounding such scenarios should make these 
determinations, rather than creating a right of action in U.S. courts 
for adjudication. This is also another reason that companies should 
report material changes in operation to the licensing agency as part of 
that agency's continuing supervision obligation. License conditions can 
also be utilized by the agency to prevent any attempted ``space 
squatting.'' It is also important to note that the OST Art. II by 
prohibiting property rights in the surface or sub-surface of celestial 
bodies but allowing property rights in extracted resources with a 
limited non-interference rights for operations actually achieves in 
broad brush strokes a balance that seeks to avoid ``space squatting'' 
possibilities, particularly when one recalls that harmful interference 
is not defined and in any event really only triggers an advance 
consultation obligation. In the international context, as cases arise, 
the U.S. government will be able to address situations of this kind in 
bilateral negotiations with the relevant country--no major multilateral 
agreement is need or even wise at this stage.
3. Enhancing the Default Presumption by Explicitly Declaring U.S. 
        Leadership in Specific New Activities being Contemplated is in 
        the National Security Interest of the United States
    It is hard to contest that it is in the U.S. national security 
interest to have U.S. companies be the first to engage in new on-orbit 
activities, such as asteroid or lunar mining and to establish private 
research labs or hotels in-orbit or on the Moon. Congress can 
acknowledge and confirm this expressly in the statute to limit national 
security grounds for denying applications. While on-orbit satellite 
servicing is a bit more sensitive, it is far better to have U.S. 
companies be leaders than followers in this industry segment as well.
4. Granting Lead Interagency Status to An Agency Directed to Promote 
        Industry (& That Has Experience In Licensing and Inter-Agency 
        Coordination)
    If an agency with promotion authority of the industry is given a 
lead role in an interagency process, then it can help ensure that the 
benefits of an activity are fully considered as well as potential 
foreign competition that might seek to benefit from less stringent 
authorization processes abroad. Additionally, if an agency that has 
experience in licensing is given the authority this will help reduce 
transaction costs and avoid possible duplication in processes. For 
example, the FAA-AST has both promotion authority and experience in 
licensing and inter-agency coordination in commercial space matters and 
is likely the best candidate to be the lead agency for reviewing new 
on-orbit space activities. If such authority is given to another 
agency, duplication may be created as FAA-AST will still conduct a 
payload review, separately or as part of a launch license. Given the 
State Department's lead role in treaty interpretation and international 
consultations on space matters, and DOD's knowledge of critical 
national security space assets, it is important that on-orbit licensing 
remain an interagency process. Simply adding an on-orbit component to 
the existing payload review, along with the other suggestions made in 
these eight principles, may be the least costly and least disruptive 
solution to solving the on-orbit authorization gap.
5. Establish Deadlines with Executive Branch Notification and Reporting 
        Requirements to Congress
    In order to spur timely authorization decisions, the Congress can 
place significant notification and reporting requirements on the 
Executive Branch in any delegation of on-orbit authority to the 
Executive Branch.
6. Consider Establishing an Ombuds as Well as Possible Appeal Avenues 
        to the President or Vice-President in Cases of Denial
    I argued in my Permissionless Innovation article for consideration 
of two possible ideas to provide an avenue for a company to seek to 
overturn a denial of authorization and/or speed along delayed decision-
making \26\:
---------------------------------------------------------------------------
    \26\ See Schaefer, supra note 6.

        Congress might . . . consider creating an ombuds \27\ with a 
        top security clearance that is able to intervene in cases in 
        which decisions are delayed or rationales for decisions are not 
        fully explained (or cannot be explained due to lack of proper 
        security clearances by applicant company officials). Executive 
        ombuds take complaints regarding agency action and have been 
        created by statute on numerous occasions by the Congress. In 
        fact, there are so many ombuds that a coalition of Federal 
        ombuds has been created.\28\ Congress can also add an appeal to 
        a higher authority, such as a Vice-President-led Space Council. 
        . .or the President, in situations in which the ombuds working 
        with the interagency process and the company has not reached 
        satisfactory resolution.
---------------------------------------------------------------------------
    \27\ See, e.g., Coalition of Fed. Ombudsman, http://
federalombuds.ed.gov/federalombuds/index.html (last accessed Feb. 24, 
2017).
    \28\ See id.
---------------------------------------------------------------------------
7. Limit Chances for Regulatory Arbitrage and ``Flags of Convenience'' 
        to Help Ensure Innovation Occurs in United States
    If the Congress limits the factors the Executive Branch may 
consider in authorizing new on-orbit activities to compliance with 
international obligations, national security (including protection of 
U.S. government space assets), mitigation of space debris, and non-
interference with other existing U.S. space operators, it is quite 
unlikely that any regulatory arbitrage or ``flag of convenience'' 
situation will arise in which companies move abroad to take advantage 
of weaker licensing requirements. However, the regulatory uncertainty 
caused by the gap currently existing due to the lack of an 
authorization regime for on-orbit activities also risks driving 
commercial space business overseas as companies potentially look for 
countries willing to provide a license and certainty for investors. As 
a further assurance against regulatory arbitrage, the Congress might, 
if deemed necessary, require the interagency process led by the FAA-AST 
to consider in its decision making the global nature of the industry 
and the goal of not placing U.S. commercial space entities at a 
competitive disadvantage compared to the regulatory frameworks and 
authorization processes adopted by foreign countries.
8. Have U.S. Government Both Encourage and Give Substantial Deference 
        to Industry Standards
    Private standards-setting bodies and self-regulating organizations 
cannot in themselves be alternatives to an authorize and supervise 
framework consistent with OST Art. VI because Art. VI requires the 
government to be the one authorizing and supervising. However, as 
discussed earlier, there is no prohibition on the U.S. government 
deferring to industry-set standards and standards of self-regulating 
organizations (e.g., for what constitutes harmful interference or 
harmful contamination) in determining whether to authorize an 
activity.\29\
---------------------------------------------------------------------------
    \29\ See Schaefer, supra note 6.
---------------------------------------------------------------------------
Two Approaches that Should be Avoided in Authorizing On-Orbit 
        Activities
    Finally, I would like to recommend that Congress avoid two 
approaches in its drafting and construction of an on-orbit 
authorization regime \30\:
---------------------------------------------------------------------------
    \30\ See id.
---------------------------------------------------------------------------
1. Avoid Listing Specific Activities that Require Authorization or 
        Giving Blanket Statutory Authorizations to Certain Activities
    Constitutional Due Process and non-delegation principles do not 
require the Congress to list specific activities that require 
authorization.\31\ Policy reasons also argue against specific listing 
of activities that require authorization as it is hard to predict which 
activities will come to market first and non-listed activities will 
continue to fall in a regulatory gap with all its downsides.\32\ 
Blanket authorization for certain activities will also be difficult as 
it is often hard to say in advance with no context which activities by 
their very nature will comply with OST obligations because it often 
depends on how the activity is conducted. To take an example, lunar 
beer brewing is unlikely to cause any problems in terms of OST 
compliance or national security but it truly depends on how the 
activity is carried out--if the beer brewer plans to land its facility 
on-top of or just meters from an existing lunar facility of a foreign 
country this would raise concerns of harmful interference or if the 
lunar brewer was planning to use without permission another countries 
space rover present on the moon to distribute its product to lunar 
dwellers this would raise concerns of failure to respect ownership 
interests of foreign space objects. Carve outs for minor or modest or 
earthly-type activities by humans aboard stations could certainly be 
explored. For example, it is hard to envision the daily human activity 
(e.g., brushing teeth) within a space object or facility raising OST or 
national security concerns or interference concerns with a another 
space object and thus that could be a carve out.
---------------------------------------------------------------------------
    \31\ See id.
    \32\ See id.
---------------------------------------------------------------------------
2. Avoid Relying on the Common Law of Torts or a Newly Created Federal 
        Statutory Cause of Action for Unreasonable Interference
    The court system will be ill-suited to define the specifics of what 
harmful or unreasonable interference is in the context of outer space 
activities whether it is between two U.S. companies or a U.S. company 
and foreign company. The Executive Branch in consultation with industry 
(in the cases involving two U.S. companies) or in consultation with 
foreign governments (in the case of a U.S. company and foreign 
company's activity potentially clashing) will be the best form of 
cooperation to work out what is harmful interference as cases arise and 
to take into account the economic, technology, and diplomatic 
considerations such issues raise.
    It has been an honor and a pleasure to be before this Subcommittee 
and I look forward to answering your questions.

    Senator Cruz. Thank you, Mr. Schaefer. Thank you to each of 
the witnesses.
    There are a number of important issues that have been 
raised by this testimony. I want to start with the question of 
Article VI and the extent to which Article VI and the OST is 
self-executing.
    And for those following this hearing who are not 
necessarily living in the minutia of treaty law, the notion of 
self-executing is a fairly straightforward notion. It is a 
question of whether treaty language is in and of itself binding 
domestic law that has force of law on private citizens within 
the United States that is enforceable judicially and that binds 
the government. If a treaty is not self-executing, Mr. Schaefer 
is right. That doesn't mean the treaty has no force. It means 
its force is diplomatic and political in nature, that there is 
an international obligation, but it is not binding and 
enforceable law in United States courts.
    If I understand the testimony of the panel correctly, the 
first two witnesses, Mr. Dunstan and Ms. Montgomery, both 
testified that Article VI of the treaty is not self-executing, 
in your judgment. And, Mr. Schaefer, if I heard you correctly, 
you were a bit more agnostic on whether it was self-executing 
or not, although, at a minimum, you didn't testify 
affirmatively that it was self-executing. Is that a fair 
assessment of the testimony?
    Mr. Schaefer. We can take as a given that the OST is non-
self-executing. Again, I think people can come to different 
conclusions. That's one of the reasons why the Medellin case 
itself was a six-three opinion of the Supreme Court, right? But 
set that aside. Let's even accept the view that OST Article VI 
is non-self-executing. All it means is the Executive Branch 
doesn't have current domestic authority to look at OST 
obligations for new on-orbit activities. But, again, the 
international obligation remains. If the U.S. doesn't do that, 
we will suffer international consequences.
    The Administration almost implicitly admitted it's non-
self-executing because they asked the Congress to enact 
legislation. I should add even if it's self-executing, it still 
wouldn't matter because there would be a great need for the 
Congress to enact an authorization regime anyway. We don't want 
to just look at OST compliance, these minimally burdensome 
rules of the OST when authorizing an activity. We also want to 
look and see whether an applicant is interfering with an 
existing U.S. licensee's activities. We want to look and see 
whether an applicant is interfering with an existing U.S. 
Government activity, particularly a critical national security 
asset.
    So there are a number of factors Congress would want to 
have an Executive Branch agency look at anyway. There's a need 
to act separate and aside from this question of self-execution 
or non-self-execution.
    Senator Cruz. And I would note, going even a little bit 
further than you did, that I think the Executive certainly has 
the authority to recognize international law obligations and to 
make discretionary decisions consistent with those obligations, 
even if a particular treaty is not self-executing. What the 
Executive cannot do is violate United States law. Medellin v. 
Texas, which each of the witnesses has discussed, is a case I 
know very well because I argued and won the case on behalf of 
the state of Texas. So I spent many, many hundreds of hours 
deeply immersed in Medellin v. Texas.
    It is interesting in the discussion here, in that each of 
the witnesses also, if I understood you correctly--none of you 
are advocating reopening the Outer Space Treaty for 
renegotiation, and all three of you are arguing that consistent 
with the treaty language, it is possible to have a light-touch 
regulatory regime. Or, I think, Mr. Schaefer, you used the 
permissionless regulatory regime.
    Is that accurate, and if so, should Congress legislate a 
framework for commercial activity in space and incentivizing 
enhanced commercial activity in space, and what should that 
framework look like if we were to legislate in that direction?
    Mr. Dunstan. I'll kick off, Mr. Chairman. I think the 
important thing to understand about Article VI is there are two 
notions that are contained in Article VI, the first of which is 
that nations are responsible and liable for the activities. So, 
really, how the United States chooses to authorize and 
supervise is a matter of risk assessment for the U.S. 
Government. How much risk are we willing, as a government, to 
allow, and, therefore, how much of a regulatory regime do we 
want to pile on?
    So it is this sort of risk versus reward, and I can tell 
you from my experience in private practice, if the regulations 
become so burdensome, all of this stuff can easily go offshore. 
We saw that with our satellite construction industry after the 
implementation of ITAR, and we could easily see it on this. 
I've already had clients who have looked at the existing 
regulatory regime and how expensive it is to get an FCC 
license, for example, and they've gone overseas to do this. So 
we must be cognizant of the fact that if we don't get it right, 
we're going to have flight of this technology and this industry 
abroad.
    Ms. Montgomery. I think one of the important things to 
consider in contemplating a regulatory regime is to make sure 
that it is actually very narrowly tailored to only those things 
which are hazardous to others or could create interference so 
that we would avoid the pitfall proposed by the Section 108 
report that came out of the previous administration where 
everything would require authorization and supervision. I think 
we should start by Federalizing Connecticut, if we want to take 
that route, and see how it works out. It's a small state, and 
we could see if this is actually a feasible project.
    But that being said, I don't think that the treaty does 
require any particular activity to be addressed or authorized 
even, and I think that mining is a perfect example of that. On 
the ground, mining is dangerous. There are landslides, toxic 
fumes, horrible issues for worker safety, cave-ins, 
environmental issues. In outer space, there's no one else 
around, and if your robot is mining an asteroid where no one is 
going to get hurt, what is the purpose of government 
regulation? And if you don't need the regulation, why do you 
need the authorization?
    I use the frivolous example of playing the harp on the Moon 
as something that clearly doesn't require governmental 
oversight, and that goes to the point that you need to draw 
lines as to what requires oversight and what does not. So, 
clearly, lunar beer brewing might be dangerous--pressure 
vessels--I don't know--gases. But it might not. And so before 
we start saying everything needs to be regulated or that 
Article VI requires the regulation of everything, Congress 
needs to go through its usual process of saying, ``Is this 
something that is so hazardous or could cause such interference 
to others that it needs to be regulated?'' And if it does, you 
should call out, as we have in the past, launch needs 
regulation, reentry needs regulation, satellite interference 
needs regulation, but we shouldn't say everything.
    Ms. Schaefer. Permissionless innovation is never totally 
pure in the sense of no regulation at all. But at its core, 
there's a default presumption in favor of approval, and the 
Congress could certainly include a default presumption in favor 
of approval of these new space activities in an OST-compliant 
regime. They can also certainly limit the number of factors the 
Executive Branch can take into account: OST compliance, not 
interfering with existing U.S. commercial space activities, and 
not interfering with important U.S. Government existing 
activities and assets. The Congress can also give an agency 
that has promotion authority and experience with licensing and 
running an interagency process for space the lead over that 
process.
    I'll also address, because it was brought up, planetary 
protection standards. There has been some talk that COSPAR 
standards, that were created in a science era of space, somehow 
now is what meets the definition of harmful contamination in 
OST Article IX. The U.S. State Department explicitly has 
rejected this view. COSPAR standards are not setting any 
minimum floor that commercial actors need to comply with. The 
Congress can actually have significant deference given to 
industry-created standards for those OST terms that have 
significant flexibility in their interpretation, like harmful 
contamination and like harmful interference.
    The last thing I'll say is Ms. Montgomery mentioned that 
granting authority to authorize new on-orbit activities to the 
Executive Branch is akin to trying to federalize everything in 
Connecticut. It's really not. The better analogy because space 
is a non-sovereignty zone, is that it's really like telling 
U.S. citizens that travel to Antarctica, another non-
sovereignty zone, the following: ``Here are a few minimal 
criteria you have to follow to ensure we're complying with our 
international obligations and that you're not interfering with 
existing U.S. activities or U.S. Government activities down 
there.'' That's the appropriate analogy for what we're trying 
to do in the space.
    Senator Cruz. Thank you, Mr. Schaefer, and I'll note the 
next Senator up, the Ranking Member, is the Senator from 
Massachusetts, who might well be in favor of federalizing 
Connecticut.
    [Laughter.]
    Senator Markey. I know there are some red states that 
believe they've already been federalized----
    Senator Cruz. Indeed.
    Senator Markey.--and that was the subject of the 2016 
campaign.
    Give me your view as to what the reaction would be in 
Russia or China or India if the Senate legislated in the area 
of Article VI, if it put requirements on the books. What's the 
reaction internationally if we do that?
    Mr. Schaefer?
    Mr. Schaefer. There are going to be some countries that 
oppose our interpretations of various OST provisions for 
matters of national interest, regardless of what we do. But I 
think when we comply with Article VI of the OST, we increase 
the number of countries that we have credibility to lead toward 
the U.S.-inspired, commercially-friendly interpretations of the 
Treaty.
    And when we don't comply with Article VI of the OST, what 
we do is we send some countries China and Russia's way. China 
actually has been noticeably pretty quiet when it comes to 
asteroid mining and property rights but as a general matter we 
send countries their way if we do not respect our treaty 
obligations. We also have less credibility to insist those 
countries follow OST obligations. When a U.S. company is a 
first mover, if we don't have as part of our criteria for 
authorizing commercial companies a look at whether they are 
causing harmful interference with a preexisting activity of 
other OST parties, then we won't have the credibility to insist 
on those parties doing the same for us.
    Senator Markey. That's always the issue for the first 
mover. There are fast followers, sometimes even faster 
followers. So you have to think through the consequences of 
that.
    Mr. Dunstan, what do you think?
    Mr. Dunstan. I think, again, as I testified, that the 
United States is in a unique position because of our 
constitutional historical background, because of the sort of 
notion that Americans are free to do what they want unless they 
are prohibited from doing it. By taking action here, the 
Congress, I think, can lead internationally as we have in other 
areas, as Congress did just a couple of years ago with the 
CSLCA in extracted resources. We led. Sure, there was a 
pushback from some in the international community, claiming 
that that was equal to an Article II appropriation violation, 
but yet many other countries are following suit. See what 
Luxembourg is doing.
    We certainly have led in tourists, suborbital tourists. The 
approach the United States has taken and directed the FAA in 
terms of that has been followed suit by other countries. We 
are--by being the first mover, we can be the leader, and I 
think that what Congress does here is going to be extremely 
important going forward, and I think, ultimately, we'll be 
followed by the vast majority of other countries.
    Senator Markey. Mr. Schaefer, I heard you say in your 
testimony that you felt that there were lessons from the 
Internet that could be applied in outer space. Can you give me 
some details in that analogy that could help us to flesh out 
how we might proceed from here?
    Mr. Schaefer. Sure. Permissionless innovation is a concept. 
You don't want to stifle innovators, people that are dealing 
with sophisticated technology, with overly burdensome 
regulation. Actually, a lot of the space entrepreneurs and 
Internet entrepreneurs are not real keen on hiring lawyers as 
their first people on board.
    Senator Markey. Shocking.
    Mr. Schaefer. They bring them on kind of last and 
reluctantly, right, and that's great. We want the engineers set 
free, right? But with that said, permissionless innovation is 
rarely, if ever, pure. Rather it's contextual. The space 
context is a little bit different than the Internet context 
because we do have an international agreement we're a party to, 
the OST, that has an Article VI that says we have to authorize 
and supervise, and the ordinary meaning of the term, authorize, 
is give official permission to the activity. The important 
point, though, is this Treaty obligation certainly doesn't have 
to lead to overly burdensome regulation or an overly burdensome 
checklist that the Executive Branch would run through.
    But that is one contextual difference between outer space 
and the Internet. We have very little international law and 
treaties governing the cyber domain, unless you're talking 
about use of force or criminal law issues. Then you can get 
into some treaties. But very little treaties other than that. 
In outer space, that's one difference.
    The other difference is in outer space, it's longer time 
horizons for investment, typically, although there are some new 
business models that shorten that time horizon. But in the 
Internet, it's very quick, right? But when you have a long time 
horizon for investment such as with most space activities, you 
really do need more regulatory certainty.
    And what happens when you have this authorization gap, 
you're creating domestic uncertainty with space businesses 
asking: Who do I go to to get authorization? Do I really need 
it? Are my investors still going to come on board? And then the 
international uncertainty of not complying with Article VI 
raises additional questions: Are foreign countries going to cut 
off access to foreign customers and to foreign partners? When 
you're dealing with long time horizons, it's really important 
to have that certainty and predictability, for sure.
    Senator Markey. Thank you.
    Thank you, Mr. Chairman.
    Senator Cruz. Thank you.
    Senator Peters.

                STATEMENT OF HON. GARY PETERS, 
                   U.S. SENATOR FROM MICHIGAN

    Senator Peters. Thank you, Mr. Chairman.
    And thank you to our panelists for your testimony here 
today.
    One issue that came up in another committee--I serve on the 
Armed Services Committee in dealing with space policy. One 
issue that came up of particular concern is the amount of space 
debris that now exists in orbit. I think I was reminded of a 
recent launch by India where there were 104 satellites, I 
believe, on one launch vehicle that--many of those are U.S. 
nano-satellites, but, nevertheless, an awful lot of stuff is 
going up there, into the tens of thousands to keep track of. 
And as you are well aware, this material is moving at 17,000-
plus miles an hour and can cause a great deal of damage.
    Give me a sense of what you think--or should we put 
together some sort of legal framework to deal with this debris 
differently than we do now? Whoever.
    Ms. Montgomery. There are existing regimes on the 
commercial side, regulatory regimes that address debris. The 
FCC and NOAA both have debris rules and require mitigation of 
the creation of debris. The FAA also has regulations that 
require that you power down your batteries and vent your upper 
stage so that there is no debris created.
    The question is whether other things will require debris 
regulation, such as satellite servicing, perhaps. Those all 
have cameras and transmitters on them, and they could all, 
perhaps, be placed without any change in law under the existing 
regimes of the FCC and NOAA. So I think there's something in 
place now. Whether more is required----
    Senator Peters. Is that sufficient, in your mind?
    Ms. Montgomery. It sort of covers everything you can think 
of at the moment. So I do think it's sufficient for the moment.
    Senator Peters. Does everybody agree?
    Mr. Dunstan. Well, there are actually, potentially, five 
different government agencies that have their own separate--and 
they sit in five different sets of the Code of Federal 
Regulations. They're all based on models and standards adopted 
by NASA years ago, but they're all slightly different. So it's 
actually possible to have a mission where you may have to have 
three or as many as four different orbital debris mitigation 
statements, and if one of the agencies disagrees or wants a 
change, then you have to loop all the way back through.
    So this is when I talk about sort of the cumbersome 
regulations, because they all sort of grew up generically in 
each of these stovepipes. A sort of consolidation of that 
authority, I think, would really be helpful to industry. And I 
would agree that there is enough on the books right now. As 
long as we enforce it and make sure that they abide by the 
debris mitigation standards, that's really not a worry going 
forward.
    Senator Peters. So if I understand both of you correctly, 
there's enough out there already, but we need to harmonize, in 
your estimation.
    Mr. Dunstan. Yes, harmonization would be very nice.
    Senator Peters. Mr. Schaefer?
    Mr. Schafer. One thing I would add--there's a certain 
element of the scientific community that would like to see not 
just debris mitigation but actual active debris remediation. 
The mitigation guidelines internationally, that were inspired 
by the U.S. domestic guidelines originally, have certainly 
helped. But when you have incidents like the Iridium incident 
in 2009 or the Chinese ASAT test in 2007, those types of 
activities can basically erase a decade's worth of beneficial 
mitigation activities.
    There is some thought for sustainability in space that you 
would want to actually remove some of the existing debris, and 
the problem becomes that many scientists would say the first 
objects to remove are the largest mass objects, and a lot of 
them are actually of Russian origin, and that gets us into the 
legal issues of ownership of space objects. Thus, there are 
some legal hurdles to work through in addition to technology to 
develop to proceed with active debris remediation.
    But in addition to the mitigation guidelines that are 
present internationally, and enforced by the U.S. through 
licensing criteria that Ms. Montgomery spoke of, the Congress, 
in a 2010 statute, called on the Executive Branch to start 
looking more into active debris remediation.
    Senator Peters. And, finally, you mentioned, of course, the 
Russian debris and other debris from other countries that are 
now engaged in active space programs. You've talked about the 
regulatory framework we have here in the United States. What's 
your assessment of the framework, broadly, with other countries 
that are launching spacecraft into orbit in relation to the 
debris?
    Mr. Dunstan. I would say, generally, most countries are 
compliant unless it's in their interest not to be. There was an 
ESA satellite not that long ago, Envisat, which had been 
launched a number of years ago, and they ultimately ran it dry. 
It's almost half the size of this room. It's one of the largest 
satellites ever. And rather than de-orbit it, which they should 
have, which the debris mitigation standards required, they just 
ran the thing dry.
    Their argument was, one, it was still producing 
scientifically important information; and, two, it was designed 
prior to when ESA had adopted orbital debris mitigation 
standards. So they went so far as to not say it wasn't 
launched, but it was designed, and therefore, the orbital 
debris mitigation standards didn't apply. There are many 
instances when countries in their own self-interest will either 
waive--and we do it ourselves from time to time. There are a 
number of Iridium satellites that have been--that the FCC has 
waived the requirement that they be de-orbited because they 
want to run them dry of fuel. So I think we have to be honest 
with ourselves and say we have these mitigation requirements 
and we need to stick to them even if it might not be in our own 
interest to do so.
    Senator Peters. Thank you.
    Senator Cruz. Senator Nelson.
    Senator Nelson. I would ask, how is the existing Outer 
Space Treaty regime beneficial to the U.S. space industry? And 
I would leave hanging for Colonel Melroy in the second panel: 
What are the benefits of the existing Outer Space Treaty regime 
for our commercial, civil, and national security space 
interests?
    Ms. Montgomery. In the area of liability, it does create a 
certain amount of certainty because the treaty set out how a 
particular country is a launching state and therefore liable 
for any damage caused by activities that launch from the 
country, that the government of that country launches or 
procures, or using the facilities of that country. So a lot of 
that certainty is very useful for the commercial sector. It has 
been implemented domestically for the launch industry through 
the Commercial Space Launch Act, and that has proved to be a 
benefit for the commercial industry.
    Mr. Dunstan. I would add that one of the most important 
provisions of the Outer Space Treaty is the provision that 
states--that any object that is launched from the surface of 
the Earth is the property of the launching state and always 
will be the property of the launching state. So that makes it 
very clear from an international basis that nobody can come 
along and pluck off your satellite under international law.
    Now, the flip side, as Mr. Schaefer pointed out, when we've 
got all this junk, all this abandoned stuff up there, it still 
remains the property of, say, Russia, all these upper stages, 
and, unfortunately, we don't have sort of concepts of maritime 
law where we could go in and just yank these things out. But it 
certainly gives confidence to an American company that if they 
launch a satellite, it will always remain theirs, and they can 
operate it so long as they abide by United States law.
    Mr. Schaefer. So I think it's a great question. We talked 
about minimally burdensome obligations in the OST for U.S. 
companies, but the reciprocal side, the other side, is that 
these obligations do benefit U.S. companies. Take, for example, 
OST Article II's non-appropriation, non-sovereignty obligation. 
If some other country is a first mover realizing there's going 
to be a couple of countries besides the United States that are 
possible first movers, we're not going to have an entire U.S. 
industry blocked from that area of a celestial body, because 
there's free access to all areas of celestial bodies. These 
obligations are certainly in our businesses' interest. The fact 
that countries have to think about whether they're causing 
potentially harmful interference with U.S. activities before 
they proceed is another example of a benefit. So there are 
protections in the OST that do provide more certainty for U.S. 
companies in terms of their business plans and ventures.
    Senator Nelson. Thanks, Mr. Chairman.
    Senator Cruz. Thank you.
    Senator Hassan.

