Assessing the U.S. House of Representatives’ SPACE Act of 2015 (H.R. 2262) and the related U.S. Senate Bill (S. 1297), Part IV – Providing for or Allocating On-Orbit (or In-Space) Jurisdiction

© Matthew Schaefer. All rights reserved.

On-Orbit (or as some like to call it, “In-Space”) jurisdiction or regulatory authority seems like legal jargon but it is an important issue. Under Art. VI of the OST, the United States is obligated to “authorize and continually supervise” it’s non-governmental, including commercial, actors space activities. For launch activities and re-entry activities, the Congress has expressly allocated licensing authority to the FAA. However, the legislative history of amendments to the Commercial Space Launch Act indicates that Congress did not intend to allocate licensing authority to the FAA for in-space or on-orbit activities.

Certainly, Congress has allocated licensing authority over selected activities in-space or on-orbit to particular federal agencies. The FCC licenses or allocates radio frequency use connected with space activities (both launch and in-space). NOAA licenses remote sensing satellites, or, more accurately, those satellites capable of sensing the Earth. The FCC and FAA impose debris mitigation requirements on licensees. But outside of spectrum use, remote sensing and debris mitigation, currently no Executive Branch agency maintains clearly delineated authority to license or regulate on-orbit or in-space activities. Those activities might include asteroid mining, on-orbit servicing of satellites, active space debris removal, space hotels and private research labs, amongst others.

The lack of on-orbit or in-space licensing authority likely does not impact sub-orbital flights because one might say the launch and reentry of such vehicles is relatively seamless — with tourists enjoying 5-10 minutes of weightlessness.  Indeed, the regulations actually define “launch” of a reusable launch vehicle for sub-orbital flight as only ending when the vehicle touches down – so the launch license already covers everything, i.e. in essence, at least from a regulatory perspective, there is no in-space activity or reentry in such a case. But for the other activities, the United States obligation to “authorize and continually supervise” may not be provided for in the current U.S. system.

Some have suggested leveraging launch licensing authority, perhaps under the guise of the payload safety review, to at least create non-interference zones. Indeed, the FAA does institute a non-interference zone around the ISS.   And, FAA said as much to Bigelow Aerospace in its request in the form of a payload safety review. At the time the FAA response became public earlier this year, I blogged the following:

“The US government (FAA AST in consultation with State Dept., Dept. of Defense, NASA, NOAA and other agencies) is saying that it will use its current launch licensing authority as best it can to protect space facilities, hardware and personnel by ensuring zones of non-interference with commercial operations.  The zones of non-interference will only apply vis a vis others being licensed by FAA AST, largely US corporations.  The decision is a sign that the US government is fully engaged in this issue and recognizes the importance of protecting and stimulating private sector investments in new space activities; it puts some “meat” on the “bones” of long-standing US policy to “advance U.S. leadership in the generation of new [space] markets.”  Hopefully, the federal government’s engagement in this issue leads to further steps in the next year or two by the US Congress: ….[including] to establish a licensing or registration regime for on-orbit or in-space activities that does not over-regulate in a manner that stifles investments in new activities but allows the US government to meet its minimal obligations under the Outer Space Treaty Art. VI to “authorize and continually supervise” US commercial activities in outer space.”

However, the FAA is understandably hesitant/resistant to stretch such leveraging authority too far – into a wholesale regulation of on-orbit activities – given the legislative history/intent. House Committee Report 105-347, part of the legislative history of the 1998 amendments adding “reentries” to FAA’s “launch” licensing authority, states:

“The Committee wishes to make clear that the Secretary has no authority to license or regulate activities that take place between the end of the launch phase and the beginning of the reentry phase, such as maneuvers between two Earth orbits or other non-reentry operations in Earth orbit; or after the end of a launch phase in the case of missions where the payload is not a reentry vehicle.”

Neither H.R.2262 and S.1297 go so far as to allocate or delegate on-orbit or in-space authority to any Executive Branch agency. H.R. 2262 in the property rights section of the bill (Sec. 202) calls for the following:

“Report Required.–Not later than 180 days after the date of the enactment of this section, the President shall submit to Congress a report that contains recommendations for–

(1) the allocation of responsibilities relating to the  exploration and utilization of space resources among Federal agencies; and

(2) any authorities necessary to meet the international  obligations of the United States with respect to the exploration and utilization of space resources. (emphasis added).”