               STATEMENT OF HON. MAGGIE HASSAN, 
                U.S. SENATOR FROM NEW HAMPSHIRE

    Senator Hassan. Well, thank you, Mr. Chair, and thank you 
to the panelists.
    We're obviously talking about the opportunities that space 
exploration presents for scientific discovery and advancing our 
knowledge here on Earth and creating new opportunities for our 
businesses to thrive. I'm really pleased that you all are here 
today and that the Committee has gathered to examine the U.S. 
Space Treaty and whether and how this legal framework can be 
improved upon or sustained.
    As Senator Cruz indicated, I also wanted to make sure that 
the testimony from Michael Listner was in the record. Mr. 
Listner happens to be not only a space expert and founder of 
the legal and policy consulting firm called Space Law and 
Policy Solutions, but he's based in my home state of New 
Hampshire. So I have spent a little time looking at his 
testimony, and I think it reflects what we've been discussing, 
which is the fact that the decision about whether to withdraw 
from the Outer Space Treaty would be a very difficult one for 
us to make. There are obviously lots of considerations, most of 
which that I had on my mind you've all touched on.
    But I wanted to give you the opportunity just to help us 
think through, as we all assess these matters, how we should 
balance the interests of industry stakeholders for further 
exploration and advancement with our top priorities in national 
security. What should we be thinking about in terms of that 
balance?
    Mr. Dunstan. That, of course, is the difficult question. 
How do you balance--and I would say there are three balancing 
acts. There's the commercial aspect, there's the scientific 
aspect, and then there's the national security aspect, and it's 
a tough balance to do.
    I can just report, in terms of my experience, in what could 
potentially become a parallel mechanism, which was the ITAR, 
the International Traffic in Arms Regulations, and what we saw 
there was a regime which was non-transparent, which was non-
appealable. It was essentially a black box. So whatever we do, 
that balancing, to the extent we can--we understand there are 
national security interests where we can't always give you a 
reason, no.
    But we've got to have a regime that allows you to have a 
right of appeal, that has the right to get an answer, as 
opposed to the ITAR regime. It was just no, and you never found 
out why. So transparency in whatever Congress does, I think, is 
critical, and that will give, I think, the industry as much 
sort of certitude as it can get.
    Senator Hassan. Thank you.
    Ms. Montgomery.
    Ms. Montgomery. Yes. I think one of the problems--I agree 
with everything Mr. Dunstan said, just to start with. But, 
also, one of the solutions to that, as Congress considers 
drafting legislation, is to not just use--is to not use very 
vague language. There are lots of statutes in the space arena 
out there that just talk about national security. Well, there 
are lots and lots of things that that could mean, and, 
unfortunately, it can sometimes mean that the regulatory person 
in charge of figuring out if there's a national security issue 
sits there somewhat paralyzed--what could I be missing? And 
then you get lots and lots of delay.
    So I think that if Congress clearly articulated the 
standards, for instance, we do not want anyone--and I'm just 
making this up--we do not want anyone transmitting pictures of 
my secret satellite back to Earth, and just make that a clear 
prohibition, then that would be very helpful, and so, of 
course, the National Security Agency might give you language a 
little bit more vague than what I just said, but perhaps not so 
vague that the non-transparent black box becomes the norm.
    Senator Hassan. Thank you.
    Mr. Schaefer.
    Mr. Schaefer. I would just say there are some competing 
interests there, but sometimes not. There are some synergies, 
too, and, in fact, one of the things I recommended in my 
written testimony was that Congress actually declare that 
having U.S. companies be the leaders in these new space 
activities, at least the ones that are foreseeable, is actually 
in the national security interest of the U.S.
    To take a couple of examples, China controls 85 percent of 
the rare Earth minerals on Earth. If we have U.S. companies--
and, again, it depends on whether there's an ultimate business 
case for it--but if we have U.S. companies that are able to get 
access to those minerals on celestial bodies, then that can 
change the dynamics. It's also in the U.S. national security 
interest for U.S. companies to be the first to do, and be the 
best performers at on-orbit satellite servicing. It requires 
rendezvous and proximity operations and it's better to have 
that technology, or the most advanced forms of that technology, 
developed in the U.S. and performed by U.S. firms.
    I know in remote sensing, it seems to some like the 
tradeoffs are a little more stark. But in these new on-orbit 
activities, there are actually a lot of synergies, and I think 
Congress could actually so state in the law to limit that 
national security barrier to the commercial activities.
    Senator Hassan. Well, thank you, and thank you all for very 
thoughtful testimony.
    Senator Cruz. Thank you.
    Let me ask another question that came up in some of the 
answers here. There were multiple references to satellites and 
space junk and property rights, and I want to ask the panel's 
view on what should the legal regime be. Mr. Dunstan referenced 
maritime law, for example, encouraging salvage. Should we have 
a similar regime encouraging salvage in the removal of space 
junk?
    And a related question--Article II of the Outer Space 
Treaty says that outer space, including the Moon and other 
celestial bodies, is not subject to national appropriations by 
claims of sovereignty, by means of use or occupation, or by any 
other means. Is that prohibition consistent with our interest 
in encouraging robust investment in exploration and development 
of outer space?
    We had the last great frontier in America, settling the 
West. We had the Homestead Act, which provided an acute 
financial incentive for people to take the great risk of going 
and investing. Do we need, with respect to outer space, with 
respect to the Moon or Mars, the equivalent of 40 acres and a 
mule, you know, 40 miles and a lunar rover? What role should 
property rights play in space, either with satellites or with 
lunar settlements or settlements on Mars or otherwise? And I 
would open this to all the witnesses.
    Ms. Montgomery. I think that there are two points on the 
property rights question, and I'll leave salvage to someone 
else. But Article II does not prohibit commercial or private 
ownership of land, and I think that's very clear. The fact of 
the matter is that property rights serve as a great incentive 
to investment. If you don't have property rights, you cannot 
put up your land as collateral. You cannot get investors. 
There's nothing to securitize your investors' interests, and 
you yourself are hampered in your ability to plan if you don't 
know that the property that you are using and, hopefully, going 
to be spending decades on is yours.
    So I do think that the United States should figure out a 
way to recognize property rights extra terrestrially, and I do 
think that the Outer Space Treaty allows that. I do believe 
there are a lot of people who disagree with my view, and I 
think that it is something that needs to be looked at very 
carefully and thought through, because the incentives are there 
for development if there are property rights.
    Mr. Dunstan. So I would disagree with Laura--the first time 
I've disagreed with her today--because I don't think the Outer 
Space Treaty, as it is written, would allow for the United 
States to even recognize domestically that.
    But I would give you another analogy to the opening of the 
West, and that would be the fact that the United States 
retained title in what are now the reservations of the Native 
Americans, and yet you are able to go on and buy a mining lease 
or a drilling lease on those. Now, it's cumbersome, but that's 
because we put this bureaucracy on top of it.
    But people can go in and mine resources off of our Native 
American reservations and extract those resources and profit 
from them without actually owning the land on which they're 
doing that. So I think in that way, an asteroid could be the 
same thing. You can't own the whole asteroid, but everything 
you take out of it becomes yours, and that's what Congress 
recognized with the CSLCA in 2015.
    Senator Cruz. So let me press you a little bit on that, Mr. 
Dunstan. Two follow-ups. One, in your initial testimony, you 
did not advise renegotiating the OST. I want to ask how that's 
consistent with the answer you gave; and, two, that the analogy 
of Indian territories--there, the United States--if you're 
retaining title under Article II, the United States and other 
nations can't make claims of sovereignty. So how is that--how 
do we reconcile that to incentivize serious investment?
    Mr. Dunstan. So the Native American analogy is the fact 
that the United States owns the land, not the tribe. So put the 
United States in this analogy at the sort of international 
level. So the tribe doesn't own it, yet the tribe can enter 
into mining leases, which don't convey a property right 
underneath it. So as the analogy said it, you don't have to 
have underlying property rights to still extract resources from 
it.
    And, second, I think Article II is pretty clear that we 
can't domestically recognize property rights. We would have to 
go in and renegotiate that treaty, and I think that's a----
    Senator Cruz. But from whom would you obtain the lease? In 
your analogy, you have the United States, from whom you could 
obtain the lease.
    Mr. Dunstan. Right.
    Senator Cruz. The international community--there is no 
entity from whom to obtain a lease.
    Mr. Dunstan. That's correct. You just can go out and mine 
that asteroid. You just can't own that asteroid. You can't 
obtain a property right in the whole asteroid, only with what 
you extract from it.
    Senator Cruz. And you'd say the same for the Moon and for 
Mars?
    Mr. Dunstan. Same for the Moon and for Mars, yes.
    Senator Cruz. Mr. Schaefer.
    Mr. Schaefer. Well, on the question of salvage, maritime 
salvage doesn't work for most space debris because most space 
debris is valueless, so there's nothing to be saved from the 
peril, so to speak. There is a little used concept called 
``liability salvage'' that has found some reflection in U.S. 
maritime law, where you're saving the person from the liability 
they would face if their piece of junk hit something valuable.
    But given that it's a fault-based standard of liability in 
space even liability salvage may be difficult to implement. 
Who's at fault if a piece of debris hits an active satellite, 
the thing that can move or the thing that can't move? And it 
might depend quite a bit on the facts. Was the debris created 
in opposition to the internationally recognized debris 
mitigation guidelines or not? Thus, establishing liability 
would be very fact specific. In short, liability salvage 
theoretically may have some application, but pure maritime 
salvage doesn't work.
    On the property rights issue, obviously, under U.S. 
interpretation of OST as now recognized and codified by the 
Congress, U.S. space businesses have property rights in 
extracted resources. That's 38 years, at least, of U.S. 
interpretation on the issue, now confirmed and codified by the 
Congress.
    In terms of cordoning off areas, it's really the non-
interference right that comes into play. It might be better to 
proceed on a case-by-case basis with adding flesh to the 
principle. We could get a situation of U.S. company versus U.S. 
company, both going for the same area of a celestial body, and 
needing to assess what a non-interference right encompasses.
    We could also have a U.S. company versus foreign country 
situation, and it's probably best to leave the discretion in 
the Executive Branch's hands, case-by-case, applying those 
basic guiding principles than trying to do a complete rewrite 
and upset of Article II of the OST, which I think very few 
countries would join. I think bilateralism, case-by-case, is 
probably the better way to go in the near and medium term at 
least.
    Senator Cruz. Well, thank you to each of the witnesses. I 
think this was a very productive and educational panel. I will 
note that I'm looking forward to trying Ms. Montgomery's 
Celestial Moon Beer if and when it is brewed.
    [Laughter.]
    Senator Cruz. And with that, I want to thank each of the 
three witnesses in the first panel and welcome to come forward 
the second panel, which we will move immediately to as soon as 
you have a seat.
    I want to welcome the second panel now. We will have a 
total of four witnesses. The first is Dr. Bob Richards, who is 
a space entrepreneur and a futurist. He is Co-founder of Moon 
Express, Inc., a space transportation and lunar resources 
company located at Cape Canaveral, where he currently serves as 
President and CEO. Dr. Richards chairs the Space Commerce 
Committee of the Commercial Spaceflight Federation, serves on 
the Board of the Space Foundation, and is a Member of the 
International Institute of Space Law.
    Our second witness is Mr. Peter Marquez, who is the Vice 
President for Global Engagement at Planetary Resources, where 
he is responsible for working with governments around the 
world. Mr. Marquez has held positions in the Air Force, in the 
Office of the Secretary of Defense, working on national 
security space programs and special programs. After his time in 
the Pentagon, Mr. Marquez served on the National Security 
Council as the Director for Space Policy for President George 
W. Bush and also for President Barack Obama.
    Mr. Mike Gold is the Vice President of Washington 
Operations and Business Development at Space System Loral. Mr. 
Gold previously served for 13 years with Bigelow Aerospace, 
where he supported a variety of non-traditional space 
activities. Mr. Gold also serves as the chair of COMSTAC, which 
is the Federal advisory committee that provides advice and 
counsel to the Federal Aviation Administration's Office of 
Commercial Space Transportation.
    And, finally, Colonel Pamela Melroy is a retired Air Force 
test pilot and NASA astronaut. Colonel Melroy is a veteran of 
three missions to the International Space Station and is one of 
two women to command the space shuttle. After leaving NASA, 
Colonel Melroy worked in industry and at the Federal Aviation 
Administration's Office of Commercial Space Transportation. 
Colonel Melroy recently left DARPA after serving 4 years as the 
Deputy Director of the Tactical Technology Office. Colonel 
Melroy is now owner and CEO of Melroy and Hollett Technology 
Partners.
    Welcome to each of you.
    Dr. Richards, you may begin.

STATEMENT OF ROBERT (BOB) RICHARDS, FOUNDER AND CHIEF EXECUTIVE 
                  OFFICER, MOON EXPRESS, INC.

    Mr. Richards. Thank you, Mr. Chairman, Ranking Member 
Markey. It's an honor to be invited to speak with you today 
about reopening the American frontier and unleashing the 
innovative power of the U.S. commercial space industry as a 
driver of the Nation's space economy and settlement.
    Our need to expand humanity into space is not in question. 
To consider otherwise would put an expiry date on the human 
species. What is in question is the way that we will expand 
into space and which nations will set the standards of freedom 
and endeavor and reward as we enter these new frontiers. As a 
country built on the foundations of first frontiers, the United 
States stands unique in all the world with the opportunity to 
focus the power of its entrepreneurial history and enterprising 
vision to open up the space frontier and in so doing create a 
peaceful, prosperous, and boundless future for all humanity.
    Today, I address you as the founder and CEO of Moon 
Express, a privately-funded commercial space company created to 
seek and unlock the resources of the Moon through a progressive 
series of commercial robotic missions, starting with our maiden 
voyage scheduled to launch late this year. Relevant to the 
subject of this hearing is that last year, after months of 
interagency consultations, Moon Express became the first 
commercial entity to receive formal U.S. Government approval to 
send a robotic spacecraft beyond traditional Earth orbit and to 
the Moon. This was, in fact, the first time in history that any 
government signatory to the Outer Space Treaty exercised its 
rights and obligations to formally authorize and supervise a 
commercial entity to fly beyond traditional Earth orbit and to 
the Moon.
    The framework we used for our mission approval was an 
interim patch that built on the existing payload review process 
of the Federal Aviation Administration Office of Commercial 
Space Transportation with a series of additional voluntary 
disclosures intended to help satisfy U.S. obligations under the 
OST. We worked independently with all stakeholder Federal 
agencies who, in turn, worked collaboratively and creatively to 
find a way to approve our ad hoc approach, even as Congress and 
the administration determined a more formal framework.
    Looking beyond our mission approval, which is an interim 
solution, we support a process that focuses on streamlining the 
regulatory framework, limits the government's role to a light 
touch, promotes American innovation and investment, and 
satisfies our international obligations. In essence, we believe 
that a commercial space activity should enjoy deemed 
authorization, presumed authorization, unless there is a 
clearly evident or meaningful, demonstrable impact on national 
security, U.S. obligations under international treaties, or 
harmful interference with others.
    The key to our survival as a species, in fact, the only key 
we hold in the long term, is to evolve into a multi-world 
species, harnessing the practically infinite energy and 
resources of space and easing the pressure on our home planet. 
Preservation of the Earth and our civilization is precisely the 
reason we need to expand our economic and societal sphere into 
space, beginning with the Moon and then beyond.
    But it's not just about boldly going. It's about boldly 
staying. It's about moving the economic sphere of Earth outward 
in a way that uses the material wealth of space to solve the 
urgent problems we now face on Earth, to bring the poverty 
stricken segments of the world up to a decent standard of 
living without recourse to war or punitive action against those 
already in material comfort, to provide for a maturing 
civilization the basic energy vital to its survival through 
freedom of commerce in space.
    We are at the cusp of a magnificent adventure, an evolution 
of our species perhaps as significant as the evolution of life 
from ocean onto land. Our emergence from Earth into the ocean 
of space holds promise and opportunity, but also dangers of 
migrating conflict, and for the first time in human history, an 
opportunity to conquer new worlds without conquering each 
other.
    The United States has taken proactive measures to support 
its private sector and has interpreted the Outer Space Treaty 
in favorable ways to the Constitution and the founding 
principles of this country. While the Outer Space Treaty may 
appear antiquated in some ways, it is a remarkably visionary 
document with profound principles that have served the world 
well for decades.
    I believe time and energy is better spent in continuing to 
interpret the Outer Space Treaty in favor of international 
collaboration without constraining the rights, the benefits, or 
the freedoms of U.S. commercial enterprise. We aspire to the 
stars. Mars beckons as a second home for humanity. The Moon is 
our gateway.
    Thank you, Mr. Chairman, for the opportunity, and I welcome 
questions afterwards.
    [The prepared statement of Mr. Richards follows:]

         Prepared Statement of Robert (Bob) Richards, Founder 
            and Chief Executive Officer, Moon Express, Inc.
    Mr. Chairman, Senator Nelson, members of the Committee,

    It is an honor to be invited to speak with you today about 
reopening the American frontier and unleashing the innovative power of 
the U.S. commercial space industry as a driver of the Nation's space 
economy and settlement. Although our lives are dominated with the 
everyday challenges of life on Earth and with each other, these matters 
are ultimately trivialized by the challenge of securing humanity's 
future through our expansion into space, utilizing the practically 
infinite energy and resources of space, and ultimately becoming a 
multi-world species.
    Our need to expand humanity into space is not in question, to 
consider otherwise would put an expiry date on the human species. What 
is in question is the way we will expand into space, and which nations 
will set the standards of freedom of human endeavor and reward as we 
enter these new frontiers. As a country built on the foundations of 
Earth's frontiers, the United States stands unique in all the world 
with the opportunity to focus the power of its entrepreneurial history 
and enterprising vision to open up the space frontier, and in so doing, 
create a peaceful, prosperous and boundless future for all humanity.
Personal Journey
    My personal journey has been vested in creating international 
institutions and enterprises necessary to create a peaceful and 
prosperous spacefaring civilization. As a student in the 1980s, I co-
founded Students for the Exploration and Development of Space, today 
still the largest student-run global space organization; the Space 
Generation Foundation, whose follow-on Advisory Council works with the 
United Nations to inspire and enable global youth to pursue their 
dreams in space; and the International Space University, which since 
its founding in 1987 has instructed thousands of graduate level 
students from both our main campus in Strasbourg, France, and our Space 
Studies Programs hosted around the world. Many graduates of this 
program today are in positions of leadership in the global space arena. 
More recently in 2008, I co-founded Singularity University, which has 
become a hub of global entrepreneurial innovation from our campus in 
Silicon Valley, tackling some of the worlds grand challenges with 
exponential technologies.
    I have also had the honor of working with NASA on the successful 
delivery of a robotic spacecraft to the north pole of Mars, a 
scientific mission that added much to our understanding of the Red 
Planet, and with the U.S. Air Force on the demonstration of 
technologies in Earth orbit that enable new capabilities in autonomous 
rendezvous and proximity maneuvers.
    Today, I address you as Founder and CEO of Moon Express, a 
privately funded commercial space company created to seek and unlock 
the resources of the Moon through a progressive series of commercial 
robotic missions, starting with our maiden voyage scheduled to launch 
late this year.
The Moon--Our Eighth Continent
    I look on the Moon as Earth's eighth continent; a new world with a 
total land mass approximating North and South America combined. Thanks 
largely to the terabytes of data generated by the NASA's Lunar 
Reconnaissance Orbiter, we know the Moon has vast resources, 
accumulated through billions of years of asteroid bombardment that 
enriched the Moon much the same way as Earth, except for one key 
difference: accessibility. Unlike Earth, these lunar resources are 
largely on or near the lunar surface, relatively accessible except for 
the challenging economics of retrieving them when all the energy to do 
so needs to come from the Earth's surface. But this too has now changed 
. . .
    Perhaps one of the greatest practical discoveries of our generation 
is the presence of vast quantities of water on the Moon, verified by 
NASA in 2009. The discovery of water on the Moon is a game changer, not 
just for the economic viability of lunar resources, but for the 
economics of reaching Mars and other deep space destinations.
    Water is the oil of the solar system, and the Moon will become a 
way-station in the sky. With private sector interest emerging in 
economic activity outside of traditional Earth orbit, the question of 
how the U.S. will enable and protect its national interests and non-
governmental players is now timely and serious.
`Mission Approval' for the 1st Private Venture to the Moon
    To date, all spacecraft that have ventured beyond Earth orbit on 
pre-authorized missions have been government spacecraft, and therefore 
were de-facto compliant with the Outer Space Treaty's (OST) Article VI 
requiring government authorization and supervision. The U.S. has always 
believed that the private sector would be a growing part of our 
national space enterprise, and U.S. negotiators of the OST insisted on 
recognition for non-governmental actors in space. In its `Mission 
Approval' framework, Moon Express recognized the requirement to comply 
with the treaty's framework as a U.S. company, and is honoring that 
commitment while pursuing a vital commercial role in our human space 
future.
    Following the welcome enactment of the Space Resource Exploration 
and Utilization Act of 2015, we weighed the risks of seeking funding 
from investors for the final development and maiden launch of our first 
spacecraft with one critical question unanswered: would the U.S. 
Government actually give us permission to fly? In early 2016, after 
visiting a number of Federal agencies involved in the interagency 
review of launch licenses, it became clear that although any of the 
agencies could potentially say ``no'', no one agency had the 
independent authority to say ``yes''. We needed certainty to attract 
further funding from our investors, within a timeline desired by our 
customers, so we began seeking an answer.
    In the absence of any prescribed process or clarity of regulatory 
authority, we proposed a `Mission Approval' framework, intended as an 
interim `patch', that built on the existing payload review process of 
the Federal Aviation Administration Office of Commercial Space 
Transportation (FAA/AST) with a series of additional `voluntary 
disclosures' intended to help satisfy U.S. obligations under the OST. 
We worked independently with all stakeholder Federal agencies, who in 
turn worked collaboratively and creatively to find a way to approve our 
ad hoc approach, even as Congress and the Administration determine a 
more formal framework.
    As a result of our initiative and the Federal agency efforts, on 
July 20th, 2016, Moon Express became the first commercial entity to 
receive formal U.S. Government approval to send a robotic spacecraft 
beyond traditional Earth orbit and to the Moon. This was in fact the 
first time in history that any government signatory to the Outer Space 
Treaty exercised its rights and obligations to formally authorize and 
supervise a commercial entity to fly a mission beyond Earth orbit. So 
let us be clear: for our `Mission Approval', the United States 
government has more than complied with Article VI. But let's also be 
clear that what we received was qualified as a ``one-time only'' 
authorization, because it was made clear to us that the positive 
determination does not extend to future missions by Moon Express or 
similar missions from other entities. We are therefore still contending 
with regulatory uncertainty for future missions.
    We can only be thankful for the efforts of the FAA's Office of the 
Associate Administrator for Commercial Space Transportation, and in 
particular George Nield, Shana Dale and Laura Montgomery, who 
championed our `Mission Approval' application through an enhanced 
payload review process. Aided in particular by the concerted 
interagency efforts of Tom Kalil and Ben Roberts at the White House 
Office of Science and Technology Policy, Brian Israel and Ken Hodgkins 
at the State Department, Robin Frank at NASA, Doug Loverro at the 
Department of Defense, and many others who worked with them or at other 
agencies, we were able to secure a consensus approval, communicated to 
us by the FAA Office of Commercial Space Transportation, so Moon 
Express could move forward with our mission plans. Equally as 
important, this approval allowed us to solidify our private financing 
which had been hampered by the uncertainty regarding Federal permission 
to undertake our mission.
The Mission Approval as Precedent for a Future Regime
    In 1983 Congress began the long effort to craft and enact the 
Commercial Space Launch Act of 1984, which gave the Department of 
Transportation sufficient authority to become a one-stop shop for 
launch licensing. Three decades later, this committee helped write the 
Commercial Space Launch Competitiveness Act, which directed the 
previous administration to propose a long-term solution to authorizing 
and supervising commercial space ventures beyond launch, 
telecommunications, and remote sensing.
    The effort for our `Mission Approval' came at a huge cost of 
company executives' time and expense, triggered exhaustive interagency 
deliberations, and delayed our fundraising and our mission. We're glad 
we were able to do this, but it wasn't an easy path and we were never 
assured success. To some extent we believe our `Mission Approval' 
framework was accepted because we were proposing a fairly simple, 
short-duration mission. Lacking any further Federal clarification of 
approval process, we plan to use our `Mission Approval' framework 
again, and we need to be able to use it again soon, as we have follow-
on lunar missions already in the works for 2019 and 2020. We are 
hopeful that the Congress and Administration, in consultation with 
industry, can apply principles like those we based our approach on to 
craft a more permanent system for companies like us, and the many 
companies that are yet to be born who will join us in expanding U.S. 
commercial space activity to the Moon and beyond.
Supporting a Regulatory Framework with Minimal Burden and Maximum 
        Certainty
    We support a process that focuses and streamlines the regulatory 
framework, limits the government's role to a light touch, promotes 
American innovation and investment, and satisfies our international 
obligations. We believe this could be accomplished with a ``presumed 
authorization within predefined boundary conditions'' approach to non-
traditional commercial space activities beyond Earth orbit.
    In essence we believe that a commercial space activity should enjoy 
``deemed authorization'' unless there is a clearly evident or 
meaningful demonstrable impact on national security, U.S. obligations 
under international treaties, or harmful interference with others.
    Our premise is that the U.S. Government should in principle enact 
laws that assure freedom of enterprise in space, making it illegal for 
the government to deny or restrict private sector space activity, 
provided the activity satisfies three fundamental axioms that should be 
the foundations of any U.S. policy governing non-traditional space 
missions in or beyond Earth orbit:

  (1)  no meaningfully demonstrable negative impact on national 
        security

  (2)  no harmful interference with existing space infrastructure or 
        activities

  (3)  does not breach U.S. obligations under international treaties

    And otherwise, whatever Federal body that is in charge of the 
application/registration has no legal right to object to it. In other 
words, it is ``presumed authorized within predefined boundary 
conditions'', and only if those boundary conditions are shown to be 
violated would the application go to an interagency 'secondary review' 
cycle in which the onus would be on the government to prove that the 
boundary conditions are breached in order to deny the application/
registration, accompanied by a proposed enabling solution, which then 
would be subject to revision, appeal, etc. We also suggest that a 
legally binding time-frame would be imposed on both the first and 
secondary reviews, after which the presumed authorization would 
prevail.
Public-Private Partnerships
    One of the reasons it is vital for the U.S. Government to create 
policy clarity and streamline regulatory burdens for commercial lunar 
and other nontraditional space business ventures is because in almost 
every case, some Federal agency is likely to want to directly or 
indirectly purchase a space good or service from these companies.
    In our case, we have benefitted from many Space Act Agreements with 
NASA which allowed us to learn from the agency and jointly develop new 
capabilities based on historic ones. Most of our early Space Act 
Agreements with NASA involved us paying NASA for access to technologies 
and facilities, but that has evolved in recent years into the use of 
no-exchange of funds Space Act Agreements that involve mutual value. In 
particular, NASA's Lunar Cargo Transportation and Landing by Soft 
Touchdown (Lunar CATALYST) program has provided us significant access 
to NASA technologies, facilities, and expertise that is accelerating 
our initial mission. The reason NASA is doing this is because they need 
less expensive ways to conduct robotic lunar exploration and seek to 
spur commercial cargo transportation capabilities to the surface of the 
Moon with competitively selected industry partners.
    Over the years NASA has funded many existing ``orphan'' payloads 
from U.S. scientists that need a ride into lunar orbit or to the 
surface. Recent U.S., Indian, Japanese, and Chinese missions to the 
Moon have only wetted the appetite of lunar scientists. Given NASA's 
primary focus on Mars exploration, it is not likely that NASA will send 
another large dedicated spacecraft to the Moon, but it could purchase 
rides from commercial providers such as Moon Express.
    We are therefore particularly happy about recent announcements by 
NASA of potential interest in commercially-provided robotic systems for 
science and exploration investigations of the Moon. Extending the 
public-private partnership model of commercial transportation services 
beyond Earth orbit will enable new growth in U.S. industrial capacity 
and capability while introducing the economics of private sector 
competitive innovation to deep space and planetary exploration.
    As Moon Express' capabilities grow, we can bring back samples from 
geologically interesting lunar sites. Eventually, as we grow to begin 
to harvest lunar water ice and turn it into liquid hydrogen and oxygen 
for propellant and commercial uses, one of the largest customers may be 
NASA's human missions to Mars. If NASA (or another agency) wishes to 
accelerate a specific capability on our roadmap, then a public-private 
partnership such as that used so effectively on cargo resupply o the 
International Space Station could deliver results much sooner and 
cheaper than a traditional contracting approach.
    Public-private partnerships are much more fundamental to the U.S. 
Government's goals in space than just serving as a more efficient 
procurement method. NASA's organic law mandates that the agency 
``promote the fullest commercial use of space''. The vision that 
Chairman Cruz has set for these hearings is one of the government 
opening the space frontier to commerce and settlement by private 
citizens. Therefore, whereas a traditional procurement may or may not 
develop technologies with some potential commercial application, a 
public-private partnership fosters the emergence of privately-owned, 
largely privately-capitalized space goods and services providers who 
can and will seek out new markets beyond government customers. That 
economic infrastructure which grows out from the government's legal and 
regulatory framework and limited public sector investments is what 
promises our broader society a hopeful future as our Nation leads the 
expansion of humanity into space.
    Therefore, creating the right policy environment is vital to 
achieving the full strategic benefits of American leadership on the 
space frontier. Our nation's entrepreneurs and engineers, students and 
scientists, teachers and tourists will follow NASA's pioneering steps 
into the solar system carrying American civilization with them.
    The U.S. Government needs to create a framework that allows and 
encourages U.S. enterprise to invest in utilizing these lunar 
resources, or other nations will do so.
American Preference
    One concern that has emerged in America's leadership on the space 
frontier is that NASA has typically tended to use international 
partnerships with other space agencies more than domestic public-
private partnerships to carry out science missions. While Moon Express 
certainly supports the national security and foreign policy benefits to 
the U.S. from such cooperative scientific projects, it is important for 
policymakers to realize that these international efforts can preclude 
American commercial participation.
    For example, if NASA spends its dollars on helping another nation 
learn how to land a spacecraft on the Moon, including the provision of 
hardware and launch services for the mission, instead of buying a ride 
from a commercial provider, then it is arguably subsidizing the 
creation of a foreign capability, while not utilizing a nascent or 
extent domestic commercial service. This choice is not a simple matter 
of ``domestic preference'' versus international diplomatic benefits, 
but one of pursuing space goals that are more relevant to U.S. 
commercial providers via public-private partnerships, while more 
advanced or purely scientific projects can be internationalized.
The Big Picture
    So far, modern humans have been resident on Earth for a few 
thousandths of a percent of our planet's lifetime; a microscopic sliver 
of planetary history. Civilization as we know it has been around a 100 
times less than that. In the last few frames of our planetary cinema, 
barely a subliminal flicker, the first artifacts of a technological 
civilization have left the atmosphere and can be found on our 
neighboring worlds. Some farther than that. If the story of humanity 
ended tomorrow, by natural or self-inflicted calamity, these 
extraterrestrial human artifacts might be the only remaining evidence 
that there was an emergent spacefaring species on the third rock from 
the Sun.
    The key to our survival as a species, in fact the only key we hold 
in the long term, is to evolve into a multi-world species, harnessing 
the practically infinite energy and resources of space and easing the 
pressure on our planet.
    Space is vast, and if we lived on a planet isolated like an island 
in an empty ocean, it would be very hard to develop space resources. 
But luckily, we are an archipelago with a sister world containing 
resources we can utilize. The Moon; our eighth continent, rich in 
resources, the gateway to the solar system, is also the gateway to our 
future.
    Preservation of the Earth and our civilization is precisely the 
reason we need to expand our economic and societal sphere into space, 
beginning with the Moon and then beyond.
    Sixty years ago we began our journey as a spacefaring species. We 
need to get a toe-hold back on the Moon, and this time not let go. Moon 
Express is dedicated to exploring and unlocking the resources of the 
Moon for the benefit of humanity. We're undertaking this goal with 
private investment, not on the backs of the taxpayer. The risk is ours. 
The rewards will become available to everyone. We will conduct 
ourselves responsibly and with respect to national and international 
laws. We will avidly support science and exploration of the Moon as we 
seek water and minerals. But we're going. And we're thrilled to have 
the laws of the United States protecting our activities and backing our 
efforts to find new resources that could one day help the economies of 
planet Earth and secure our future in space.
    It's not just about boldly going; it's about boldly staying. It's 
about moving the economic sphere of Earth outward in a way that uses 
the material wealth of space to solve the urgent problems we now face 
on Earth: to bring the poverty-stricken segments of the world up to a 
decent living standard, without recourse to war or punitive action 
against those already in material comfort; to provide for a maturing 
civilization the basic energy vital to its survival . . . through 
freedom of commerce in space.
    We are at the cusp of a magnificent adventure, an evolution of our 
species perhaps as significant as the evolution of life from the oceans 
onto land. Our emergence from Earth into space holds promise and 
opportunity, but also dangers of migrating conflict, and for the first 
time in human history, an opportunity to conquer a new world without 
conquering each other.
    The United States has taken proactive measures to support its 
private sector and has interpreted the Outer Space Treaty in favorable 
ways to the Constitution and founding principles. While the Outer Space 
Treaty may appear antiquated in some ways, it is a remarkably visionary 
document with profound principles that have served the world well for 
decades. I believe time and energy is better spent in continuing to 
interpret the Outer Space Treaty in favor of international 
collaboration without constraining the rights and benefits of the 
freedom of U.S. commercial enterprise in space.
    We aspire to the stars. Mars beckons as a second home for humanity. 
The Moon is our gateway.
    Thank you for your time and the opportunity to present this 
testimony.

    Senator Cruz. Thank you, Dr. Richards, and I appreciated 
your invocation of the mission statement to boldly go where no 
one has gone before, or perhaps the most famous split 
infinitive in all of history.
    [Laughter.]
    Senator Cruz. Mr. Marquez.

     STATEMENT OF PETER MARQUEZ, VICE PRESIDENT FOR GLOBAL 
                ENGAGEMENT, PLANETARY RESOURCES

    Mr. Marquez. Chairman Cruz, Ranking Member Markey, thank 
you very much for the opportunity to come here today and talk 
about the Outer Space Treaty. I especially want to thank you 
and your staff also for the 2015 passage of the CSLCA. It was a 
tremendous event for this community, so thank you.
    I come here today representing a multinational asteroid 
mining company, Planetary Resources. We exist to extract and 
utilize resources from asteroids that are needed for humanity 
to create a truly universal space economy, have a permanent 
presence in the solar system, and increase the quality of life 
for all people living on Earth.
    We'll harvest water from asteroids to be used as fuel for 
spacecraft and satellites, as life support for a space 
workforce, as radiation shielding, and to grow food. We'll 
extract metal, which will, in turn, be 3-D printed so that we 
can construct nearly anything in space or any component needed; 
and we'll provide the fuel and raw materials needed for any 
long-term, sustainable, and scalable mission to the Moon, Mars, 
and beyond. In the long term, we will bring back extremely 
scarce resources, like platinum group metals, to the Earth to 
increase the quality of life for everybody.
    We'll continue to build upon the great successes that we've 
had so far. In 2015, our company began the asteroid mining age 
when we launched our first technology demonstration satellite. 
In 2016, we used materials from a meteorite to 3-D print the 
first object 3-D printed from outer space material. We've built 
two follow-on satellites that will be launched soon, and in 
2020, we will launch and operate the first ever private deep 
space mission. We will also conduct an unprecedented mission to 
visit, survey, and prospect several near-Earth asteroids.
    Our team that we have is an example of, I think, many of 
the commercial space companies here now. Our engineers helped 
design, build, and operate a variety of Mars missions to 
include all the recent landers and rovers. We have a staff that 
comes from a variety of industries, from mining to 
semiconductors to planetary science to agriculture to the 
automotive industry to the IT community and many more. And 
despite what Mr. Schaefer said, we do have a pretty good law 
and policy team on staff, too, coming from the State 
Department, the United Nations, the White House, and the 
national security community.
    For Planetary Resources to accomplish this mission, we need 
stability and predictability. This nation has a history of not 
only supporting commercial space activities, but leading and 
implementing the international legal structure that created 
that stable and predictable space environment.
    During the early negotiations of what would become the 
Outer Space Treaty, the U.S. actually fought to include 
commercial space activities because they believed it would be 
important. On the other side of the argument was the Soviet 
Union, which sought to have those operations limited to 
governments only. If the U.S. had not promoted those principles 
early on, I would not be here, my fellow panelists would not be 
here, there would be no Blue Origin, there would be no Virgin 
Galactic, no XPrize, and none of the other hundreds of small 
businesses that support this community across the country.
    This U.S. national space policy was founded on these 
principles. Indeed, the principles from President Eisenhower on 
have become the foundation of our international legal 
environment and the Outer Space Treaty, principles that we as a 
nation have held since the dawn of the space age and that 
enabled the various space commercial capabilities that we have 
now. The treaty has proven to be a flexible foundation for 
those activities. Indeed, one of the keys to the treaty's 
enduring relevance is that the framers did not attempt to 
regulate specific activities. To do so, or today, for that 
matter, would be a recipe for obsolescence. Instead, the treaty 
establishes foundational principles.
    There are now active discussions in the international 
community about how to interpret and apply the OST to these 
unprecedented activities. The U.S. comes to these negotiations 
from a position of strength. For one, the U.S. played a leading 
role in the treaty's formation, as I said, and it is this 
unbroken consistency of the U.S.'s interpretation of the treaty 
and application of the treaty for more than 50 years and across 
the past 12 Presidential administrations that is key to our 
credibility in this process.
    For our company, the value of the international legal 
framework is clear. Without it, we'd be trying to operate in a 
reality without rules--chaos and anarchy. However, the treaty 
must be meaningful and responsive, and in order to do that, we 
will need the appropriately interpreted and implemented 
national legislation. As I mentioned before, the CSLCA is an 
excellent example of how to build upon the foundation of the 
Outer Space Treaty with national law.
    None of this is to say the treaty is perfect or that it's 
complete or that Congress' work is complete. We are concerned, 
however, that opening up the treaty will leave our industry 
worse off and will overall be to the detriment of national and 
international security. And as a brief aside, I would say that 
it's worth noting that many of the principles and motivations 
espoused in the early U.S. negotiations and garnering support 
of the Outer Space Treaty were to protect national and 
international security. Again, in my previous occupations, I'd 
be remiss in not mentioning the purpose of many of these 
things.
    My strong recommendation is that we continue to build upon 
the Outer Space Treaty with strong national legislation, and 
with strong national legislation and international 
collaboration, our commercial space industry will continue to 
thrive and innovate to broaden our horizons, add to our 
knowledge, and improve our way of living on Earth.
    Thank you, Mr. Chairman.
    [The prepared statement of Mr. Marquez follows:]

Prepared Statement Peter Marquez, Vice President for Global Engagement, 
                          Planetary Resources
    Chairman Cruz, Ranking Member Markey, and members of the 
Subcommittee, thank you for the opportunity to provide comments on the 
vital role of the Outer Space Treaty to our growing space industry.
    I represent a multi-national asteroid mining company. Planetary 
Resources exists to extract and utilize resources on asteroids that are 
needed for humanity to; create a truly universal space economy, have a 
permanent presence in the Solar System, and increase the quality of 
life for all people living on Earth. Planetary Resources began the age 
of asteroid mining in 2015 when we launched the first asteroid mining 
technology demonstration satellite. We have built two follow-on 
satellites that are currently awaiting launch. In 2020, we will launch 
and operate the first-ever private deep-space mission where we will 
also conduct a historic and unprecedented mission to visit, survey and 
prospect several near-Earth asteroids.
What we do
    Our business is to provide resources for people and the products 
they will need in space.

   We will provide fuel and raw materials that will be integral 
        to any long-term, sustainable and scalable missions to the 
        Moon, Mars, and beyond.

   We will harvest water from asteroids to be used as fuel for 
        spacecraft and satellites, life support for a space workforce, 
        radiation shielding, and to grow food.

   We will extract metal which will, in turn, be 3-D printed 
        into nearly any structure or component needed in space.

    Our near-term initiatives are providing fuel to launch providers 
for refueling their rockets in space with liquid hydrogen and oxygen we 
extract from asteroids. The refueling of rockets in space allows for 
significant reductions in launch costs and increased payload capacity 
for missions to the Moon and Mars. For example, our analysis shows 
cases where refueling a rocket on a Mars mission can decrease the cost 
of launching a payload from roughly $40MM per metric ton down to $11MM 
per metric ton while simultaneously increasing the maximum payload 
capacity from about 3 metric tons to 26 metric tons. Long-term and 
permanent exploration is infeasible without space resource utilization.
    Longer-term, platinum group metals are also one of our key targets. 
They are extremely rare on Earth but in nearly limitless supply on 
asteroids. For example, a single 500-meter platinum rich asteroid 
contains 175 times the global annual output of platinum or 1.5 times 
the known global platinum reserves. Our activities will make these 
previous scarce resources ubiquitous and increase the quality of life 
for all humanity.
The Context
    Less than a decade ago, asteroid mining was still relegated to 
science fiction novels or movies. In the span of the past few years we 
have been able to harness a confluence of technical development, 
increasing scientific knowledge, and reductions in costs to move 
asteroid mining from fiction to reality. But there is still much to 
learn and do.
    The position we find ourselves in today regarding asteroid mining 
is not much different than the situation our predecessors found 
themselves in over 50 years ago. Many of the technologies that would 
define the space age were still in development and there was 
uncertainty as to how space activities would evolve. The U.S. had a 
firm position that private activities would play a key role in the 
future of space. The Soviet Union, on the other hand, sought to have 
space operations limited to Governments. If the U.S. had not promoted 
commercial space activities in the 1960s I would not be here today, my 
fellow witnesses would not be here, there would be no Blue Origin, no 
SpaceX, no Virgin Galactic, no XPrize, and none of the hundreds of 
small businesses that support our commercial space industry would 
exist.
    Today, we find ourselves in a time of opportunity. The breadth of 
space activities, and the services they provide to people in space and 
on Earth, is growing exponentially. This period of unprecedented space 
expansion is a product of the stability that we have had in space since 
the launch of Sputnik in 1957. Despite global tensions, space has 
remained a realm of peace and predictability. That stability, in no 
small part, has been assured by the tenets of the Outer Space Treaty. 
Through the development of a common agreement with the international 
community the foundational precepts of the Treaty have keep the space 
domain safe, stable and sustainable for 50 years.
The Value of the Foundations of the Space Legal Regime
    For Planetary Resources to accomplish our mission, we need such 
stability and predictability, not only in space but also in the 
domestic and international legal landscapes. This Nation has a history 
of not only supporting commercial space activities but leading and 
implementing the international legal structure that allowed it to exist 
in the first place.
    The U.S. National Space Policy was founded on these legal 
principles. Indeed, every President since Eisenhower has espoused the 
same principles for space exploration and utilization which, in turn, 
became the foundation of our international legal environment and the 
Outer Space Treaty.
    Given its central role in assuring peace and stability in space, 
our success relies very much on the Outer Space Treaty. The consistent 
interpretation and application of the Treaty by the U.S. Government 
provides a predictable environment in which we can flourish. Since the 
dawn of the space age, as new technologies and capabilities have 
arisen, the Treaty has proven to be a flexible foundation for space 
activities. Indeed, one of the keys to the Treaty's enduring relevance 
is that its framers did not attempt to regulate specific space 
activities. To do so then--or today, for that matter--would be a recipe 
for obsolescence. Instead, the Treaty establishes certain foundational 
principles, and a basic legal framework within which space activities 
have been addressed through dialogue among States and implementing 
legislation by national legislatures.
    Perhaps the most crucial dimension of the Outer Space Treaty for 
our company is the Treaty's enabling framework for space resource 
utilization. At this moment in time, as Planetary Resources brings 
utilization of asteroid resources ever closer to humanity's reach, 
there are active discussions in the international community about how 
to interpret and apply the Outer Space Treaty to these historic 
activities. The United States comes to these negotiations from a 
position of strength. For one, the U.S. Government played a leading 
role in the Treaty's formation. Yet it is the unbroken consistency of 
the United States' interpretation of the Treaty, over fifty years and 
across the past twelve Presidential administrations, that is the key to 
our credibility in this process.
The Importance of Domestic Legislation in the Context of the OST
    For Planetary Resources, the value of the international legal 
framework for space is clear--without it we would be trying to operate 
in an anarchic reality. However, for that regime to be meaningful and 
responsive to the advancement and expansion of space technologies, its 
tenets must be appropriately interpreted and implemented by effective 
national legislation.
    Relevant to space resources, the United States has Title IV of the 
Commercial Space Launch and Competitiveness Act (CSLCA) which 
recognizes the legal right to own resources extracted from asteroids, 
in full accordance with international law. Planetary Resources strongly 
thanks the Senate, and specifically, this Committee's Members and staff 
in developing and passing this law.
    The leadership of the U.S. Government, nationally and 
internationally, and the steadfast support to commercial space 
activities created technological advances that increased our scientific 
knowledge, economic prosperity, and international security. That 
support continues today as evidenced by this hearing today and the 
Committee's continued strong interest in nurturing this industry that 
is critical to both national security and economic competiveness.
    The Space Resource Utilization Act of 2015 is an excellent example 
of the ways the Congress can support innovative, new commercial space 
activities by building atop the Outer Space Treaty's basic foundation. 
We are confident that U.S. diplomats, strengthened by the United 
States' unmatched consistency in interpreting the Treaty, will continue 
to engage with the international community and find common direction on 
the interpretation of the Treaty in a manner that promotes innovative, 
ground-breaking commercial space activities.
Conclusion
    Internationally, the 1967 Outer Space Treaty is the backbone of the 
stability and predictability of not only the legal landscape, but space 
operations themselves. Article VI ensures that all operators, public or 
private, from all countries, operate according to a common set of basic 
rules. This legal level playing field for all spacefarers is allowing 
new space industry to flourish across the globe.
    Planetary Resources is proud to be part of one of those new 
industries. Utilizing asteroid resources fundamentally changes our 
ability to operate in space. Here in the United States, our large, and 
growing team, spans five states in addition to our presence in the 
Grand-Duchy of Luxembourg. Our investors are from all corners of the 
globe and our customers are on Earth and in space. This is an exciting 
time.
    Space is a global endeavor with profound national-level 
implications. We consider that the two legal pillars of a stable 
international legal regime agreed to by all global players, the Outer 
Space Treaty, coupled with effective domestic legislation that can be 
responsive to technological advancements, as typified by the 2015 CSLCA 
will allow us to effectively prosper, and will allow others to operate 
and compete on a level playing field.
    None of this is to say that the Treaty is perfect in every way, or 
that the Congress's work in enabling a robust and globally competitive 
commercial space sector is complete. We are concerned however, that 
opening up the Outer Space Treaty will leave our industry worse off and 
will, overall, be to the detriment of national and international 
security.
    We look forward to continued successful U.S. engagement with 
international partners to interpret and apply the Outer Space Treaty to 
evolving circumstances, and the continued support of the Congress in 
developing timely domestic legislation to support space technology 
developments.
    Our simple message is that our focus should continue to be building 
upon the foundation of the Outer Space Treaty, rather than putting that 
foundation at risk.
    I thank you Mr. Chairman.