Thus, the required report does not address authorities or jurisdiction over on-orbit activities generally, rather only with respect to exploration and utilization of space resources. Another section of H.R. 2262 (Sec. 109 labeled orbital traffic management) calls for a study by an independent contractor related to US space traffic management and orbital debris practices and authorities over space traffic and debris in the agencies. It thus touches on but does not fully encompass the broader issue of authority or jurisdiction over on-orbit or in-space activities.

S.1297 addresses on-orbit or in-space regulatory authority in broader terms than the House bill. Sec. 7 of S.1297 provides:

“Not later than 120 days after the date of enactment of this Act, the Director of the Office of Science and Technology Policy, in consultation with the Secretary of State, the Secretary of Transportation, the Administrator of the National Aeronautics and Space Administration, the heads of other relevant Federal agencies, and the commercial space sector, shall—

(1) assess current, and proposed near-term, commercial non-governmental activities conducted in space;

(2) identify appropriate oversight authorities for the activities described in paragraph (1);

(3) recommend an oversight approach that would prioritize safety, utilize existing authorities, minimize burdens, promote the U.S. commercial space sector, and meet the United States obligations under international treaties; and

(4) submit to the Committee on Commerce, Science, and Transportation of the Senate and the Committee on Science, Space, and Technology of the House of Representatives a report on the assessment and recommended approaches. (emphasis added).”

The Senate’s language (in S.7) is likely preferred to the House bill’s (Sec. 202) narrow property-rights only view of the need for an Executive Branch report on-orbit regulatory authority, specifically any new authorities needed. Asteroid mining is only one of many future on-orbit activities as noted above. The Senate bill focuses on current and “near-term” new activities – without defining what “near term” means (i.e. 3 years? Five years? Ten years?) – and what authorities will be needed for those. S. 7, Clause 3’s direction to “recommend an oversight approach that would prioritize safety, utilize existing authorities, minimize burdens, promote the U.S. commercial space sector, and meet the United States obligations under international treaties,” seems sound as well. Whether the Administration can issue such a report within 120-180 days might be questioned as it’s a difficult, sensitive issue when one is essentially debating which agency has (or should have) what powers.

Clearly, any on-orbit licensing will require an inter-agency process given the expertise within different agencies and the variety of on-orbit activities planned for the future. Moreover, ultimately it will be Congress that will have to act to give on-orbit or in-space regulatory authority to an Executive Branch agency (that will run the inter-agency process). Congress need not lay out the who (what agency), how, and what (needs be licensed or regulated) immediately. There is always a possibility to use (or even very modestly stretch?) current authorities for some activities that creep up earlier than expected. Moreover, many on-orbit activities are in still in the planning or early developmental stages.   Some investors may want certainty as to the on-orbit or in-space licensing processes earlier rather than later; but most may wish for a delay to prevent any risk of adoption of an inappropriate or overly complex framework, created without benefit of first seeing the activities that come to market.  Likewise, some government agencies may wish to have a framework in place sooner rather than later to minimize any diplomatic complaints, possibly serve as a model for other nations, and ensure compliance with international obligations. There are hints of this tension in the Senate bill as it requires a report by the Executive Branch, thus seeming to want to push the process along sooner, but the focus on current and “near term” activities suggests some sympathy to treading more slowly as activities occur. In sum, a framework for regulation of on-orbit activities is not immediately necessary, but putting in place a process to push forward the discussion is likely a very good idea.

A reporting requirement, like that found in Sec. 7 of S.1297, can potentially push forward the debate. A detailed report could give Congress sufficient information to eventually establish a framework and delegate on-orbit authority to an agency before new on-orbit activities become a reality (and if necessary before investment in such activity is hindered, or diplomatic costs become significant, from the lack of a framework). The House bill’s section 109 – focused on orbital debris and space traffic management — can likely live separately in a common bill with Sec. 7 of S.1297 focused on on-orbit jurisdiction and authority more broadly.