    Senator Cruz. Thank you, Mr. Marquez.
    Mr. Gold.

            STATEMENT OF MIKE GOLD, VICE PRESIDENT,

        WASHINGTON OPERATIONS AND BUSINESS DEVELOPMENT,

                      SPACE SYSTEMS LORAL

    Mr. Gold. Thank you Chairman Cruz, Ranking Member Markey, 
and the dedicated Subcommittee staff for this opportunity to 
discuss the Outer Space Treaty's impact on American commerce 
and settlement in space.
    I serve as Vice President of Washington Operations and 
Business Development for Space Systems Loral, or SSL. SSL is 
America's most prolific commercial satellite manufacturer. Over 
80 satellites built by SSL are currently in orbit and providing 
coverage to the entire populated surface of the Earth. SSL is 
also a global leader in space-based robotics, advanced 
propulsion, as well as data extraction and analytics.
    There has never been a more exciting time to be in the 
space industry. Asteroid mining, space tourism, private sector 
space stations, and commercial lunar rovers are all 
transitioning from science fiction to reality. We are living in 
an age of wonders.
    Like every other space activity, satellite operations may 
be transformed by new ideas and technologies. For example, the 
operational lifetime of satellites is nearly always limited by 
their fuel supply. This can and will change. Via the Restore-L 
program, SSL and NASA are developing robotic LEO spacecraft 
that will rendezvous with and refuel satellites. If the 
Restore-L mission is successful, it could fundamentally alter 
the nature of satellite operations while providing the U.S. 
with a vital technological advantage.
    Moreover, SSL was selected by DARPA to support the Robotic 
Servicing of Geosynchronous Satellites, or RSGS program. RSGS, 
an innovative public-private partnership between DARPA and SSL, 
will produce a robotic servicing vehicle that can repair 
satellites in orbit as well as replace or add new components to 
a satellite. Per DARPA's participation in RSGS, satellite 
servicing would not only bolster job creation and enhance 
American competitiveness, but such capabilities will be 
critical for national security.
    During testimony before the Senate Select Committee on 
Intelligence earlier this month, Dan Coats, the Director of 
National Intelligence, stressed that China and Russia are 
developing directed energy weapons, missiles, and robotic 
spacecraft capable of disabling American satellites in both LEO 
and GEO. Restore-L, RSGS, and satellite servicing in general 
will substantially bolster the security and resiliency of 
America's vital orbital assets, while supporting domestic high-
tech job creation and commercial innovation.
    However, satellite servicing and all other forms of new 
space activities need funding, and what investors are looking 
for is a legal regime that offers certainty, transparency, and 
efficiency. Article VI of the Outer Space Treaty requires 
nations to provide authorization and continuing supervision of 
their private sector space activities. This Treaty obligation 
actually aligns with the desire of investors for regulatory 
certainty. Investors and insurers need to know that relevant 
Federal departments and agencies, particularly the Department 
of Defense, the Department of State, and NASA, will not object 
to their proposed activities.
    Unfortunately, there is no established process for the 
Federal Government to provide entrepreneurs with this 
regulatory reassurance. Currently, companies, including SSL, 
are bringing their innovative space activities to the FAA 
Office of Commercial Space Transportation, or FAA AST. The FAA 
AST conducts an interagency review and subsequently has 
provided companies with what is called a payload approval 
letter.
    The simplest, least bureaucratic, and most expeditious 
means of addressing not only Article VI, but providing 
entrepreneurs with the predictability that they desire is for 
Congress to direct the FAA AST to establish an enhanced payload 
review process that would leverage and formalize the work that 
the AST is already successfully conducting. Additionally, when 
such payload review approvals are issued, they should contain a 
proviso requiring that if substantive changes occur, the 
private sector applicant will update the FAA AST. This simple 
proviso, in conjunction with the enhanced payload review 
process, would be sufficient to meet Article VI's authorization 
and continuing supervision requirement.
    Even with any Article VI concerns fully resolved, the Outer 
Space Treaty still contains a variety of clauses and provisions 
that are vague or challenging for private sector operations, 
such as Article II and Article XII. Despite these challenges, 
it would still be ill-advised for the U.S. to withdraw from the 
Treaty or open it up to revisions. Although the Treaty is 
imperfect, due to its focus on principles instead of 
prescriptive requirements, it has largely stood the test of 
time.
    The Treaty has provided a foundation that international 
space law and public and private sector activities depend upon. 
If the U.S. pulled out of the Treaty, it would create confusion 
and uncertainty, hindering new commercial developments as well 
as established private sector space activities. Moreover, 
opening up the Treaty to amendments would risk the 
international community inserting even more language that would 
run counter to U.S. interests.
    Instead, the Department of State in cooperation with the 
private sector should engage with likeminded countries, 
particularly launching states, to establish bilateral and 
multilateral understandings regarding aspects of the Treaty 
that require additional clarity and interpretation. Again, 
predictability, efficiency, and transparency are the key values 
necessary for a successful legal regime. If Congress can do its 
part and provide entrepreneurs with the regulatory certainty 
that they need, we can all start spending less time with 
lawyers and more time on launches.
    Thank you for this opportunity.
    [The prepared statement of Mr. Gold follows:]

Prepared Statement of Mike Gold, Vice President, Washington Operations 
             and Business Development, Space Systems Loral
    Thank you Chairman Cruz, Ranking Member Markey, distinguished 
members of the Subcommittee, as well as the Subcommittee's dedicated 
and hardworking staff, for this opportunity to discuss the Treaty on 
Principles Governing the Activities of States in the Exploration and 
Use of Outer Space, including the Moon and Other Celestial Bodies, 
commonly referred to as the Outer Space Treaty (``OST'' or the 
``Treaty''). My name is Mike Gold and I am Vice President of Washington 
Operations and Business Development for Space Systems Loral (``SSL'').
    SSL is America's most prolific commercial communications satellite 
manufacturer. Over eighty satellites built by SSL are currently in 
orbit providing services to the entire populated surface of the Earth. 
Billions of people depend upon satellites manufactured by SSL every 
day. Moreover, SSL is a trailblazer in space-based robotics, supporting 
a variety of innovative projects with both the National Aeronautics and 
Space Administration (``NASA'') and the Defense Advanced Research 
Projects Agency (``DARPA''). SSL is also a global leader in space-based 
propulsion, leveraging highly reliable and robust systems such as the 
1300 bus, a proven workhorse, while advancing the state of the art with 
new solar electric propulsion technologies. Earth observation and other 
types of satellites are generating an ever-increasing volume of data 
that can be leveraged for national security, commerce, and science. SSL 
and its affiliated companies have decades of experience extracting 
useful information from data through advanced image and signal 
processing as well as change detection. SSL provides customers with 
complete end-to-end services from satellite manufacturing to data 
analysis.
    SSL employs thousands of engineers, scientists, and technicians 
across the country, and has been a leader in `commercial space' over 
many decades. For SSL, and the American commercial space industry as a 
whole, to continue to survive and thrive, a regulatory environment that 
is conducive to innovation as well as private sector operations and 
growth is vital. The OST, which forms the foundation of global space 
law, addresses a wide variety of issues and activities. However, the 
most relevant portion of the Treaty, which requires immediate action 
from policymakers, relates to Article VI.
I. ``Continuing Supervision'' Under Article VI of the Outer Space 
        Treaty
    Article VI of the Outer Space Treaty states in relevant part:

        ``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.'' (emphasis added)

    Authorization and continuing supervision for established commercial 
space activities, such as telecommunications or remote sensing, are 
currently conducted by, respectively, the Federal Communications 
Commission (``FCC'') and the National Oceanic and Atmospheric 
Administration (``NOAA''). However, there is no established process for 
the United States Government (``USG'') to authorize or supervise new, 
innovative commercial space activities.
    There has never been a more exciting time to be in the commercial 
space world. Private sector space stations, space tourism, asteroid 
mining, and commercial lunar rovers are all transitioning from science 
fiction to reality. American entrepreneurs are leading the way into 
this new frontier, and we are still at the very beginning of what is 
certain to be an era of great change and progress. Like every other 
space activity, the satellite industry could be transformed by new 
technologies and concepts. Specifically, the introduction of robotic 
satellite servicing in low Earth orbit (``LEO''), as well as in 
geosynchronous orbit (``GEO''), may substantially alter the industry's 
existing paradigm.
A. The Importance of Satellite Servicing
    SSL is currently supporting two innovative satellite servicing 
activities, NASA's Restore-L and DARPA's Robotic Servicing of 
Geosynchronous Satellites (``RSGS''). The Restore-L mission is focused 
on a robotic spacecraft refueling Landsat-7 (a NASA remote sensing 
satellite). SSL satellites are built to last and their operational 
lifetimes are nearly always limited due to a lack of fuel. Via Restore-
L, NASA and SSL will demonstrate the ability to overcome this challenge 
by delivering fuel to satellites, substantially extending their 
lifetimes.
    DARPA's RSGS program will focus on repairing satellites as well as 
adding and replacing satellite components. Fixing a satellite that has 
failed to deploy properly would save American taxpayers hundreds of 
millions of dollars. Moreover, the ability to add and/or replace 
various components will substantially bolster satellite capabilities, 
ensuring that regardless of when a satellite is launched, it can still 
take advantage of new technologies. This ability to add components 
could also be used to attach payloads that will enable a satellite to 
protect itself from tampering or attacks.
    RSGS and Restore-L are complimentary activities, each focused on 
unique technological proficiencies, although both systems will be 
capable of conducting such operations as satellite inspection and 
refueling. However, RSGS and Restore-L will operate in two very 
different environments. Restore-L will be placed in a LEO Polar orbit 
where it will circle the Earth approximately fourteen times per day. 
Restore-L will use Tracking and Data Relay Satellite Systems 
(``TDRSS'') for communications and will serve as a testbed for 
advancing critical space-based robotics and automation to support 
future human spaceflight and robotic exploration missions. RSGS will 
operate in GEO, where it will orbit the Earth only once per day and 
will utilize ground-based communications systems. The primary objective 
of RSGS is to enhance the security and resiliency of military 
satellites while evolving the state of the art in defense-related 
robotics.
    Per DARPA's support of RSGS, mastering satellite servicing is 
critical to national security. Earlier this month, Daniel Coats, 
Director of National Intelligence (``DNI''), made the following 
statements for the record to the Senate Select Committee on 
Intelligence.

        ``We assess that Russia and China perceive a need to offset any 
        U.S. military advantage derived from military, civil, or 
        commercial space systems and are increasingly considering 
        attacks against satellite systems as part of their future 
        warfare doctrine. Both will continue to pursue a full range of 
        anti-satellite (ASAT) weapons as a means to reduce U.S. 
        military effectiveness. In late 2015, China established a new 
        service--the PLA Strategic Support Force--probably to improve 
        oversight and command of Beijing's growing military interests 
        in space and cyberspace. . . . Some new Russian and Chinese 
        ASAT weapons, including destructive systems, will probably 
        complete development in the next several years. Russian 
        military strategists likely view counterspace weapons as an 
        integral part of broader aerospace defense rearmament and are 
        very likely pursuing a diverse suite of capabilities to affect 
        satellites in all orbital regimes. Russian lawmakers have 
        promoted military pursuit of ASAT missiles to strike low-Earth 
        orbiting satellites, and Russia is testing such a weapon for 
        eventual deployment. A Russian official also acknowledged 
        development of an aircraft-launched missile capable of 
        destroying satellites in low-Earth orbit. Ten years after China 
        intercepted one of its own satellites in low-Earth orbit, its 
        ground-launched ASAT missiles might be nearing operational 
        service within the PLA. Both countries are advancing directed 
        energy weapons technologies for the purpose of fielding ASAT 
        systems that could blind or damage sensitive space-based 
        optical sensors. Russia is developing an airborne laser weapon 
        for use against U.S. satellites. Russia and China continue to 
        conduct sophisticated on-orbit satellite activities, such as 
        rendezvous and proximity operations, at least some of which are 
        likely intended to test dual-use technologies with inherent 
        counterspace functionality. For instance, space robotic 
        technology research for satellite servicing and debris-removal 
        might be used to damage satellites. Such missions will pose a 
        particular challenge in the future, complicating the U.S. 
        ability to characterize the space environment, decipher intent 
        of space activity, and provide advance threat warning.''

    As described by the DNI, potential adversaries are actively 
developing weapons to attack satellites in ``all orbital regimes'' 
while perfecting their own space-based robotics, rendezvous, and 
proximity capabilities. The U.S. cannot leave its critical orbital 
assets vulnerable to attack and the U.S. Government should be 
sponsoring additional follow-on programs to RSGS and Restore-L. 
Numerous missions will be needed to successfully develop and implement 
holistic satellite servicing proficiencies, ensuring that vital 
national security and economic assets in both LEO and GEO are properly 
protected.
    Moreover, while satellite servicing capabilities are vital, they 
are only the first step on the road to even more exciting technological 
developments, such as the deployment of persistent platforms. 
Currently, roughly eighty percent of an average GEO telecommunications 
satellite is comprised of propulsion, power generation, radiators, 
redundant parts, and other subsystems that keep the satellite flying 
and healthy. Only twenty percent of the mass of most satellites conduct 
the revenue generating activity.
    We need to reverse this paradigm and reduce the amount of 
infrastructure that each satellite requires. The persistent platform 
concept accomplishes this by deploying a truss in space, similar to 
what was done with the International Space Station. However, instead of 
accommodating astronauts and habitats, this truss would contain power 
generation, thermal controls, propulsion systems, and connection points 
for a dozen or more `plug and play' payloads. Robotic servicing systems 
developed via programs such as Restore-L and RSGS would deliver the 
payloads (that would support a wide variety of activities including 
communications, remote sensing, and space situational awareness) to the 
persistent platform for attachment. The payloads would share the 
platform's propulsion, power, and other capabilities, removing the cost 
and need to construct, launch, and support these systems and subsystems 
for each individual payload. Additionally, when a payload becomes 
obsolete or fails, the robotic servicing craft will switch out the old 
payload with a new one, providing the ability to refresh technology in 
a way that is impossible today. This persistent platform architecture 
will dramatically lower the cost of orbital operations while enhancing 
capabilities. Space Systems Loral is currently investing millions of 
its own dollars to further develop this next-generation strategy, which 
will play an important role in transforming not only commercial space 
operations, but national security and scientific missions as well.
B. The Challenge of Regulatory Uncertainty
    For satellite servicing, persistent platform, or any other 
technological advances to take place, funding is required. Investors 
that will finance such projects crave predictability, transparency, and 
efficiency. When a positive regulatory environment is aligned with 
technological growth, innovation flourishes. However, as described 
previously, there is no established USG process for providing 
authorization and continuing supervision of non-traditional space 
activities such as satellite servicing. This situation has already 
caused confusion and could ultimately lead to programmatic delays and 
forum shopping. Currently, the FAA Office of Commercial Space 
Transportation (``FAA AST'' or ``AST'') serves as the de facto Federal 
entity that companies have gone to for their innovative commercial 
activities. Bigelow Aerospace and, most recently, Moon Express, have 
leveraged the FAA AST's payload review process to obtain reassurance 
that their proposed lunar operations would not conflict with USG 
interests or activities. Due to the lack of an established process, 
both companies combined their payload review applications with 
voluntary disclosures to relevant Federal agencies and departments such 
as NASA, and the Departments of Defense and State, to support and 
expedite the interagency process. Although I believe that both Bigelow 
Aerospace and Moon Express were ultimately satisfied with the end 
result, officials at the FAA AST as well as the Departments of Defense 
and State, have repeatedly voiced concerns that the current ad hoc 
process is untenable and may result in negative payload reviews if 
Congress does not provide additional direction to clarify jurisdiction 
and establish relevant procedures.
    Entrepreneurs pursuing daring new concepts have helped to 
revitalize the American aerospace sector and will carry this Nation 
into the future. However, innovative commercial space activities 
require funding. Internal and external investors, as well as insurers, 
need to know what, if any, regulatory risks a particular project will 
face before financing an initiative. Therefore, the lack of a defined 
process for non-traditional space activities is anathema to investors 
and insurers alike. Non-traditional commercial space operations 
inherently involve many risks. Businesses and investors that are 
already embracing trailblazing activities should not be asked to also 
bear the added burden of regulatory uncertainty. The U.S.'s regulatory 
environment should encourage growth and investment, whereas the current 
lack of an established process creates yet another challenge for 
entrepreneurs to overcome. For example, the existing lack of defined 
deadlines, explicit areas for review, and transparency requirements all 
empower the bureaucracy while leaving companies with little to no 
recourse to gain the certainty they need to obtain funding and execute 
their business plans. Congress should take action with alacrity to 
address this challenge and remove a potentially problematic barrier to 
entry.
C. Enhanced Payload Reviews
    As noted previously, the FAA AST already has the authority to 
conduct payload reviews. Despite the lack of an established process, 
the AST has successfully executed these reviews for non-traditional 
commercial space activities. The AST has a great deal of experience 
conducting interagency reviews in an effective and expeditious manner, 
and while no process is perfect, my professional experiences working 
with the AST has been overwhelmingly positive. Instead of creating new 
bureaucracies and needlessly spending additional taxpayer dollars, 
Congress should support a concept that was initially proposed by 
Congressman Jim Bridenstine, to simply expand the existing payload 
review process to include non-traditional space activities. This 
`enhanced' payload review process represents the most expeditious, cost 
effective, and least disruptive strategy to address America's Article 
VI obligations. Congress could direct the AST to augment payload 
reviews in this manner, while also establishing a presumption of 
approval, deadlines, and other forms of protection to support an 
efficient process. Again, the AST is essentially doing this work 
already and has demonstrated the ability to successfully execute a non-
traditional interagency payload review.
    The enhanced payload review process would provide an elegant and 
effective means of addressing Article VI's requirement for 
authorization and continuing supervision of non-traditional space 
activities. By providing a governmental review and approving a payload, 
the `authorization' component of Article VI is clearly met. The 
`continuing supervision' obligation could similarly be addressed in a 
relatively simple fashion by including a proviso in a payload review 
approval letter requiring that if the proposed non-traditional space 
activity substantially changes from what was described in the payload 
review application, an update must be provided to the AST. This simple, 
benign clause, would be sufficient to address Article VI's continuing 
supervision requirement, and I believe that the relevant attorneys and 
policy leadership at the Department of State would agree with this 
contention.
    An enhanced payload review approval is especially helpful to 
entrepreneurs since, via the interagency process, the approval carries 
with it the support of both the Department of Defense and the 
Department of State. While NASA, the Department of Commerce, the FCC, 
and other agencies are also part of the payload review process, it is 
particularly important to have a mechanism for the Departments of 
Defense and State to be able to provide feedback. Companies need to 
know that their proposed activities will not interfere with Defense 
and/or Intelligence Community operations. Similarly, it is vital that a 
review process include an avenue for the Department of State to provide 
input relative to international treaty obligations. Ensuring that 
neither the Departments of Defense or State will object to a commercial 
space activity taking place is vital for entrepreneurs to obtain the 
regulatory certainty that they need to raise funds and execute 
innovative programs.
    Again, regulatory certainty is vital, and even if the U.S. were not 
a signatory to the OST, entrepreneurs would still need the enhanced 
payload review process to ensure that their operations could proceed 
without fear of objection from Defense, State, or other USG departments 
or entities. Moreover, the Enhanced Payload Review process provides a 
mechanism to de-conflict domestic private sector activities, ensuring 
that non-traditional commercial space operations can occur without fear 
of interfering with each other.
    The Enhanced Payload Review process also provides the private 
sector with protection against a more pernicious interpretation of the 
OST's `continuing supervision' requirement. In the realm of export 
control, USG supervision was often implemented in a counterproductive 
and even irrational manner. The Enhanced Payload Review process would 
establish a commonsense means of meeting U.S. obligations under Article 
VI, while also providing the private sector with the regulatory 
certainty that it needs regardless of any treaty obligations.
II. Problematic and Unclear Aspects of the Outer Space Treaty
A. Article XII
    Article XII of the OST states that:

        ``All stations, installations, equipment and space vehicles on 
        the Moon and other celestial bodies shall be open to 
        representatives of other States Parties to the Treaty on a 
        basis of reciprocity. Such representatives shall give 
        reasonable advance notice of a projected visit, in order that 
        appropriate consultations may be held and that maximum 
        precautions may be taken to assure safety and to avoid 
        interference with normal operations in the facility to be 
        visited.''

    It is likely that when the OST was drafted fifty years ago, private 
sector space stations, lunar facilities, and commercial transportation 
vehicles were not contemplated or even imagined. However, what was once 
science fiction is now becoming reality, and Article XII's requirement 
that foreign representatives be allowed to visit such facilities or 
spacecraft represents an unreasonable and possibly illegal demand for 
the USG to make upon the private sector. As a matter of fact, if a 
private sector company complies with Article XII, such actions could 
violate domestic export control laws depending upon the nationality of 
the visiting foreign representative. Although the U.S. has and should 
continue to support the peaceful development of space and encourage 
international cooperation and comity, due to the development of non-
governmental spacecraft and the potential for future private sector 
orbital and/or lunar facilities, the requirements of Article XII 
warrants attention.
B. Unclear Aspects of the OST
    There are several aspects of the OST that remain vague and/or are 
open to interpretation. For example, Article I of the Outer Space 
Treaty states in relevant part that:

        ``The exploration and use of outer space, including the Moon 
        and other celestial bodies, shall be carried out for the 
        benefit and in the interests of all countries, irrespective of 
        their degree of economic or scientific development, and shall 
        be the province of all mankind.''

    Although nothing in the OST prohibits commercial activities, 
language such as this has been raised by some nations to justify calls 
for the mandatory sharing of any economic benefits gained by private 
sector entities via outer space operations. Conversely, the U.S. and 
many other nations would interpret this clause to support free access 
(which is referenced later in Article I) to all countries for the 
exploration and use of outer space.
    Additionally, Article II of the OST states that:

        ``Outer space, including the Moon and other celestial bodies, 
        is not subject to national appropriation by claim of 
        sovereignty, by means of use or occupation, or by any other 
        means.''

    Some nations have interpreted this language to prevent the 
extraction and utilization of space resources by the private sector, or 
to create a global system of benefits distribution per the language 
cited previously in Article I. The U.S., and many other countries, do 
not share this interpretation of Article II and, per the Commercial 
Space Launch Competitiveness Act, contend that the utilization of 
extraterrestrial resources by the private sector does not conflict with 
Article II or any other aspect of the OST. During the most recent 
meeting of the United Nations Committee on the Peaceful Uses of Outer 
Space (``COPUOS'') Legal Subcommittee, the issue of asteroid mining and 
Article II were discussed at great length. Again, Article II does not 
prohibit or even limit asteroid mining or similar activities on other 
celestial bodies, but this debate and issue also warrants continued 
attention.
III. The Benefits of the Outer Space Treaty and the Dangers of Revision
    The Outer Space Treaty provides the fundamental underpinnings for 
international space activities. As described previously, there are 
aspects of the Treaty that are imperfect and open to interpretation, 
but despite the passage of fifty years, the OST has generally withstood 
the test of time. The reason for this can be found in the name of the 
OST itself. Specifically, The OST is a ``Treaty on Principles''. The 
OST lays out general principles such as the prohibition of weapons of 
mass destruction, the prevention of one country interfering with 
another country's space operations, and nation's supervising non-
governmental activities. The OST is not a proscriptive document and, in 
a manner that is similar to federalism in the U.S., the Treaty provides 
each nation with the freedom to meet its obligations in their own way. 
For example, Article VI does not dictate how countries should supervise 
private sector operations, it simply states that supervision should 
take place, and leaves it to individual countries to adopt laws and 
regulations that best suit their own unique needs and circumstances. 
This inherent flexibility and adherence to simple, core principles, is 
why the OST has survived for fifty years and is as relevant today as it 
was in 1967.
    Again, investors, insurers, and the private sector in general need 
certainty and predictability. For a half century, the OST has provided 
a stable framework for global space operations that public and private 
organizations alike have come to depend upon. The U.S. dropping out of 
the OST would result in a period of great uncertainty and international 
confusion, hindering the development and growth of both new and mature 
commercial space activities.
    As described previously, there are certainly aspects of the OST 
that are in need of clarification. It is important for U.S. 
policymakers to vigorously engage in the dialogue surrounding Articles 
I, II, and XII, and I am grateful to the Subcommittee for raising the 
profile of these issues. However, opening up the OST to revisions would 
likely only result in more language being inserted into the Treaty that 
would run counter to U.S. interests. There are 84 nations that belong 
to the COPUOS, and many of them do not share the U.S.'s desire to 
bolster commercial space development. Therefore, opening up the OST 
would create additional uncertainty for public and private space 
operations while running the risk of new language being inserted into 
the Treaty that would hinder commercial space development. 
Alternatively, if the U.S. were to drop out of the OST, it would 
undermine international obligations that support American interests 
such as the prohibition on weapons of mass destruction in space.
IV. Addressing Outer Space Treaty Issues Without Revising the Treaty
    In lieu of actually changing the language of the OST, the 
Department of State should meet with industry to identify aspects of 
the OST that need to be addressed. Subsequently, State, in conjunction 
with industry, can reach out to like-minded nations, focusing on 
launching states, to establish a consensus via bilateral and 
multilateral correspondence and agreements. This strategy would help to 
clarify and address any shortcomings of the OST, without running the 
risk of opening the Treaty up to modifications that would further 
hinder commercial development.
    The Department of State should be commended for aggressively 
reaching out to the private sector. As Chair of the Commercial Space 
Transportation Advisory Committee (``COMSTAC'', the Federal advisory 
committee to the FAA AST), I have joined the U.S. delegation during 
COPUOS sessions and have been consistently impressed with the 
leadership the Department of State has shown in vigorously defending 
private sector interests. Under the stewardship of Secretary of State 
Rex Tillerson, who of course has substantial experience in both 
international relations and exploring the development of new resources, 
I expect that the Department of State will continue to work closely 
with the private sector to grow domestic commercial space activities 
benefiting both the U.S. and the world.
    However, additional industry feedback is always helpful, and the 
Department of State may want to consider establishing a Federal 
Advisory Committee, similar to the COMSTAC, to provide the Department 
with independent input, guidance, and advice. Members of such an 
Advisory Committee could be nominated by the Director of the Office of 
Space and Advanced Technology for review and approval by the Secretary. 
The Department of State already actively consults with numerous 
companies and trade associations, and creating a Federal Advisory 
Committee would formalize this process, ensuring a continued strong and 
productive relationship between the Department and the commercial space 
sector.
V. American Policy Leadership
    When the U.S. leads in space exploration and utilization, the world 
benefits. Furthermore, U.S. leadership should not be limited to 
technological advances, but must also include policy development. The 
U.S. has an opportunity to demonstrate how nations can address their 
Article VI obligations, establishing a model for other countries to 
follow, and I therefore urge the Subcommittee to address this issue 
with alacrity. Innovative space operations such as private sector space 
habitats, asteroid mining, commercial lunar rovers, and satellite 
servicing are all transitioning from dreams into reality. Yet, the 
question remains, where will these activities occur and which nations 
will benefit. Again, when a positive regulatory environment is aligned 
with technological growth, innovation flourishes. Countries such as the 
United Arab Emirates have already developed holistic national space 
laws that comply with the OST while empowering entrepreneurship. 
Similarly, Luxembourg has leaned forward and has not only developed 
laws that support asteroid mining, but is actually investing government 
dollars to fund such commercial endeavors. The U.S. should learn from 
the UAE, Luxembourg, and other nations to adopt a regulatory regime 
that implements and improves upon global best practices. American 
entrepreneurs, investors, engineers, and scientists are doing their 
part to create a bold new future for our country in the final frontier. 
Now we need Congress to support aerospace innovation by establishing a 
regulatory regime that provides certainty, transparency, and 
efficiency.
    I appreciate this opportunity to testify before the Subcommittee 
and look forward to your questions.

    Senator Cruz. Thank you, Mr. Gold.
    Colonel Melroy.

   STATEMENT OF PAMELA MELROY, U.S. AIR FORCE (RETIRED), AND 
                        FORMER ASTRONAUT

    Colonel Melroy. Thank you, Chairman Cruz, Ranking Member 
Markey, and your superb staff, for inviting me here today. It's 
a privilege to be here to discuss this important topic.
    Today, I'd like to talk about satellite servicing. 
Satellite servicing is not new. As a NASA astronaut, I had the 
privilege of conducting and overseeing robotic activity on the 
space shuttle and during the construction of the International 
Space Station. To date, only the space shuttle, ISS, and the 
Hubble space telescope were designed to be serviced, and all of 
these activities occurred in low Earth orbit.
    From a commercial perspective, the high-value orbit is 
geosynchronous Earth orbit, GEO, home to hundreds of the most 
valuable commercial and national security satellites. These 
satellites are 36,000 kilometers from the surface of the Earth. 
If they experience any issues today, they cannot be repaired, 
losing valuable revenue or national security capability. GEO is 
a hugely impactful place to take the capability of servicing, 
and several companies have announced ambitions to develop those 
capabilities.
    Satellite servicing starts with what is called rendezvous 
and proximity operations, RPO. Two spacecraft begin thousands 
of kilometers from each other and use a powerful suite of 
sensors to perform precise navigation to converge their orbits 
within a centimeter of accuracy. In the most challenging cases, 
robotic operations will be required, nudging a solar array or 
aperture that failed to deploy, or even replacing a failed 
system on a satellite.
    These activities can spectacularly restore capability, but 
are potentially perilous to both the servicer and the client 
satellite. Improper actions or inadvertent error can generate 
orbital debris, which is a danger to all spacecraft. This 
potential for debris generation provides a clear connection to 
the Outer Space Treaty's Article IX references to harmful 
contamination and harmful interference, which the U.S. 
Government is obligated to avoid.
    Given Article VI's requirement for continuing supervision, 
I think commercial satellite servicing must have some form of 
scrutiny by the Federal Government to protect the 
sustainability and the safety of the space environment. 
However, as has been mentioned by several today, should this 
oversight regime be too onerous, the initiative will simply go 
to other countries. Having other countries set norms around RPO 
that may not be based on a technical or safety basis could be 
very damaging to both national security and to our economic 
interests.
    At the FAA's Office of Commercial Space Transportation, I 
learned that a simple regulatory change, even editorial, takes 
a minimum of 2 years. A complex rule can take five or more 
years to achieve. This is a nightmare in the face of rapidly 
evolving technologies and business plans.
    However, I also saw the use of industry consensus 
standards. Industry standards allow companies to be an advocate 
for their innovative technologies and business plans. Standards 
can be updated much more easily and, long-term, they could be 
helpful in enabling regulations that are performance-based and 
not prescriptive.
    When I was at DARPA, I helped initiate a joint program with 
NASA called CONFERS, the Consortium for Execution of Rendezvous 
and Servicing Operations. The goal of the program is to fund a 
consortium to bring together technical experts across industry 
and government to develop consensus technical standards for 
rendezvous and servicing. These standards could provide a basis 
for evaluating compliance with the Outer Space Treaty by the 
U.S. Government and may prove a successful model for future 
oversight of other areas as well.
    A few other comments regarding that oversight. Today, most 
cameras in space are pointed down at the Earth, not at other 
satellites. Any oversight must consider the powerful suite of 
sensors carried by satellite servicers to accomplish RPO with 
respect to the protection of national security operations and 
proprietary commercial information. For national security, 
it'll be critical to verify that a commercial satellite is, in 
fact, acting cooperatively when it approaches another satellite 
and is operating in a predictable way to prevent 
misunderstandings.
    Verification of RPO activities will likely be the most 
stressing case for space traffic management. A single window to 
industry for authorization and verification of servicing 
operations seems best.
    Thank you, Mr. Chairman, for the opportunity to discuss 
this important and exciting topic.
    [The prepared statement of Colonel Melroy follows:]

    Prepared Statement of Pamela A. Melroy, NASA Astronaut, retired
    Thank you Chairman Cruz, Ranking Member Markey, distinguished 
members of the Subcommittee, and your superb staff for inviting me here 
today. It's a privilege to be here to discuss this important topic and 
to be with eminent colleagues and friends who are as passionate as I am 
about commercial space. I am thrilled that this committee has taken on 
the important work of considering the Outer Space Treaty and 
appropriate oversight of commercial space activities in the Unites 
States.
    There are many exciting activities and proposals in commercial 
space. With respect to the Outer Space Treaty, I am deeply concerned 
that we would be opening a Pandora's Box by attempting to change it. My 
concern is that the likely outcome would be a lack of consensus, 
resulting in no amendments. Instead, we will have a weakened dedication 
to the Principles of the Treaty and the sustainability of space. Great 
changes are occurring and many countries are developing capabilities 
that previously were the purview of only a few nation states. Our 
ability to compete both economically and technologically in space is 
crucial. These Principles form the basis for the dialog that we have 
with other countries about what is appropriate and what is not. Without 
them, the dialog becomes chaos.
    Today I would like to discuss a specific activity--satellite 
servicing. Satellite servicing itself is not new. As a NASA astronaut, 
I had the privilege of conducting and overseeing robotic activity on 
the Space Shuttle and the International Space Station (ISS) during its 
construction, and the opportunity to observe my colleagues conduct 
extraordinary work on the equally extraordinary Hubble Space Telescope. 
I saw first-hand the power of the capability to inspect, repair, and 
upgrade satellites. To date, only the space Shuttle, ISS, and Hubble 
have been designed to support being serviced, and all of these 
activities occurred in low earth orbit. Low earth orbit (LEO) is 
conducive to tele-operation (think ``joystick'') of robotic arms by 
astronauts in space, who can observe out the window and use real-time 
video. In addition, ground operators have proven capable of performing 
robotics in virtually real time from the ground to LEO. Advances in 
technology now permit impressive levels of autonomy that are less 
reliant on the intense supervision of humans that can only occur in 
LEO. These advances in autonomous rendezvous and docking, and greater 
levels of autonomy in robotic task performance now provide the 
potential to push satellite inspection and repair beyond LEO.
    From a commercial perspective, the high value orbit is 
geosynchronous earth orbit (GEO), which is home to hundreds of the most 
valuable commercial and national security satellites. Commercial 
revenues from GEO satellites exceeded $110 billion in 2015, according 
to the Satellite Industries Association. These satellites reside 36,000 
kilometers from the surface of the earth; at present, if they 
experience any issues they cannot be repaired, losing valuable revenue 
and national security capability. GEO is a hugely impactful place to 
take the capability of servicing. And several companies have announced 
ambitions to develop these capabilities, either on their own or in 
public-private partnerships with the government.
    Let's break down the term ``satellite servicing'' into the 
operations terms that best describe the kind of activities that 
actually occur during servicing. The first is getting close to the 
client satellite that you intend to service. This intentional bringing 
together of two objects in orbit is called, in space parlance, 
rendezvous and proximity operations (RPO). It begins with two 
spacecraft thousands of kilometers from each other and the 
orchestration of a suite of sensors to perform precise navigation to 
converge orbits to a specified location within a centimeter of accuracy 
on final docking to the client (should it be required). In the most 
challenging cases, some sort of robotic operations will be required--
nudging a solar array or aperture that failed to deploy, grasping a 
fouled thermal blanket, even replacing a failed system on a satellite.
    These activities are massively impactful in restoring capability, 
but potentially perilous to both the servicer and the client satellite. 
The consequences for improper actions or inadvertent error during 
either RPO or robotics are not just the damage to one or both 
satellites, but more critically the generation of debris. This orbital 
debris can cause additional damage to the servicer or client, creating 
even more orbital debris, and it can float away and damage other 
spacecraft in the same or lower orbits.
    The safety issues associated with these space operations are not 
trivial--in fact I would argue that servicing is the activity most 
dangerous to space sustainability of any of the proposed commercial 
operations. NASA and national security operators have demonstrated the 
capability to safely perform rendezvous and proximity ops, and NASA has 
perfected and mastered space robotics operations during Hubble repairs 
and the construction of the ISS. As commercial servicing operations go 
into business, what assurance do we have of their safety?
    These operations are challenging, but the government and its 
contractors do have over fifty years of experience in this area. In 
fact, today commercial satellites are safely performing RPO and 
collaborative robotics with a government satellite. That's thanks to 
NASA's Commercial Cargo program, where industry has proven capable of 
maneuvering cargo vehicles in close proximity to the ISS, where they 
are grappled and docked by astronauts. NASA has proven that the safety 
and policy issues can successfully be addressed via the contract with 
the government and these commercial providers. The same companies 
providing services and performing RPO at ISS are also developing 
business to service commercial satellites. While we can expect 
technologies and best practices should transfer, when a commercial 
provider is servicing another commercial provider and no government 
experts are involved, how will the government be confident they will be 
adhered to? That is essence of what I want to talk about today.
    The potential for debris generation provides a clear connection to 
the Outer Space Treaty's Article IX reference to ``harmful 
contamination'' and ``harmful interference'' which the U.S. Government 
is obligated to avoid. Given Article VI's requirement for continuing 
supervision, I think that commercial-on-commercial satellite servicing 
operations must have some form of scrutiny by the Federal Government to 
protect the overall sustainability and safety of the space environment. 
The lack of clarity on regulatory oversight creates financial and 
regulatory risks for industry, and diplomatic risks for the U.S. 
Government.
    However, should this oversight regime be too onerous, the business 
advantage will simply go to other countries. Other nations will pursue 
this technology whether or not the U.S. does. Having other countries 
set norms in this area is potentially extremely damaging to both 
national security and to our economic interests. The U.S. Government 
must provide support and clarity to enable these new businesses both 
for the benefit of our satellite systems and benefit for our economy.
    So what should be considered when planning oversight 
responsibilities?
    I'll point out again that NASA and its commercial partners are 
operating just fine right now. Whatever solution is devised, it should 
not add new layers of oversight onto previously existing arrangements, 
or reduce any government agency's authority and flexibility to 
accomplish their mission.
    From a governance perspective, there are significant national 
security implications to these activities. It will be extremely 
important to verify that operators are trained to prevent debris 
generation--that is obvious. But it's also important to national 
security to verify that a commercial satellite is in fact acting 
cooperatively when it approaches another satellite, and is operating in 
a predictable way to prevent misunderstandings. In the long term, 
verification of proper behavior--and attribution of improper behavior--
will also be necessary. Unfortunately, the ability to have real-time 
information about the space domain--all space objects, at all orbits, 
at all times--is a challenge that has yet to be overcome. Tracking and 
verification of RPO activities will likely be the most stressing case 
for space traffic management technical capabilities--far more difficult 
than predicting potential collisions with debris in slow-changing 
orbits. As discussions inside the government continue about who should 
be responsible for space traffic coordination, please consider that 
those activities will have to be closely coordinated with any servicing 
oversight. It seems best to consider having a single window to industry 
that oversees both the authorization and the verification of servicing 
activities.
    Another consideration is that national security satellites do not 
like having their picture taken. This is not shyness, but in fact 
needed protection of our capabilities and support for operational 
activities on the ground. Commercial satellite operators turn out to be 
just as concerned on this point. A competitive advantage may be gained 
by learning exactly what equipment a specific satellite is carrying and 
if there are any failures evident. Today most cameras in space are 
pointed down at the earth, not at other satellites. Any future 
regulator must consider the powerful suite of sensors that servicing 
satellites carry to accomplish RPO with respect to the protection of 
both national security operations and proprietary commercial 
information.
    In terms of what oversight should look like to industry, careful 
thought and caution is needed. At the FAA's Office of Commercial Space 
Transportation, I learned that a simple regulatory change--even 
editorial--takes a minimum of two years to accomplish if you simply put 
the days required by the process end to end. A complex rule--even the 
revocation of a rule--can take five or more years to achieve. This is a 
nightmare in the face of rapidly evolving technologies and business 
plans. One process I observed at the FAA on the aviation side was the 
use of standards which the FAA scrutinized, then issued a statement to 
advise that compliance with the standard was adequate to meet the 
intent of corresponding simple, performance-based regulations. 
Standards can be updated much more easily and a relatively short 
process used to validate that they continue to meet the intent of the 
regulations. Standards can be tremendously helpful in enabling 
regulations that are performance-based, and not prescriptive.
    At this time, there is no single agency with clear authority to 
oversee all of these types of on-orbit activity. As has been described 
by others, the FAA has launch and entry oversight. The FCC has spectrum 
oversight. NOAA has oversight of remote sensing of the earth. But even 
if today, with a mighty penstroke Congress decided to issue such 
authority, none of these agencies yet has the resources--including 
operational experts in these areas--needed to perform oversight of 
specialized activities like RPO and robotics. It will take years to 
develop regulations, and these regulations may be outdated by the time 
they are passed.
    It is my assertion that industry consensus standards can fill in 
the gap and provide a basis for evaluating safety by future regulators 
when they do have this authority. Industry must be involved from the 
beginning and provide the advocacy for their innovative technologies 
and business plans. Industry consensus standards will allow an agency 
tasked with oversight to consider and nurture these needs, while still 
being mindful of best practices learned over decades of government 
servicing activities.
    It might appear that the wholesale transfer of NASA's safe 
operating procedures and ``flight rules'' could solve the problem. 
However, these operating procedures are written with the specific 
design of the client satellite--in this case, ISS--in mind. The size of 
the solar arrays, and the desire not to spray them with the outflow 
from the thrusters of the approaching spacecraft, and similar 
constraints dictate the approach corridor, keep out zones, and safety 
gates. One example of the difference between a flight rule and a 
standard which applies to all vehicles is the concept of a passively 
safe orbit. A passively safe orbit means that you have designed the 
approach using orbital mechanics that will allow the two spacecraft to 
pass by each other harmlessly with no collision. At some point you then 
initiate the final approach which will result in docking. Keeping that 
point as late as possible limits the amount of time that you are 
exposed to the risk of collision if there is a failure on either 
spacecraft or a loss of communications. The size of the client 
spacecraft dictates the distance at which you can continue to be 
passively safe. Therefore, a standard would not give a distance; 
rather, it might state that approaches should be passively safe until 
as late as practical. This is but one example of how government know-
how can be translated into standards. NASA experts carry the vast store 
of knowledge we have about RPO in low earth orbit, and robotic 
servicing operations. Other experts around the government have also 
been involved in various RPO activities. Government experts must also 
be involved in the development of these standards.
    So if this model is such a paragon, why isn't it in practice today 
in other areas of commercial space? The good news is that the 
advantages of industry consensus standards is well understood. The 
Commercial Space Transportation Advisory Committee (COMSTAC), the FACA 
committee advising the FAA is working on standards around a variety of 
areas that the FAA already has jurisdiction over. It was recently 
announced that ASTM International has formed a working group to develop 
a standards roadmap for commercial space.
    RPO and servicing are arguably a very small part of the range of 
commercial space activities, but a vital one, and require the attention 
of specialists. When I was at DARPA, I advocated for and helped 
initiate a joint program with NASA called CONFERS--Consortium for 
Execution of Rendezvous and Servicing Operations. The goal of the 
program is to fund the creation of an industry/government consortium to 
develop non-binding consensus technical standards for safe rendezvous 
and servicing operations. I emphasize technical, because it is not the 
intent for these standards to incorporate policy guidance or 
preferences for behavior, but physics and operational safety-based best 
practices.
    Often standards development is hindered by the lack of funding for 
administrative support; technical experts are willing to have 
discussions but there is less interest in the administrative tasks of 
writing everything down, tracking issues to be resolved, etc. If it's 
no one's ``day job''--much less full-time day job--the process can take 
many years. By funding an Executive Director and a standards 
organization to provide the persistent leadership to develop this 
special set of standards, CONFERS will ensure that the effort will more 
quickly produce those standards. I believe that this approach will 
enable the U.S. government to have a technical and safety basis for 
understanding servicing activities when oversight is eventually put 
into place. This approach may prove a successful model for future 
oversight of other areas as well under the Outer Space Treaty.
    Thank you for the opportunity to discuss this important and 
exciting topic with you, and I look forward to lending my technical 
expertise to the discussion.

    Senator Cruz. Thank you, Colonel Melroy.
    Thank you to each of you for very helpful testimony. Let me 
start with a question that we asked the preceding panel as well 
to each of you, which is: Should this committee take up 
legislation to provide greater certainty and predictability and 
clear incentives for the private investment of resources in 
space, and, if so, what should the contours of that 
legislation, the contours of any such regulatory regime be, and 
to what extent does the Outer Space Treaty serve as a barrier 
to doing so?
    Mr. Richards. Well, perhaps, Mr. Chairman, I could start. 
Having lived the dream and come up against the stark reality 
that we had a mission planned, we had investors invested, but 
didn't have a way forward at the end of 2015. Not that the 
government--there was anybody that didn't want to say yes. 
There was just no mechanism to do so.
    So we were able, through months and months of expensive and 
time-consuming effort, both on our company's executive side and 
the great people throughout all the interagency Federal 
stakeholders, found a solution, but a temporary patch in this 
mission approval. However, the mission approval was--once it 
was given, it was made clear that it was a one time only thing 
for our one company, for our one mission, and although there 
would be a proactive desire to continue that type of support, 
there was no guarantee that it could be done again.
    So we need a certainty. Here we are, about to execute on 
our first lunar mission, planning further missions--and, Mr. 
Chairman, you mentioned those peaks of eternal light on the 
Moon. Those are, indeed, the destinations that we are looking 
at for our second mission, and we have yet to have a certainty 
of process in order to gain the Article VI authorization and 
supervision to go there.
    So I did recommend a light-touch regulatory environment 
that promotes certainty with a minimum of regulatory burden. 
Inaction or nothing is not enough. And we have found a way 
through existing protocols with a little bit more voluntary 
disclosure to find a way through. So perhaps that's a data 
point for the models that will be helpful in the more permanent 
solutions that are found in the future.
    Senator Cruz. And, Dr. Richards, let me follow up on your 
answer there. My understanding is that your mission approval 
from the FAA states, quote, ``The FAA made a favorable payload 
determination for this particular mission. However, not all 
non-traditional space missions may lend themselves to favorable 
payload determinations under the payload review authority in 51 
U.S.C. 50904. Future missions may require additional authority 
to be provided to the FAA to ensure conformity with the Outer 
Space Treaty.''
    My question is: What impact did that statement have on Moon 
Express and the certainty you need to continue to receive 
funding from investors to facilitate future missions?
    Mr. Richards. That letter was written on July 20 of 2016, 
which was a venerable date, of course, for that to happen. It 
was great news that the authority was given for that once. It 
was an indication that it was possible, but it was certainly 
not an indication of certainty for the future.
    We are moving forward with the belief that the United 
States will continue to find a way. These hearings and the 
conversations that are underway right now are giving us great 
hope that these things will happen. Our colleagues in other 
industries want to go to asteroids and want to go to Mars. We 
want to go to other destinations, too, and it's going to start 
happening fast and frequently. So although we're not there yet, 
I have confidence that these conversations and others will lead 
to a permanent solution that we can all live with and flourish 
with.
    Senator Cruz. Do others have thoughts on this?
    Mr. Gold. Senator Cruz, if I could----
    Senator Cruz. Sure.
    Mr. Gold. The language that you just quoted is actually 
much more frightening for those coming afterward than it was 
for the company that received it, and we certainly fall into 
that category. This is not science fiction. This is not 
academic. These satellite servicing missions are happening, 
both RSGS and Restore-L, in LEO and GEO, both of which are 
critical orbital domains. Satellite servicing is a race that we 
cannot afford to lose in America, whether it's for national 
security, commerce, or both.
    Our experience is that we are in a state of relative 
confusion. We don't know what agency will be responsible. You 
have already heard negative reactions to the status quo and 
what has occurred. We need certainty, because our investors 
want it, insurers want it. The private sector must have it, and 
we don't have sufficient certainty now, which is why we implore 
you to take action.
    Now, that action should be based upon common sense, it 
should be balanced. Just to go back to the Connecticut 
analogy----
    Senator Cruz. Common sense. I'm sorry. This is Washington.
    [Laughter.]
    Mr. Gold. I know. Hope springs eternal in a science fiction 
fan, Senator.
    We don't want to see the Federalization of Connecticut, as 
described before. But there should be a speed limit. Now, I've 
been to Connecticut. They don't abide by that, but, 
nonetheless, it's helpful.
    I believe we should take the existing procss at the FAA AST 
and ensconce and formalize it. It's working. I think both Dr. 
Richards and I had positive experiences with it. What we don't 
want to see is whole new bureaucracies stood up, new 
requirements, new licenses, new processes. We have a system 
that is working. Let's ensconce it. Let's proceed.
    And relative to your question about the Outer Space Treaty, 
there is actually an alignment here between the private 
sector's desire for certainty and the requirements of Article 
VI. By going the simple route and just creating the enhanced 
payload review process at the FAA AST, we can solve both at 
once.
    Part of the reason I'm so concerned about Article VI is not 
because of today. I think the Department of State and the 
Department of Defense have done a great job. But it's because 
of tomorrow. No two words in the English language scare me more 
than ``continuing supervision,'' particularly when it comes to 
the government.
    Per the example of export control, we saw the worst of what 
continuing supervision can mean. When we would travel to 
Russia, I would travel with a number of U.S. Government 
officials breathing down our necks, monitoring every word that 
we would say, and we had the pleasure of paying for the 
privilege, $150 per monitor per hour. We would joke with the 
Russians that the KGB may have spied on you back in the day, 
but at least they had the good courtesy to do it for free.
    [Laughter.]
    Mr. Gold. So we need a regime that locks in this, dare I 
say it, common sense approach because if there's some sort of 
crisis--and this is what happened with export control, there 
was an incident, and when that occurs, then you get bad policy. 
You get knee-jerk reactions. So let's take this time now to 
create a system that benefits national security, benefits the 
private sector, and meets our Article VI obligations.
    Senator Cruz. So let me ask two final questions. The first 
is: If there should be an agency in charge of implementing 
these rules, what agency should that be?
    And the second question, I want to address specifically to 
Mr. Marquez, which is that Planetary Resources is establishing 
a European headquarters in Luxembourg to conduct research and 
development activities in support of commercial asteroid 
prospecting. I want to ask how does the competitiveness in the 
United States compare to Luxembourg and other jurisdictions, 
and what can we do to ensure that America remains the most 
competitive place in the world for commercial space 
entrepreneurs? Either or both of those questions.
    Mr. Gold. I'll take the first question and then turn the 
other over to Peter. Relative to the agency, please don't make 
me go to any more agencies. I go to enough as it is. The FAA 
Office of Commercial Space Transportation has demonstrated that 
it's capable, it's willing, and it can be successful in running 
an interagency process, because, ultimately, it's never going 
to be a single agency. We're going to have to go to Defense. 
We're going to have to go to the Department of State. What I 
need is a single belly button, a single door, an ombudsman to 
the rest of the Federal Government so that, like Dr. Richards, 
we don't have to go to every single agency ourselves as a 
private sector entity.
    Via the enhanced payload review, the AST has proven it can 
talk to those other agencies, bring them together, and get 
through the process. So I would like a single front door for 
the government, and then for that agency to go to the other 
departments with interests and come back with a response. 
Again, I believe the most expeditious way to do that is to go 
through the FAA AST since they're doing it already and I 
already have to go there.
    Senator Cruz. Any different views on that question from Mr. 
Gold's?
    Mr. Marquez. I just have a few--I don't want to say 
different, just more detail on it. One, I think, foundational 
item we need to do is in Article VI, it says authorize and 
continually supervise. Nobody in this room knows what that 
means. We need to work on what that means and what our 
obligations--as we interpret our obligations to be under 
authorized and continually supervised.
    Again, I agree with my colleagues here that regulation 
needs to be a light touch, even if it is regulation. I think 
something akin to even filing a flight plan is good enough. 
Again, I also agree that having a known front door and having 
that front door staffed and funded to review these types of 
activities, having the process and method known for what you're 
going to be authorized and supervised known, that there's an 
assumption of compliance with the treaty. None of us want to 
violate the treaty. We're in this for business. We have no 
interest in making space an unpredictable and unsafe place to 
operate.
    The second--or the fourth element here is that it needs to 
be transparent, the process. We have to know what's going on 
inside that process. And the final one, again, coming from the 
national security community, is as a company, I want to know--
if I'm denied, I want an avenue for redress and appeal, to be 
able to change something that may be a national security threat 
so I can still do my operation, but do it in a way that is not 
an issue for national security.
    To your second question, Senator, about competitiveness 
versus Luxembourg, our subsidiary in Luxembourg is taking 
advantage of a great opportunity in that we have access to 
engineers from around the world that we would not be able to 
have access to here in the United States. It gives us an 
opportunity to access all those people due to things that Mr. 
Gold is very well aware of on export control issues.
    The competitiveness, I would say, is that they have taken 
initiative to not only create an analog to Title IV of the 
recognition of the right to own resources that you obtain from 
objects in space, but they've taken the next step to put that 
structure in place that meets their Article VI obligations. So 
there is a certain level of certainty in operations to be 
conducted in Luxembourg. The Emirates is doing the same thing. 
I've actually heard positive language from the Chinese about 
trying to do the same thing.
    So this is a growing area where I think, competitively, 
this is no longer just a space race. This is a legal race. It's 
a race to give surety and predictability to the commercial 
space industry. And we're not looking to completely uproot and 
move to another place, but we're taking advantage of the 
opportunities it gives us to get that wonderful staff that 
exists elsewhere in the world.
    Colonel Melroy. Mr. Chairman, I'd just like to reinforce, 
first of all--yes, this most definitely is a legal race with 
national security implications. So I'd like to pile on that 
statement.
    As far as who should be in charge of oversight, I think the 
most important thing is that right now, none of the agencies 
proposed have the resources to appropriately oversee some of 
these activities. They don't have all the technical experts 
that are needed in these areas. They may have some. But I would 
like to say that AST has a very high concentration of space 
experts with a variety of backgrounds and expertise in this 
area, and it makes sense if you're going to give responsibility 
and you have to find extra resources to start with where that 
dense population already exists.
    Senator Cruz. Thank you.
    Senator Markey.
    Senator Markey. Thank you.
    So let's go to what, briefly, each of you might think are 
standards that you think should be put in place domestically 
that then could be used as precedents for international 
standards that our competitors around the world would then 
understand that they would have to meet, because we were the 
leader? So let's just talk about--if each of you could just 
give us a couple of standards that you'd like to see, if we did 
legislate, put on the books.
    Mr. Richards. Sure. Well, I guess we can go in sequence.
    Senator Markey. Sure.
    Mr. Richards. I mentioned maximum certainty with minimal 
regulatory burden. I mentioned a presumed or a deemed approval, 
and I think that's an important concept. When we go to whatever 
agency is selected to adjudicate this, we're not going as a 
commercial company asking permission. There should be a 
presumed right of commerce in space just like there's a 
presumed right of commerce in aviation. But that doesn't mean 
you don't have to file a flight plan.
    So being transparent about what each of us wants to do in 
space is important to make sure we're not interfering with each 
other or somebody else, as Peter has said----
    Senator Markey. So that should be a standard?
    Mr. Richards. That should be a standard.
    Senator Markey. Another standard?
    Mr. Richards. Right. So non-threatening to any national 
security interest, number one.
    Senator Markey. OK. Number one.
    Mr. Richards. Number two is not abrogating or threatening 
any of our international obligations under treaty. Number three 
is not interfering with ourselves or any other foreign activity 
in space.
    Senator Markey. Thank you.
    Mr. Marquez, international standards that we should set 
here domestically that you think would be important to have 
internationally.
    Mr. Marquez. Again, I'll concur with my colleague from Moon 
Express. I think that the irreducible standard here is one of 
non-interference, of non-harmful interference, in making sure 
that whatever we approve to do here in the United States is not 
going to interfere with our own actions, the actions of our 
government, and the actions of our friends and allies who are 
also signatories to the Outer Space Treaty, and even those that 
are not signatories to the Outer Space Treaty.
    There are probably a few other technical things that would 
go into a specific review----
    Senator Markey. Well, just give us a couple.
    Mr. Marquez. I think the ability to show that you can 
maintain positive command and control over your satellite and 
the ability to communicate with it so that it won't go awry and 
stray, those types of things. And then, again, like I said, 
filing a flight plan so that people know where you're going and 
the purpose of your mission, you know, the transparency in what 
it is that you hope to achieve in your activity.
    Senator Markey. Mr. Gold?
    Mr. Gold. I think you will hear a lot of repetition, but 
national security interests, international treaty obligations, 
and non-interference, domestic or foreign, should all be 
reviewed. I believe another aspect that we need to pay 
attention to is if an agency generates a negative response to 
an application, the answer shouldn't be a simple ``no'', 
instead we need ``yes, but'' forcing an agency to explain to a 
company what it is that they need to do to try and get to yes, 
because just saying no really doesn't leave a lot of room for 
innovation or growth, and I think that is a problem that we 
have seen occur during remote sensing commercial licensing. I 
believe if you just take those simple values and put it into a 
light-touch, almost a registration-based regime, that it would 
function and function well.
    And per the race discussion, this is a race----
    Senator Markey. And that's all you would really expect from 
United Arab Emirates or from India? Is that what you're 
saying--the same kind of standard?
    Mr. Gold. Yes. I think UAE, in particular, has done an 
excellent job of establishing a common-sense approach that 
balances the need for a secure environment and for non-
interference, again, foreign and domestic, without being too 
heavy handed. Unfortunately, a lot of this doesn't lend itself 
to blanket solutions. Many of these issues need to be addressed 
on a case-by-case basis, requiring a policy that is 
sufficiently broad and flexible to handle that, and I think if 
the U.S. leads and joins other countries like the UAE, et 
cetera, we can see this develop as an international standard.
    The last thing I would say is that, going back to the ITAR 
example, there can be crises or incidents that lead to bad 
policy and, currently, we are experiencing a smallsat 
revolution, with thousands of cubesats in orbit and many more 
to come. We just heard about the deployment with India of 100 
or more cubesats in a single launch. That is why we need to get 
these rules in place in a manner that supports innovation, 
because we want that to occur, but balances it with the 
security of the environment in space.
    Senator Markey. Colonel Melroy, let's deal with that 
question. India is launching, and they're doing things that 
we've never done. So what standards do you want to have set 
here that then we would say, ``Well, these are what we believe 
are legitimate standards, India, or other Middle Eastern 
countries. What are you doing to meet these minimal standards 
that we think should be in place?'' What are those standards, 
from your perspective, and how would we then, if we established 
them, ensure that Middle Eastern countries, India, then met 
them so that there was a certain rule of the road for outer 
space going forward?
    Colonel Melroy. Thank you, sir. I think that's a wonderful 
question. I have to say that we've heard some less than 
flattering things about lawyers here. But, in my opinion, we 
need to get the engineers and the lawyers together, because 
these need to be technically based. The truth is that everybody 
has preferences for how they want other people to operate their 
satellites to the benefit of their own country. But if you 
don't have a basis, a safety or technical basis, that is 
actually going to generate mistrust, you know, ``Why do you 
want me to do it that way?'' So it's very, very important, I 
think, that we should use the universal language of physics.
    Space is a unique domain. It's not intuitive the way it is 
to us here on the ground, in the maritime, and even the air 
domain. So really understanding the implications of what you're 
doing--a great example of that is you might think it would be a 
standard to stay a certain distance away from any given 
satellite. However, that's meaningless in low Earth orbit, as 
satellites might be passing each other in orbits that will 
never collide, ever, ever. On the other hand, they seem to be 
coming close to each other. So you really have to understand, 
actually, what's going on.
    A better idea is that you have a passively safe orbit so 
that you won't collide with any other satellite until, if you 
decide to do a rendezvous, at the very latest practical moment, 
which is usually guided by the physics of the client's 
satellite. So those are the kinds of predictable behaviors that 
I think give us confidence that people actually have done the 
science behind what they're doing, and they're not going to 
collide with each other and generate debris.
    Senator Markey. OK. What is your training, Colonel?
    Colonel Melroy. An Air Force test pilot, sir.
    Senator Markey. What was your major in college?
    Colonel Melroy. Physics.
    Senator Markey. I was wondering--physics. So you want us to 
abide by the rules of physics?
    [Laughter.]
    Senator Markey. There's the rule of law and the rule of 
physics.
    Colonel Melroy. Exactly, exactly. I think they can be 
worked to be harmonized.
    Senator Markey. Right, and lawyers and physicists can learn 
from each other a little bit about how, then, to put that into 
a useable form.
    Colonel Melroy. Yes, Senator. Perfectly said.
    Senator Markey. Thank you. Thank you so much for your 
service to our country.
    Thank you, Mr. Chairman.
    Senator Cruz. Thank you, Senator Markey, and I would note 
for any skeptics in the hearing room that for those who don't 
believe in miracles, we've seen not one, but two witnesses on 
this panel defend lawyers.
    [Laughter.]
    Senator Cruz. I suspect we may go many years in the Senate 
without that ever occurring again.
    With that, I want to thank each of the witnesses for 
participating in today's hearing, both in the second panel and 
the first panel. I think it was a very educational and 
enlightening hearing.
    It is the intention of this committee to go forward with 
legislation, seeking to create a system that incentivizes the 
investment and maximizes the potential for exploration in 
space. So I would extend an invitation to each of our witnesses 
and to other interested players in this arena. We are in the 
process of a multi-part series of hearings to learn, to study, 
and, hopefully, to come to consensus about how to create the 
best system of rules to provide certainty and maximize 
investment.
    The hearing record for this hearing will remain open for 2 
weeks. During that time, Senators are asked to submit any 
questions for the record, and upon receipt, the witnesses are 
requested to submit their written answers to the Committee as 
soon as possible.
    And with that, the hearing is now adjourned.
    [Whereupon, at 4:23 p.m., the hearing was adjourned.]

                            A P P E N D I X

                       International Institute of Space Law
                                         Paris--France, 24 May 2017

To: U.S. Senate Committee on Commerce, Science, and Transportation

Senator John Thune, Chairman

Senator Bill Nelson, Ranking Member

CC: U.S. Senate Subcommittee on Space, Science, and Competitiveness

Senator Ted Cruz, Chairman

Senator Edward Markey, Ranking Member

Subject: Letter for the record for the hearing on ``Reopening the 
    American Frontier: Exploring How the Outer Space Treaty Will Impact 
    American Commerce and Settlement in Space''

Dear Chairman Thune and Ranking Member Nelson,

    Founded in 1960, the International Institute of Space Law (IISL) is 
an independent non-governmental organization dedicated to fostering the 
development of space law. The purpose of the IISL includes the 
promotion and further development of space law and the expansion of the 
rule of law in the exploration and use of outer space for peaceful 
purposes.\1\ As such, the IISL has a keen interest in the topics to be 
discussed at the hearing organized by your Subcommittee on May 23, 
2017. We submit the following letter in support of the Subcommittee's 
deliberations.
---------------------------------------------------------------------------
    \1\ Composed of individuals and institutions of more than 40 
countries elected on the basis of their contribution to space law, the 
IISL is sister organization of the International Astronautical 
Federation (IAF) and the International Academy of Astronautics (IAA). 
With special consultative status to the United Nations Economic and 
Social Committee (ECOSOC), the IISL is an officially recognized 
observer at the United Nations Committee on the Peaceful Uses of Outer 
Space (COPUOS) and of two subcommittees, the Scientific and Technical 
Subcommittee, and the Legal Subcommittee; see also www.iislweb.org.
---------------------------------------------------------------------------
1. Status of the Outer Space Treaty
    The Outer Space Treaty of 1967 was drafted and negotiated within 
the Committee on the Peaceful Uses of Outer Space (COPUOS), a body of 
the United Nations constituted in 1958 as subsidiary to the United 
Nations General Assembly. Meeting in New York and in Geneva, 
Switzerland, COPUOS and its Legal Subcommittee drafted the treaty in 
the mid-1960s amidst geopolitical tensions which threatened to spill 
over into outer space, a new realm of humankind's exploration and use. 
The founders of the IISL participated in the drafting of this important 
instrument.
    Then comprised of 28 states, COPUOS adopted the draft text of the 
treaty in late 1966, which was expedited to the United Nations General 
Assembly for inclusion in its Resolution 2222 (XXII) of December 17, 
1966.\2\ Signing ceremonies were held in Moscow, London, and in 
Washington D.C. at the White House. The Outer Space Treaty entered into 
force on October 10, 1967.
---------------------------------------------------------------------------
    \2\ Treaty on Principles Governing the Activities of States in the 
Exploration and Use of Outer Space, including the Moon and Other 
Celestial Bodies, G.A. Res. 2222 (XVII), U.N. Doc A/RES/2222 (Dec.17, 
1966), available at http://www.un-documents.net/a21r2222.htm.
---------------------------------------------------------------------------
    The Outer Space Treaty was quickly followed by a number of 
subsequent treaties on space, also negotiated and drafted within COPUOS 
with the direct involvement of IISL membership. These treaties 
clarified and expanded many of the major provisions of the Outer Space 
Treaty. The 1968 Astronaut Agreement expanded on Article V of the Outer 
Space Treaty. The 1972 Liability Convention expanded on Articles VI and 
VII of the Outer Space Treaty. The 1975 Registration Convention 
expanded on Article VIII of the Outer Space Treaty.
    As of 2017, the Outer Space Treaty has 105 states which have 
ratified the treaty.\3\ These include all of the major and historical 
spacefaring states such as the US, Russia, China, India, Brazil, Japan, 
and all the Member States of the European Space Agency (ESA). New and 
emerging space powers also often sign the treaty as a way to solidify 
their arrival in the community of serious spacefaring states. 
Additionally, a further 25 states have signed the treaty, which 
expresses their intention to ratify it in the future, or at least not 
to take actions which violate the intentions of the treaty.
---------------------------------------------------------------------------
    \3\ United Nations, Committee on the Peaceful Uses of Outer Space, 
Legal Subcommittee, Status of International Agreements relating to 
activities in outer space as at 1 January 2017, A/AC.105/C.2/2017/CRP.7 
(2017) available at http://www.unoosa.org/res/oosadoc/data/documents/
2017/aac_105c_22017crp/aac_105c_22017crp_7_0_html/
AC105_C2_2017_CRP07E.pdf.
---------------------------------------------------------------------------
2. Effects of the Outer Space Treaty
    The Outer Space Treaty is an instrument of guiding principles that 
have served all aspects of the space sector successfully since 
inception. First granting space freedoms to explore and use outer space 
for peaceful purposes and the benefit of all mankind, the treaty's 
subsequent articles provide a framework denoting activities that are 
either permitted or prohibited in furtherance of those freedoms. 
Commercial space applications and activities have flourished in this 
legal environment. The framework relies upon responsible legislation 
promulgated at the national level by State Parties to the Treaty. The 
United States has shown leadership in this regard, enacting laws and 
regulations that are aligned with treaty obligations while 
constructively facilitating innovation.
    Many significant accomplishments have been achieved within the 
parameters of the Outer Space Treaty. Benefits directly accrue to the 
space sector and all State Parties. However, because of the far reach 
of space applications and their intrinsic role in improved quality of 
life,\4\ all of humankind benefits from responsible behaviour in space. 
Withdrawal from the treaty could invite a number of undesired outcomes, 
including inter alia far greater uncertainty to the thriving private 
sector, or withdrawal by other State Parties, or loss of credibility in 
the international space community, or worse.
---------------------------------------------------------------------------
    \4\ Space applications will figure prominently in the achievement 
of the United Nations Sustainable Development Goals for 2030.
---------------------------------------------------------------------------
3. National Implementation of International Obligations
    Article VI of the Outer Space Treaty creates the international 
legal responsibility of states to ensure treaty compliance with regard 
to the activities of their governmental agencies and non-governmental 
entities in outer space. Further, the activities of its non-
governmental entities trigger a State's authorization and continuing 
supervision (``shall require''). This direct responsibility and 
liability for damage on the international plane for the activities of 
nongovernmental actors is absolutely unique in international law, and 
is the impetus for supervision on all nongovernmental actors in the 
space domain. Further, Article VI accountability has served the private 
sector, both in the United States and internationally, in providing a 
level of transparency, legal certainty, and responsibility in the 
development of space applications. The United States has maintained 
Article VI responsibility with the promulgation of a well-developed res 
of domestic law overseeing launches and re-entries, the 
telecommunications industry, and earth observation activities.
4. Conclusion
    In conclusion, the International Institute of Space Law would like 
to recognize the Subcommittee's serious inquiry into the appropriate 
level of legislation necessary to maintain treaty compliance in 
furtherance of the United States' international responsibility while 
also fostering an environment of innovation. We further remind this 
Subcommittee of the lasting and fundamental importance of this 
foundational and visionary treaty governing the activities of States, 
and of the non-governmental actors they are responsible for, in the 
peaceful exploration and use of outer space.
            Respectfully,

President of the International Institute of Space Law
Prof. Dr. Kai-Uwe Schrogl (Germany)

Vice-President of the International Institute of Space Law
Prof. K.R. Sridhara Murthi (India)

Treasurer of the International Institute of Space Law
Prof. Dennis Burnett (United States)

Executive Secretary of the International Institute of Space Law
Prof. Dr. Diane Howard (United States)

Board of Directors of the International Institute of Space Law
Prof. Dr. Setsuko Aoki (Japan)
Prof. Dr. P.J. Blount (United States)
Prof. Dr. Frans G. von der Dunk (Netherlands)
Prof. Dr. Marco Ferrazzani (Italy)
Prof. Dr. Steven Freeland (Australia)
Prof. Joanne Irene Gabrynowicz (United States)
Prof. Dr. Stephan Hobe (Germany)
Prof. Dr. Mahulena Hofmann (Czech Republic)
Ms. Corinne Jorgenson (United States)
Dr. Martha Mejia-Kaiser (Mexico/Germany)
Prof. Sergio Marchisio (Italy)
Ms. Elina Morozova (Russia)
Prof. Dr. Lesley Jane Smith (United Kingdom
Dr. Milton `Skip' Smith (United States)
Prof. Dr Maureen Williams (UK/Argentina)
Prof. Zhenjun Zhang (China)
                                 ______
                                 
                                        Lifeboat Foundation
                                           Minden, NV, June 5, 2017
Commerce, Science, and Transportation
Committee Space, Science, and Competitiveness Subcommittee
United States Senate
Washington, DC.

To: U.S. Senate Committee on Commerce, Science, and Transportation
Senator John Thune, Chairman
Senator Bill Nelson, Ranking Member

CC: U.S. Senate Subcommittee on Space, Science, and Competitiveness
The Honorable Senator Ted Cruz, Chairman
The Honorable Senator Edward Markey, Ranking Member

Subject: Letter for the Congressional Record from the Hearing: 
            ``Reopening the American Frontier: Exploring How the Outer 
            Space Treaty Will Impact American Commerce and Settlement 
            in Space''

Mr. Chairman, Ranking Member Nelson, and Members of the Committee,
                   Statement from Lifeboat Foundation
Extolling Global Leadership and New Space Opportunity
    The Lifeboat Foundation is a non-profit organization dedicated to 
encouraging scientific advancements while helping humanity survive 
existential risk.

    In June 2018 the UNISPACE+50 international conference will 
establish the Fourth International Dialog on the Peaceful Uses of Outer 
Space.
    This UN based platform will celebrate the achievements of the 
original Outer Space Treaty since inception in 1967. The objective of 
the program is to evaluate changing conditions and identify potentials, 
within the advancing technological frontiers.
    America's leadership influence may be placed at risk regarding the 
Geneva program for the 50th Anniversary of the Space Treaty. As there 
is no consensus from the multi-billion dollar New Space industries, it 
is essential to situate America for global space leadership through an 
open discussion based on opportunities, and not legislative 
restrictions. The time frame is immediate. This perspective includes a 
guiding political platform describing an innovative U.S. policy for 
leadership and international engagement. Cohesive national objectives 
need to be developed before the UNISPACE+50 conference takes place next 
June in Geneva. Developments such as the creation of associated 
agreement and regulatory frameworks for space-based issues, will be 
suitably upheld, and enabled through this motivated public initiative.
    The space development paradigm is exponential and highly relevant: 
Topics that can be addressed within the UN auspices, will include 
national and global security platforms, space based information and 
communication technology (ICT) for global development, and global 
partnership for manned space venture and settlement.
    Opportunities and interests are extensive: the transition to 
commercial launch, the achievement of space-based infrastructures, 
manned space settlements and the upcoming trips to Mars. This paradigm 
shift clearly demonstrates the need for not only international 
engagement and inter-agency collaboration, but also for original 
public/private partnership dynamics. In this way we will create an 
optimal climate for the best peaceful global opportunities.
    The current expectation is that the revisionary basis within the 
treaty umbrella will be addressed through the preparation of a number 
of rider and associated agreements. These types of negotiated 
agreements, unless inclusively orchestrated would normally take several 
years for placement. It is also apparent that U.S. policy might move 
ahead in advance of the UNISPACE+50 program, and position for a notable 
and extensive global leadership role.
    Topics of national import, which are under consideration, will 
include the role of next generation and quantum communications, the 
establishment of a secure international cyberspace and the significant 
value of distributed ICT systems for global development, economic 
growth and new fiat currencies. This process will address the research 
and development phases and objectives of an incremental and 
collaborative space based architecture, along with the use of advanced 
and sensitive technologies. These issues may include hypersonic flight, 
the discussion for nuclear deterrence, and the global non-proliferation 
process, supporting the tenet of the original treaty.
    The recommendation of Lifeboat Foundation is that a significant 
policy making potential can be readily assumed and brought forward by 
the U.S. administration ahead of the UNISPACE+50 conference in 2018. 
Innovative leadership at this early stage will greatly facilitate the 
many and forthcoming levels of engagement.
    Lifeboat Foundation is currently making arrangements to bring 
forward an original forum dedicated to the establishment of U.S. space 
leadership for the international community. This event will be held at 
the United States Institute of Peace in Washington, D.C., sponsored by 
several member's of the U.S. Congress and Senate, non profit 
communities and commercial entities.
    We invite your participation and support. In particular, we feel 
that time scales are very limited and that considerable problem solving 
effects, may be suitably provided, by looking towards the establishment 
of an expedient ``short path'' U.S. space policy platform. The present 
window of opportunity from June 2017 to June 2018 can best be utilized 
through a consolidated political front, which acknowledges both the 
immense value of U.S. technological export, and the opportunity 
represented by global collaboration and partnership.
    We much appreciate the notable and ongoing discussion for the Outer 
Space Treaty, within U.S. Senate and Congress, especially in regard to 
the development of the nascent markets.
            Sincerely
                                                        Eric Klein,
                                                   Lifeboat Foundation.
                                 ______
                                 
     Response to Written Question Submitted by Hon. Bill Nelson to 
                            James E. Dunstan
    Question. What are some of the norms and standards that we should 
be establishing domestically in order to promote the types of 
international norms and standards that would be conducive to commercial 
activity in space?
    Answer.
    Thank you for allowing me to respond to your question above. You 
are correct that the United States can provide leadership 
internationally by establishing enforceable domestic norms and 
standards for space activities that other countries can follow that can 
result in either the establishment of customary international law, or 
provide the basis for new international agreements. These norms and 
standards can be broken down into four categories:

  1)  Ensure no violations of the key provisions of the OST;

  2)  Open coordination of activities between U.S. parties;

  3)  Tackling the orbital debris ``tragedy of the commons;'' and

  4)  Balancing priorities between exploration and use--and ensuring 
        science isn't squeezed out.
Ensure No Violations of the Key Provisions of the Outer Space Treaty
    Congress should enact a regulatory framework that ensures that all 
Americans abide by the provisions of the Outer Space Treaty--which, in 
turn, will encourage other countries to do the same, and thus protect 
U.S. interests. While I have argued that Article VI is not self-
executing, there are other provisions in the OST that are self-
executing:

  a)  Space and celestial bodies are not subject to claims of 
        appropriation by means of use or occupation (Article II);

  b)  No placing of nuclear weapons or weapons of mass destruction in 
        outer space (Article IV);

  c)  No establishing military bases on the Moon or other celestial 
        bodies (Article IV);

  d)  Avoiding harmful contamination (Article IX); and

  e)  Avoiding harmful interference (Article IX).

    The first three are simple to implement in a future regulatory 
regime: just add these prohibitions as conditions to the issuance of 
any authorization/registration, and mandate instant revocation of the 
authorization/registration for any breaches of these prohibitions.
    The last two prohibitions contained in the OST will require further 
clarification either through statute or regulation. Whichever agencies 
are granted jurisdiction to issue regulations will need to carefully 
define terms and develop standards in this area.\1\
    Harmful Contamination. The Treaty does not define the words 
``harmful'' or ``contamination''. This means Congress, the State 
Department and domestic regulators will need to wrestle with questions 
such as:

   ``What constitutes contamination?'' Is disturbing the 
        surface of a Celestial Body \2\ ``harmful contamination''? If 
        so, then the United States violated Article IX in landing six 
        Apollo missions on the surface of the Moon--and Article I's 
        talk of the freedom to use and explore space would be 
        meaningless.

   ``What constitutes harm?'' Is any change to a space 
        environment a harm? Again, obviously not. The term ``harmful'' 
        must involve some relative weight--but of what factors?

   ``Harmful to whom?'' Is the harm to the environment the 
        standard, or does harm come into play only if the activity will 
        harm future humans visiting the Celestial Body? There is an 
        argument that this provision relates back to the ``no nukes'' 
        provision in Article IV and that contamination must impact 
        human activities.\3\ An alternative interpretation is that 
        human biological  contamination of Celestial Bodies must be 
        limited so that such contamination not lead to ``false 
        positives'' in the search for extraterrestrial life.\4\

   ``Contamination to what?'' Some argue that future visits to 
        the Apollo sites must be limited or prohibited outright because 
        to do so would contaminate these historical areas.\5\

   ``How non-contaminated must a mission be?'' NASA has 
        interpreted the ``no harmful contamination provision'' to mean 
        that its missions to Mars must guard against microbial 
        contamination as well, limiting the presence of bacterial 
        spores on any surface to no more than 300,000.\6\ (Obviously, 
        this number reflects some kind of weighing test.) ESA, the 
        European Space Agency, follows similar measures. Are those same 
        measures appropriate for private missions, and appropriate 
        regardless of the destination of the mission? Or should they be 
        tailored to the context of the mission?

    Whatever agency ends up processing mission authorization 
applications (or registrations) must be staffed with experts capable of 
crafting a balanced approach to ``harmful contamination'' that balances 
protection of the space ecosphere with the right to exploration and use 
of space and Celestial Bodies that is guaranteed by Article I of the 
OST.
    Harmful Interference. Although often confused or conflated with 
harmful contamination, harmful interference relates to the activities 
of humans vis-a-vis each other in outer space (rather than the impact 
of human activities on the space environment). Article I implies this 
principle: ``Outer space, including the Moon and other celestial 
bodies, shall be free for exploration and use by all states''--i.e., 
without interference. And Article IX makes this principle explicit:

        If a State Party to the Treaty has reason to believe that an 
        activity or experiment planned by it or its nationals in outer 
        space, including the Moon and other celestial bodies, would 
        cause potentially harmful interference with activities of other 
        States Parties in the peaceful exploration and use of outer 
        space, including the Moon and other celestial bodies, it shall 
        undertake appropriate international consultations before 
        proceeding with any such activity or experiment. A State Party 
        to the Treaty which has reason to believe that an activity or 
        experiment planned by another State Party in outer space, 
        including the Moon and other celestial bodies, would cause 
        potentially harmful interference with activities in the 
        peaceful exploration and use of outer space, including the Moon 
        and other celestial bodies, may request consultation concerning 
        the activity or experiment.''

    While the activities of nationals are specifically mentioned in the 
first clause,\7\ at its core, Article IX relies upon government-to-
government diplomatic activity without the force of law. The United 
States could begin to establish international norms for adjudicating--
and avoiding--interference disputes by:

  a)  Establishing a standard for defining ``harmful interference.'' 
        Harmful interference should be limited to activities of one 
        party that interrupt or impinge the operations of another party 
        or cause actual physical harm to a space object that negatively 
        impacts the operations of the second party. Harmful 
        interference could also include radio frequency interference--
        as radio frequencies will be critical to any space mission. 
        Congress should make clear that economic harm, absent a 
        physical harm (radio frequencies, too, are issues of pure 
        physics), does not rise to the level of harmful interference.

  b)  Establishing basic interference parameters for U.S. domestic 
        operations (e.g., orbital distance separations, and lunar 
        operations separation).

  c)  Declaring that principles of terrestrial tort law apply to outer 
        space operations, and establish jurisdiction in the Federal 
        district courts to hear claims of interference between U.S. 
        parties. Ultimately, the goal should be to promote tort law as 
        the basis for resolving disputes between U.S. and foreign 
        parties, as well--to have a single common law for space and a 
        mechanism for resolving U.S.-foreign disputes that is more 
        effective, faster and cheaper to use than the state-to-state 
        coordination mechanism contemplated by Article IX. As much as 
        any particular private U.S. company might like to have the 
        weight of the U.S. government behind it to enforce its rights 
        to a particular mission, such a heavy-handed approach 
        (empowering the government to pick winners and losers) would be 
        costly for the government to engage in, and simply not 
        necessary given the well-established field of tort law.

    Are there missions that should not be authorized simply because the 
``first mover'' will preclude other users? For example, several 
geographic points at the lunar south pole are highly valuable. There 
appears to be only one good ``down ramp'' into Shackleton Crater, for 
example. Would the U.S. authorize a company to place a base on this 
down ramp with a concomitant interference-free zone that would preclude 
anyone else from using that down ramp--even if this meant giving that 
company an effective property right over the entire crater? Similarly, 
there are a few ``peaks of eternal light'' surrounding Shackleton 
Crater where operators would want to set up both communications and 
solar collectors. These areas are quite small, however, and multiple 
users might not be able to place installations there. How should such 
``prime real estate'' be treated for non-interference purposes?
Open Coordination of Activities
    In order to minimize ``harmful interference,'' Congress should 
require an open coordination of activities between space operators. 
This is already done by the FAA/AST when it comes to launch/reentry 
licenses (to ensure that objects are not launched into conflicting 
orbits) and by the FCC when it comes to spectrum use in outer space.\8\ 
Whatever regulatory regime is established for innovative space 
activities, the overseeing agency should require all operators seeking 
authorization or (as we have proposed) filing for registration \9\ to 
describe their planned mission with sufficient specificity to allow 
later operators to develop non-interfering mission scenarios. That 
agency should also be given the power to require that operators 
coordinate their activities so as to allow later operators to conduct 
activities in a non-interfering way, if possible. For example, an 
entity seeking authority to mine the volatiles at the south pole of the 
Moon should be required to coordinate those activities with later 
operators seeking authority to do the same thing. Similarly, an 
operator seeking to mine asteroids should be required to specify what 
asteroid is to be mined, and the method of resource extraction. That 
way, a subsequent operator could plan a similar mission accordingly (or 
determine that multiple mining operations on that asteroid are not 
feasible because of the size of the asteroid \11\ or the method of 
harvesting the resources (e.g., a ``bag and blow'' approach)).\12\
    The difficulty with the coordination process, as the FCC's 
experience has made clear, is dealing with the problem of 
``warehousing'' a space resource. Consider this example:



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    Asteroid 2006RH120 has been ``captured'' by the Earth-Moon system 
and a mission in 2028 could rendezvous and land on it with a Delta-V of 
only 58 m/sec (i.e., extremely small amount of thrust needed). 
2006RH120 is only 2.3 x 7.4 meters, meaning that it is highly unlikely 
that multiple operators could mine it without interfering with each 
other. If Company A seeks authorization to mine the asteroid and 
specifies a 2028 rendezvous date, would that preclude Company B from 
seeking authorization to rendezvous with it in 2026 using a higher-
energy/less efficient trajectory? What if Company B agreed that it 
would vacate the premises prior to Company A landing in 2028? What if 
the mission calls for a ``bag and blow'' approach such that there would 
be virtually nothing left of 2006RH120 by the time Company A arrives?
    On-orbit servicing presents another example where open coordination 
is necessary. One person's servicing satellite is another person's 
ASAT: any vehicle with the capability to match orbits, rendezvous and 
dock with another object could easily be used to disable, destroy, and/
or steal a satellite. Such operations must be conducted in such a 
manner that all space operators know where that servicing satellite is, 
and what it is doing, at all times.\13\
    Regulations will need to be crafted to account for these types of 
issues. Ideally, authorizations would not be granted unless/until the 
entity can demonstrate that they can actually perform the mission. For 
satellites, the FCC has set up a system of ``milestones'' against which 
operators must purchase a bond which is forfeited in the event that the 
satellite is not timely launched. The complication here is that there 
is the added element of transit time for asteroid missions, where a 
later-authorized mission could beat a prior-authorized mission. Is the 
first-to-file applicant always the winner? Is that a rational approach 
if a later applicant can demonstrate that it can perform the mission 
sooner?
    By adopting domestic legislation and regulations that establish a 
responsibility for operators to openly coordinate their activities as a 
norm, the United States can urge other countries to adopt similar 
standards--and, as proposed in my testimony, could effectively require 
adoption of similar standards as a condition of recognizing another 
country's legislation as consistent with that of the U.S. in a system 
of interlocking domestic legislation modeled on the Deep Seabed Hard 
Mineral Resources Act of 1979. Coupled with the adoption of tort law 
concepts to interference, discussed above, this would go a long way 
toward eliminating instances of open conflict between innovative space 
operators.
Tackle the Orbital Debris ``Tragedy of the Commons''
    As Douglas Adams famously wrote in The Hitchhiker's Guide to the 
Galaxy: ``Space is big. Really big. You just won't believe how vastly, 
hugely, mind-bogglingly big it is. I mean, you may think it's a long 
way down the road to the chemist, but that's just peanuts to space.'' 
He wasn't kidding.
    The total area of the 800 kilometer orbital sphere \14\ encompasses 
664 million square kilometers (or 411 million square miles) of area. 
Were the approximately 1000 currently operating satellites all bunched 
in this one orbit (which they obviously are not), each would have some 
664,000 square kilometers (411,000 square miles) in which to 
operate.\15\ The mindset of many in the early years of spaceflight was 
that space was so vast that the likelihood of two objects actually 
colliding was so remote as to not be worth worrying about, and 
certainly not worth taking into consideration when planning space 
activities. This became known as the ``Big Sky'' theory of space 
operations.\16\ Recent debris generating collisions (both accidental 
and intentional) have demonstrated, however, that the days of the ``Big 
Sky'' theory are over--if the theory ever had any validity to begin 
with. Today satellites must operate in orbits that not only contain 
1000 other operating satellites, but 50 years' worth of rocket bodies, 
derelict satellites, the flotsam and jetsam created by on-orbit 
explosions,\17\ and even debris created by routine space deployment 
activities, where pieces just float away from a vehicle while deploying 
payloads or during normal operation.\18\
    Finally, and most importantly, the orbital debris situation is not 
static. While a certain number of pieces of debris reenter the 
atmosphere each year, countries continue to launch vehicles and create 
more debris on a yearly basis. Yet this accounts for a relatively slow 
and somewhat manageable increase in orbital debris. This steady state 
ecosystem of junk is upset, however, whenever there is a major 
collision incident. On average, as discussed above, such incidents 
create between 2,500 and 3,500 new trackable pieces of junk. The fear, 
which is not yet predictable, is if such major collision events 
continue, there may be a cascade effect--``the Kessler Syndrome''--
whereby collision events and new debris occur at exponentially 
increasing rates, creating huge clouds of debris and rendering certain 
orbits so dangerous as to be useless.\19\
    The United States has taken a lead internationally on orbital 
debris mitigation, through the work done at NASA, as well as being a 
founding member of the Inter-Agency Space Debris Coordination Committee 
(IADC).\20\ Any new regulatory regime should continue this leadership. 
The regime should also strive to consolidate, harmonize, and streamline 
regulations in this area. Currently, there are at least five separate 
regulatory regimes for orbital debris mitigation that, while all based 
on the NASA standards, nonetheless differ slightly in approach and 
reporting requirements.\21\ It is thus possible for a mission to have 
to submit multiple debris mitigation plans to different agencies.
    Most important, the United States must take the lead in actually 
enforcing debris mitigation standards. The DoD routinely waives its 
debris mitigation guidelines for its launches, and the FCC has allowed 
Iridium to operate 10 of its satellites until they ``run dry,'' rather 
than requiring Iridium to de-orbit or move those satellites to a 
``graveyard'' orbit.\22\ If the U.S. wishes to lead internationally in 
establishing norms and standards, then it must enforce its own 
regulations, before it can demand that the rest of the world also 
``gets tough'' on orbital debris.\23\
    Finally, the United States must begin to establish norms and 
standards for orbital debris remediation (the actual removal of orbital 
debris). This could include a statutory declaration that any U.S. 
registered abandoned space object that poses a potential threat to 
space navigation can be removed, under maritime law concepts of 
``salvage and finds.'' \24\ The United States should also begin to 
explore ways of creating Public/Private Partnerships to incentivize the 
private sector to actively remove derelict space objects.\25\ One 
possible source of funding for a ``bounty pool'' would be the 
approximately $15 million annually the FCC collects in regulatory fees 
from satellite operators.\26\ Any regulatory regime next adopted by 
Congress should direct the applicable agency to study private sector 
approaches to orbital debris remediation.
Balance Priorities Between Exploration and Use (ensuring science isn't 
        squeezed out)
    Article I of the OST declares that outer space shall be free for 
both exploration and use by all nations. In the rush to encourage 
American businesses to continue to develop an outer space economy that 
will benefit all humanity (and increase the tax base of the United 
States), the United States cannot overlook or downplay the important 
role exploration will continue to play in outer space. As a species, we 
have only just begun to learn about our planet, our solar system, and 
the universe we inhabit. The continued exploration of outer space, both 
by government actors and private companies, must be encouraged and 
protected.
    Any new regulatory regime must act in a way that both encourages 
private sector ``use'' of outer space but also protects scientific 
``exploration.'' We cannot repeat the mistakes the FCC made late in the 
last century of reallocating significant spectrum from space uses to 
terrestrial uses, simply because, at that time, there was less activity 
in space and a desire for more terrestrial services.\27\ The relevant 
agency or agencies should be charged by Congress to incorporate the 
needs of the science community into any authorization regime. That is 
not to say that science can ``veto'' private activities in space: the 
science community must participate in the same open coordination 
process that will be required of private actors.\28\
    This is a critical standard to adopt domestically so that worldwide 
the important scientific exploration of outer space is protected--and, 
again, a requirement that could be a core part of a system of 
interlocking domestic legislation adopted by spacefaring nations 
piecemeal, without any need to re-open the Outer Space Treaty for 
negotiation or even to negotiate a new space law convention.
References
    \1\ The contamination aspects of orbital debris are discussed 
separately below.
    \2\ The term ``Celestial Body'' also is not defined in the OST. 
There was some discussion at the time of the negotiation of the OST 
that Celestial Body should be defined to limit it only to natural 
objects in space that are not capable of being moved from their current 
orbits. See E. Fasan, Asteroids and other Celestial Bodies Some Legal 
Differences, 26 J. Space L. 33 (1998) (arguing that early space law 
writers and possibly the negotiators of the OST limited the definition 
of ``Celestial Body'' to include only the planets and major moons).
    \3\ It should be noted that prior to the OST negotiations, the 
United States had carried out ``Project West Ford'' (also known as 
``Project Needles'') in which the U.S. launched 480,000,000 1.78 cm 
long copper needles into near polar orbits at between 3,500 and 3,800 
kilometers (2,200-2,400 miles) to determine whether an artificial 
ionosphere could be created such that radio waves could be bounced off 
the needles allowing for long distance (over the horizon) radio 
communications. International scientists objected to the mission, 
fearing that the needles would negatively impact astronomy programs. 
Many legal scholars point to Project West Ford as the catalyst for the 
consultation requirements of Article IX, but tie that provision to the 
non-interference language of Article IX, not the no harmful 
contamination provision. See, e.g., D. Terrill, ``The Air Force Role in 
Developing International Space Law,'' Air University Press, 1999, 
available at https://media.defense.gov/2017/Apr/07/2001728438/-1/-1/0/
B_0069_TERRILL
_OUTER_SPACE_LAW.PDF (last visited 6/22/17); see also J. Gabrynowicz & 
S. Langston, ``A Chronological Survey of the Development of Art. IX of 
the Outer Space Treaty,'' Special Topics in Aerospace Law Series, no. 
3, a Supplement to the Journal of Space Law, available at http://
www.spacelaw.olemiss.edu/resources/pdfs/article-ix.pdf (last visited 6/
22/17)
    \4\ See M Williamson, ``A Pragmatic Approach to the `Harmful 
Contamination' Concept in Art. IX of the Outer Space Treaty,'' 5th 
Eilene M Galloway Symposium on Critical Issues in Space Law, December 
2010, available at: http://www.spacelaw.olemiss.edu/events/pdfs/2010/
galloway-williamson-paper-2010.pdf (last visited June 13, 2017).
    \5\ See ``NASA's Recommendations to Space-Faring Entities: How to 
Protect and Preserve the Historic and Scientific Value of U.S. 
Government Lunar Artifacts,'' Released July 20, 2011, available at: 
https://www.nasa.gov/pdf/617743main_NASA-USG_LUNAR_HISTORIC
_SITES_RevA0508.pdf (last visited June 13, 2017).
    \6\ See https://mars.nasa.gov/mer/technology/
is_planetary_protection.html (last visited June 13, 2017).
    \7\ Some space law scholars argue that private activities are only 
addressed in the first clause of Article IX, and that private citizens 
have no right to petition their governments to complain about an 
activity that might interfere with that private citizen's space 
activities. See http://groundbasedspacematters.com/index.php/2017/03/
31/the-non-interference-provision-of-article-ix-of-the-outer-space-
treaty-and-property-rights/ (writings of Laura Montgomery, last visited 
June 13, 2017).
    \8\ See, e.g., proposed Order In the Mater of WorldVu Satellites 
Limited (OneWeb), available at http://transition.fcc.gov/
Daily_Releases/Daily_Business/2017/db0601/DOC-345159A1.pdf (last 
visited June 13, 2017) (requiring operators of NGSO systems to 
coordinate their operations and frequency usage to allow for the flying 
of multiple constellations of satellites).
    \9\ TechFreedom has previously advocated for a ``Mission 
Registration'' approach rather than the ``Mission Authorization'' 
approach advocated for by the Obama Administration in response to 
Section 108 of the CSLCA. For the purposes of this section, the type of 
regulatory regime is not critical to this analysis.
    \11\ Only one operator might be able to mine a small asteroid as 
depicted below in this NASA concept image.


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    \12\ One approach, depicted above in a NASA concept image, is to 
capture the asteroid in a bag and then blow it up to extract the 
resources, again, making it virtually impossible for two entities to 
mine the same asteroid.
    \13\ For example, in the proposed WorldVu order, supra note 8, the 
FCC is proposing to require that OneWeb publish the orbital parameters 
(ephemeris data in two-line orbital element format) at least once every 
three days. Similar regulations could be adopted requiring any on-orbit 
servicing mission to publish in near-real time the orbital parameters 
of their service vehicles and any intended altitude or plane changes.
    \14\ The 800 kilometer orbit was chosen for this calculation 
because it is considered one of the more crowded orbits.
    \15\ This calculation is a significant oversimplification since in 
addition to assuming that the approximately 1000 operating satellites 
all occupy the 800 kilometer orbit, the calculation assumes that all 
are exactly orbiting on the surface of a perfect sphere 800 kilometers 
above the mean surface of the Earth (and hence 7271 kilometers above 
the center of the Earth). Therefore, it only calculates the square 
kilometers surface area of the sphere. Since satellites don't operate 
at exactly the same orbital altitude, even within a designated orbit, 
and since orbits aren't entirely circular (the apogee--or high point--
of an orbit is usually slightly different than the perigee--or low 
point), to be more accurate the calculation should be made using a 
three dimensional slice of sphere centered around 800 kilometers above 
the surface of the Earth, making the amount of ``Big Sky'' surrounding 
each satellite appear much larger. However, what also makes the 
calculation incorrect is the assumption that somehow all of satellites 
are flying ``in formation,'' while in reality, they are orbiting in a 
variety of directions (predominately West to East, North to South 
(polar) or South to North (polar)), such that their orbits cross each 
other.
    \16\ The origin of the term ``Big Sky'' is unknown. Most likely it 
comes from aviation traffic modeling where the assumption is that two 
randomly flying bodies are unlikely to collide because of the size of 
the three dimensional space in which they operate. The earliest 
reference this author can find to such a theory applied to space is the 
Survey of Space Law, Staff Report of the Select Committee on 
Astronautics and Space Exploration, H. R. Doc. No. 89, 86th Cong., 1st 
Sess., at 7 (1959) [hereinafter SURVEY OF SPACE LAW] (where Dr. John P. 
Haden, the director of Project Vanguard is quoted as saying ``space is 
a very big area'').
    \17\ Between 1961 and 1995, for instance, 124 fragmentation events 
were cataloged. See Office of Science and Technology Policy, 
Interagency Report on Orbital Debris, 12 (Nov. 1995), available at 
http://orbitaldebris.jsc.nasa.gov/library/references.html.
    \18\ One of the earliest and most publicized pieces of space debris 
was NASA astronaut Ed White's glove, which he lost on the first 
American spacewalk during the Gemini 4 flight (June 3, 1965). See 
National Aeronautics and Space Administration, Gemini 4, http://
nssdc.gsfc.nasa.gov/nmc/masterCatalog.do?sc=1965-043A (last visited 
Sept. 12, 2013). Fortunately, the Gemini 4 capsule was orbiting at a 
relatively low altitude (166 x 290 km orbit), such that the glove 
reentered the atmosphere within a month. For a look at eight 
interesting (tagged as ``weird) pieces of orbital debris, see Clara 
Moskowitz, Lost in Space: 8 Weird Pieces of Space Junk, WIRED (Feb. 13, 
2013), http://www.wired.com/wiredscience/2009/02/spacestuff/.
    \19\ The ``Kessler Syndrome'' is named after (and not directly by), 
retired NASA engineer Donald J. Kessler. According to Kessler, the term 
was coined by a colleague, John Gabbard, a NORAD analyst. See Donald J. 
Kessler, The Kessler Syndrome (Mar. 8, 2009), http://webpages
.charter.net/dkessler/files/KesSym.html. See also Donald J. Kessler & 
Burton G. Cour-Palais, Collisional Frequency of Artificial Satellites: 
The Creation of a Debris Belt, Paper 8A0210, 83(A6) J. GEOPHYSICAL 
RES., 2637 (June 1, 1978); Donald J. Kessler, Collisional Cascading: 
The limits of population growth in low earth orbit, 11(12) Advances In 
Science Res., 63-66 (1991). See also James Rendleman, Space Traffic 
Management--Private Regulation, in Proc. of the AIAA Space 2012 Conf. & 
Expo., n. 6, AIAA 2012-5124 (Sept. 2012), http://arc.aiaa.org/doi/abs/
10.2514/6.2012-5124. For a fascinating PBS interview with Donald 
Kessler about orbital debris and the ``Kessler Syndrome,'' see https://
www.youtube.com/watch?v=LaKz8VDkDkI (last visited June 15, 2017).
    \20\ http://www.iadc-online.org/.
    \21\ Compare, 14 C.F.R. Sec. 417.129 (FAA/AST orbital debris 
mitigation standards for launch/reentry); 47 C.F.R. Sec. 25.114(d)(14) 
(FCC regulations or orbital debris mitigation for satellites); 15 
C.F.R. Part 960, Appendix 1: C (NOAA remote sensing orbital debris 
requirements; NASA-STD-8719.14A (74 pages), which puts into effect NASA 
Procedural Requirement 8715.6, and includes reference to NASA-Handbook 
(NASA-HDBK) 8719.14 (NASA orbital debris mitigation guidelines); DoD 
Directive 3100.10 (Space Policy), 2012; DoD Instruction 3100.12 (Space 
Support), 2000 (DoD guidelines on orbital debris mitigation).
    \22\ See Iridium Constellation LLC, DA 14-1118, released July 31, 
2014.
    \23\ For example, in 2002, ESA launched Envisat, an 8,000 kilogram 
Earth observation satellite into the highly crowded 790 km polar orbit. 
At 26 meters x 10 meters, by 5 meters, it is one of the largest 
satellites orbiting Earth. It had an expected operational life of five 
years, but ESA continued to operate it for an additional five years. In 
April of 2012, ground controllers lost contact with the satellite. 
Although being operated well beyond its expected operational life, no 
efforts were made to deorbit the satellite, move it to a safer orbit, 
or safe the fuels and batteries onboard. It is estimated that the 
satellite will remain in orbit, and a danger to space navigation, for 
between 100 and 150 years. ESA's response to why nothing was done to 
prepare Envisat for its inevitable end of life? According to one 
report, ``ESA officials insist that the international guidelines on 
disposal of debris were not in force when Envisat was designed.'' See 
Peter B. de Selding, ``Envisat to Pose Big Orbital Debris Threat for 
150 Years, Experts Say,'' SPACE NEWS (July 26, 2010), at 1, http://
www.spacenews.com/article/envisat-pose-big-orbital-debris-threat-150-
years-experts-say.
    \24\ For a fuller discussion of the application of the laws of 
salvage and finds to outer space, see J. Dunstan, ``Space Trash:'' 
Lessons Learned (and Ignored) from Space Law and Government, 39 J. 
Space Law 23 (2013).
    \25\ For one approach to a ``bounty system'' for orbital debris, 
see J. Dunstan and B. Werb, Legal and Economic Implications of Orbital 
Debris Removal: A Free March Approach, presented at the International 
Conference on Orbital Debris Removal hosted by DARPA, December 8-10, 
2009, available at: https://spacefrontier.org/wp-content/uploads/2009/
12/Legal-and-Economic-Implications-of-Orbital-Debris-Removal-A-Free-
Market-Approach.pdf (last visited June 16, 2017).
    \26\ See Assessment and Collection of Regulatory Fees for Fiscal 
2017, Notice of Proposed Rulemaking, FCC 17-62, p.22 (released May 23, 
2017). This annual regulatory fee is in addition to substantial 
application fees operators have to pay the FCC to receive licenses.
    \27\ See J. Dunstan, Earth To Space--I Can't Hear You: Selling Off 
Our Future To The Highest Bidder, Proceedings of the Thirteenth Space 
Studies Institute/Princeton Conference on Space Manufacturing, 1997.
    \28\ Coordination between space telecommunications uses and radio 
astronomy provides a good example of how the needs of science can be 
accommodated at the same time private enterprise is allowed to operate 
in space. See WorldVu Draft Order, supra n. 8,  10 (reminding OneWeb 
of its obligations to coordinate with the radio astronomy community).
                                 ______
                                 
     Response to Written Question Submitted by Hon. Bill Nelson to 
                            Laura Montgomery
    Question. What are some of the norms and standards that we should 
be establishing domestically in order to promote the types of 
international norms and standards that would be conducive to commercial 
activity in space?
    Answer. The norms that the United States should establish 
domestically to promote commercial activity should recognize private 
property rights and protect the activities of commercial operators from 
interference by others.
    Property rights: Article II of the Outer Space Treaty does not 
prohibit commercial or private ownership of land or extracted 
resources. Instead, it is silent regarding commercial interests, and 
directs its prohibition on appropriation at ``States Parties.'' 
Property rights serve as an incentive to investment. Without property 
rights and recognized title, a person cannot offer land as collateral 
on a loan or to obtain financing. Investors are more leery when there 
is no means of securitizing an investors' interests, and the operator 
itself is hampered in its ability to plan if it does not know that the 
property it is using and, hopefully, going to be spending decades on, 
will remain under its control. Accordingly, the United States should 
figure out a way to recognize property rights extraterrestrially.
    Interference and safety: Although commercial progress on reaching 
celestial bodies is still not very far along, orbital activities show 
how the U.S. is already a leader in seeking to avoid interference 
between spacecraft. U.S. Government practice and regulatory codes 
direct spacecraft to avoid collisions with other spacecraft and to 
prevent the generation of orbital debris. It is probably premature to 
worry about interference between commercial operators yet on celestial 
bodies.
                                 ______
                                 
     Response to Written Question Submitted by Hon. Bill Nelson to 
                          Matthew P. Schaefer
    Question. What are some of the norms and standards that we should 
be establishing domestically in order to promote the types of 
international norms and standards that would be conducive to commercial 
activity in space?
    Answer. Domestically, the U.S. space industry and U.S. Government 
should begin discussing standards to meet some key Outer Space Treaty 
(OST) obligation terms, such as harmful contamination in OST Art. IX. 
The U.S. State Department took the position in the recent Moon Express 
payload review that COSPARS standards do not create a floor for what 
will be compliant with OST Art. IX. In other words, COSPARS standards 
created in a scientific era are not the standards that need be complied 
with in a new commercial era. There is significant flexibility in how 
to define harmful contamination. Commercially-friendly standards, even 
ones create by industry groups, can be deferred to, as long as those 
standards do not stray from the treaty terms properly interpreted under 
the well-established rules of treaty interpretation codified in the 
Vienna Convention on the Law of Treaties, Art. 31 & Art. 32. Those 
interpretation rules place primary emphasis on the ordinary meaning of 
the terms of the treaty, and in this case lend themselves to 
significant flexibility in interpreting the term harmful contamination. 
If the United States industry comes to agreement on a standard, and 
that standard does not conflict with international obligations, then 
the U.S. Government, together with industry, can seek to promote those 
standards internationally. Congress can require deference to industry 
standards by the Executive Branch when delegating on-orbit 
authorization authority to the Executive Branch. Congress can also 
encourage exportation by the Executive Branch of those standards 
internationally.
    The U.S. industry and government may also wish to discuss standards 
on what constitutes harmful interference, but may wish to wait on 
developing too rigid of standards in this area until experience under 
actual cases is gained. The United States successfully 
internationalized (exported) its debris mitigation principles that now 
find reflection in the IADC and UNCOPUOS principles. Such exportation 
of standards and guidelines is eased when the United States shows good-
faith respect for international obligations. Congress' codification of 
the United States' long-standing OST interpretation allowing for 
property rights in extracted resources in 2015 (Public Law 114-90) in a 
manner that acknowledged and respected U.S. international obligations 
is an example of establishing interpretations and principles in a 
manner that increases and maximizes the chances of bringing other 
countries on-board with commercially-friendly interpretations and 
principles to the benefit of U.S. space companies.
                                 ______
                                 
    Response to Written Questions Submitted by Hon. Bill Nelson to 
                             Peter Marquez
    Question 1. What are some of the norms and standards that we should 
be establishing domestically in order to promote the types of 
international norms and standards that would be conducive to commercial 
activity in space?
    Answer. Background.
    The norms and standards set by the United States will have a 
profound impact on how the rest of the world reacts to commercial space 
activities. As history has indicated, the United States Government's 
approach to implementing its obligations under Article VI of the Outer 
Space Treaty in relation to highly innovative private space activities 
will influence the approach of the 100+ other Parties to the Treaty.
    The Treaty lays out some basic rules of the road for all actors in 
space, public or private. National implementing legislation is the 
necessary connection between international law and private space 
operators. To maintain this continuity across all space activities, and 
to preserve the global competiveness of the commercial space sector, it 
is imperative that the United States Government impose no more than is 
legally necessary to ensure conformity with the provisions of the Outer 
Space Treaty.
Recommendations
    First, I urge Congress to distinguish between measures that are 
legally required to implement the United States' obligations under the 
Outer Space Treaty, and those that are intended to further public 
policy interests.
    Policy-driven measures that would constrain private space activity 
must be carefully weighed against cross-cutting public policy interests 
in opening up entirely new space-based economies, with its tremendous 
potential for job creation and improvements to quality of life.
    As a former national security professional, I am well aware that 
the United States' national security interests may, in some cases, 
counsel for specific conditions on private space activities. It is 
imperative that any such conditions, and the process for evaluating 
commercial space activities in light of U.S. national security 
interests, be narrowly tailored--limited to major, specific national 
security threats, with procedural safeguards built in that prevent an 
endless and opaque review process that kills innovation, destroys 
investment, and cedes commercial innovation and technological 
development to non-U.S. actors. In this connection, we see elements of 
the recently introduced American Space Commerce Free Enterprise Act, 
H.R. 2809, as a step in the right direction.
    Measures to implement the United States Treaty obligations must be 
narrowly tailored to require no more than legally necessary for Treaty 
compliance. In this regard, we are encouraged by features of H.R. 2809, 
building in definite time tables, a presumption of approval, and 
authorizing only such conditions as legally necessary to ensure 
conformity with the Outer Space Treaty.
    Second, it is imperative that regulators not get too far ahead of 
the technologies and capabilities of the coming generation of 
commercial space activities, attempting to regulate based on their best 
guess of how technologies and activities will unfold. The government is 
not well placed to make informed guesses, and in many cases the 
commercial space sector will find the optimal technical solutions 
through a process of experimentation. This is an essential piece of our 
industry's innovation engine, and there is an ever-present risk of 
regulators inadvertently forcing suboptimal technical choices.
    Third, the United States should promote the foundational elements 
of the Outer Space Treaty as the key norms and standards for all 
international actors to follow and domestically enact, especially in 
accordance with Article VI. Key among them are the protections from 
harmful interference. We believe that it is in the best interest of all 
Nations to preserve the right of all actors to operate in space free 
from harmful interference from other activities.
    Regulatory Approach. Col. Melroy's testimony describes a regulatory 
approach where a few very high-level, performance-oriented requirements 
are complemented by industry standards that contain the details.

    Question 2. Could each of you please comment on whether such an 
approach would make sense for providing U.S. Government oversight and 
regulatory certainty for emerging commercial space activities that are 
not covered under existing regulations? And what should the role of 
government agencies be in, if any, in developing industry standards for 
commercial space activities?
    Answer. Recommendations.
    As the Outer Space Treaty lays down general principles, rather than 
specific requirements, there are many paths to conformity with each 
provision. Which path is commercially feasible (or optimal) will only 
become clear as capabilities near or mature.
    In many instances, private operators are much better placed to know 
the optimal means of complying with these broad principles.
    Therefore, industry should be proposing means of meeting OST 
principles, and Government confirming conformity with the treaty, 
rather than a top down approach.
    The Government has a role in publicly supporting these industry 
standards, with particular emphasis placed on supporting these 
standards in international discussions-bilaterally or multilaterally.
                                 ______
                                 
    Response to Written Questions Submitted by Hon. Bill Nelson to 
                               Mike Gold
    Question 1. What are some of the norms and standards that we should 
be establishing domestically in order to promote the types of 
international norms and standards that would be conducive to commercial 
activity in space?
    Answer. The U.S. should support an efficient and effective 
regulatory approach that meets Article VI obligations while ensuring 
that American commercial space activities avoid causing harmful 
interference with domestic or foreign operations. A process should be 
established that encourages innovation and investment while still 
protecting the safety of the environment in orbit and beyond. Moreover, 
the U.S. should set an example by continuing to involve the private 
sector in standard setting activities via Federal Advisory Committees 
and initiatives such as the DARPA Consortium for Execution of 
Rendezvous and Servicing Operations (``CONFERS'') program.

    Regulatory Approach. Col. Melroy's testimony describes a regulatory 
approach where a few very high-level, performance-oriented requirements 
are complemented by industry standards that contain the details.
    Question 2. Mr. Gold and Col. Melroy, what improvements are needed 
in space traffic management to enable expanded commercial activity in 
space?
    Answer. The U.S. Air Force has done a superb job of supporting the 
private sector with collision avoidance data. However, the Air Force 
and Department of Defense (``DoD'') are justifiably concerned with the 
amount of time and resources that have gone into such activities. The 
DoD should be allowed to remain focused on core national security 
responsibilities and has expressed the need for a civil agency, focused 
on safety, to step in and provide the private sector with potential 
conjunction warnings and related information.
    A pilot program for FY 2018 is being established for the DoD to 
work with the FAA Office of Commercial Space Transportation (``FAA 
AST'') to play this role. Via a partnership with the DoD, the FAA AST 
will begin the process of developing and demonstrating a system for 
sharing data with commercial entities while still providing robust 
protection for classified information. Moreover, the FAA AST will 
leverage innovative capabilities being developed by industry and 
academia to further enhance the existing U.S. Space Catalogue. The FAA 
AST hopes to combine all of this with a customer service-oriented 
approach emphasizing transparency, accuracy, and efficiency.
    If this demonstration is successful, the FAA AST can ensure that 
the private sector receives space traffic management information in a 
timely and easily accessible manner. This will allow commercial space 
activities to survive and thrive, while freeing the DoD to focus on its 
core national security mission.

    Regulatory Approach. Col. Melroy's testimony describes a regulatory 
approach where a few very high-level, performance-oriented requirements 
are complemented by industry standards that contain the details.
    Question 3. Could each of you please comment on whether such an 
approach would make sense for providing U.S. Government oversight and 
regulatory certainty for emerging commercial space activities that are 
not covered under existing regulations? And what should the role of 
government agencies be in, if any, in developing industry standards for 
commercial space activities?
    Answer. I believe the approach described by Col. Melroy is sound. 
Unlike mature industries, such as aviation, many emerging commercial 
space activities are so new that only the companies themselves have a 
comprehensive understanding of their systems. Moreover, emerging 
commercial space activities vary widely in nature and scope. Therefore, 
while it's possible and proper for the U.S. Government to establish 
high-level requirements, industry should develop the relevant details. 
This process has already been initiated via efforts supported by the 
Commercial Space Transportation Advisory Committee (``COMSTAC'') and 
the Commercial Spaceflight Federation.
    Beyond providing high-level, performance-oriented requirements, the 
U.S. Government has an important role to play in supporting and 
facilitating standards development. Many emerging space companies are 
run on a relatively tight budget and their personnel have limited time 
that can be dedicated to regulatory efforts and discussions. 
Consequently, the U.S. Government should provide funding and support 
personnel for standards development to ease the burden on private 
sector companies. For example, via the COMSTAC, the U.S. Government 
helps to provide a framework and some personnel support for standards 
development and regulatory discussions.
    Another example of a constructive role that the U.S. Government can 
play is the previously referenced DARPA CONFERS program. Under CONFERS, 
DARPA is sponsoring the creation of a ``secretariat'' that will support 
standards development involving both domestic and foreign entities. 
DARPA will provide funding to this secretariat, which will be operated 
by a nongovernmental organization. As the secretariat and field of 
satellite servicing evolves the government funding and support will be 
phased out. CONFERS presents an attractive model for the role of the 
U.S. Government in standards development that, if successful, could be 
replicated to address additional issues and activities.
                                 ______
                                 
    Response to Written Questions Submitted by Hon. Bill Nelson to 
                            Pamela A. Melroy
    Question 1. What are some of the norms and standards that we should 
be establishing domestically in order to promote the types of 
international norms and standards that would be conducive to commercial 
activity in space?
    Answer. There is an urgent need for norms and standards around 
certain activities in space operations--specifically, those that 
involve risk. A great example of how this can be successful can be seen 
in the NASA orbital debris mitigation standards, which began 
organically at NASA and then were adopted by the U.S. Government; all 
or most of those standards have been adopted internationally. They were 
successful for several reasons. First, they addressed a universal 
safety issue. Second, they were reasonable and had a path to be 
achieved without serious financial burden. Third, they were technically 
based. These are all important criteria to be considered for the 
future.
    FAA AST has already published some guidelines relative to 
commercial human spaceflight that will be very helpful going forward, 
and their advisory group COMSTAC is working on others related to launch 
safety. Other safety-based standards and norms could include rendezvous 
and proximity operations (such as the CONFERS effort being funded by 
DARPA and NASA), docking and refueling, and even standard liability 
clauses for spacecraft servicing contracts. Examples of standards 
include the use of passively safe orbits (meaning that if there is a 
communications failure, the spacecraft will pass by each other and not 
collide) until as late as practical in the docking timeline; the use of 
grounding features during spacecraft refueling to avoid the buildup of 
electrical current and attendant hazards; and notification of intent 
for cooperative rendezvous to a space traffic management organization. 
In some cases hardware standards can be very helpful--for example, in 
the shipping industry certain standards at ports make it possible for 
all ships to dock and be serviced.

    Question 2. Mr. Gold and Col. Melroy, what improvements are needed 
in space traffic management to enable expanded commercial activity in 
space?
    Answer. Today, we do not truly have space traffic management--we 
have Space Situational Awareness (SSA) with monitoring and notification 
of potential conjunctions. First, an organization must be identified 
which has both the technical capability and the resources to provide 
the full range of services--surveillance, monitoring, notification, and 
regulatory authority to punish bad actors.
    We must also increase the tempo of information to improve accuracy; 
today a dozen exquisite certified sensors are used by the Air Force to 
track objects in space, but repeat observations can be days apart, 
which greatly decreases the accuracy of the orbital track. Recently 
there have been major strides made by commercial entities such as 
COMSPOC in gathering less exquisite data from many sensors around the 
world--commercial, academic, and government--and blending them together 
for more rapid and accurate observations. At this time, the Air Force's 
JSpOC and National Space Defense Center (formerly JICSpOC) are 
currently exploring opportunities to use this commercial Space 
Situational Awareness (SSA). The civil government entity responsible 
for space traffic management should be closely coordinating with the 
Air Force to encourage this new space industry and take advantage of 
the lower cost, higher tempo data that commercial SSA provides. 
Government organizations should also coordinate how they purchase and 
use this data to help industry optimize the business model.
    Next, we must use advanced technology to reduce the cost of these 
activities which are labor-intensive and largely manual today. More 
(and better) SSA data--even if it is less expensive--means that much 
greater levels of automation will be needed, and special tools for big 
data analysis. These automated features can simplify conjunction 
notifications as well.
    Finally, as the commercial launch (and recovery) services industry 
continues towards higher ops tempo, we will begin to find our air 
traffic system increasingly stressed in order to clear wide swaths of 
airspace for launch and landing activities. Integration of air and 
space traffic management will be essential to allow spacecraft to 
safely launch through busy air routes on schedules that are 
commercially viable. Spectrum may play a connected role in this 
integration as the use of transponder frequencies allotted to aircraft 
users may be needed for spacecraft that are launching.

    Question 3. Col. Melroy, what are the benefits of the existing 
Outer Space Treaty regime for our commercial, civil, and national 
security space interests?
    Answer. The major benefit of the existing Outer Space Treaty is 
that it is better than nothing. Based on recent agreement attempts such 
as the Code of Conduct, I am concerned that if we attempted to re-
negotiate the treaty, it would likely fail or at least take many years. 
When we open up re-negotiation, we weaken the overall commitment to 
this one agreement with the force of international law. The current 
treaty does not prohibit anything we want to do which makes it a good 
starting point.
    The other benefit is that the Treaty is based on principles rather 
than being proscriptive. This provides flexibility. While it was not 
written with today's changes in national security or the expanding 
commercial environment in mind, we can tailor the principles 
individually through standards and other agreements for specific sets 
of activities. In fact, it's urgent that we do so, and the State 
Department should be forwarding this goal at UN COPUOS with the support 
of Congress and departments and agencies.

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