Make no mistake – any on-orbit authority or framework ultimately adopted can be “lite” or “light” in nature (i.e. minimally burdensome). It need not be heavy handed or onerous for the US to live up to its obligations to “authorize and continually supervise” its commercial space activities in Art. VI of the OST. That language does not require 24-7 monitoring and it does not mean chewing gum or brushing one’s teeth in space needs authorization.  The lead sentence of OST Art. VI provides: “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.”  Thus, the “authorize and continually supervise” language does require is for the US to have a system in place that ensures that its commercial actors comply with other obligations within the OST – and those are rather limited. For example, the US needs to ensure commercial actors comply with the two-way anti-contamination obligations in Art. IX (“avoid … harmful contamination [of celestial bodies] and also adverse changes in the environment of the Earth resulting from the introduction of extraterrestrial matter…”), and the like.  But also make no mistake – Art. VI is an obligation of the United States that it must live up to – and should want to — since we certainly want other countries doing so to prevent reckless actors or activities in space, particularly given the US is the largest user of space.  Moreover, it is likely the case that beginning a process to address in-orbit regulatory authority will dampen some, but certainly not all, of the diplomatic complaints surrounding the property rights portion of any bill, if they survive a likely House-Senate conference committee.

[For those interested in more international space law background on the issue of in-space or on-orbit jurisdiction, please keep an eye out for my colleague Frans von der Dunk’s article in Vol. 40 of the Journal of Space Law due out in print early next year.]

More blog posts analyzing H.R. 2262 & S. 1297 coming soon; if you are interested in earlier blogs just scroll down from the current one. Blogs already posted on H.R. 2262 & S. 1297 include:

Part I: Liability for Space Flight Participant Injury

Part II: Third-Party Liability

Part III: MPL Calculations

Part IV: On-Orbit or In-Space Jurisdiction/Regulatory Authority

(©Matthew Schaefer. All rights reserved).

Property RIghts in Space (Part II): Post-NewSpace Conference Thoughts – Posey ASTEROIDS Act, Bigelow Payload Safety Review, On-Orbit Jurisdiction, Etc.

To begin, the discussion today served as good evidence that property rights issues in space are indeed a mix of law, policy, politics, diplomacy, and technology. Thanks to my fellow panelists and the audience.

1) Resources extracted from lunar bodies and asteroids can be brought back to Earth and utilized and sold and “owned” in that sense. There should be no debate over this (Jim Muncy reminded the audience today of the Apollo example, and Sagi Kfir and Berin Szoka reminded the audience of numerous Soviet/Russian examples of resources samples be returned to Earth and owned by the extracting nation and even sold in some cases).  In other words, there should be no controversy over that aspect/provision within Rep. Posey’s ASTEROIDS Act of 2014. Indeed, the act should specifically state that the granting of a property interest in extracted resources is consistent with international law.

2) Non-interference rights with regard to surface and potentially sub-surface activities: A non-interference principle is certainly appropriate and consistent with international space law, including Art. IX of the Outer Space Treaty that obligates countries to show “due regard” for the interests of other nation’s space activities and requires advance consultations when a nation undertakes an activity in space that “would potentially cause harmful interference” with another nation’s space activity. Bigelow Aerospace’s payload safety review request speaking in terms of operational zones that would be “organic” or variable depending on the activity and Rep. Posey’s ASTEROIDS Act are indeed moving along the correct path. Of course, FAA may wonder whether it can grant operational zones in a payload safety request under its current authority but the safety zones established around the ISS do provide some precedent. Jim Muncy argued that Secretary of Transportation has inferred or implied jurisdiction over things that normally think of going beyond launch phase such as national security considerations and indeed claimed the ISS safety zone was done under authority to protect the general public.

If the Congress went so far as to legislate something akin to the Space Settlement Institute’s proposed Space Settlement Act’s provisions ( e.g. requiring government to recognize claims of private companies on Moon to upwards of 600,000 square miles –4% of surface — if company permanently inhabits settlement with regular transportation) the backlash internationally would be much greater.

3) How else might Posey ASTEROIDS Act legislation be improved? Rep. Posey’s ASTEROIDS Act gives non-interference rights if entity is first in time, if derived on a reasonable basis, and if the activity is in accord with international obligations of the United States. It refers in the preamble to promoting exploration and use of asteroids but when defining an asteroid mining utilization entity, it speaks in terms of a company that explores or utilizes. Further, the non-interference right applicable between entities the US exercises jurisdiction over applies to resource extraction utilization activities. Accordingly, the Act must undergo a legal scrub to ensure it is more clear on exploration v. utilization (and the use of “and” v. “or”).

The broader policy question is how much does a company have to do in terms of exploration or use of an asteroid, i.e. what operations does it need to undertake, in order to have it gain a superior right on a reasonable basis? Or to make things even more complicated what about moving the asteroid itself and how much movement woul Everyone agrees peering through a telescope at an asteroid should not be sufficient, but should an entity actually have to start extracting actual mineral in order to have a “reasonable basis” for asserting a superior right? Sagi mentioned he thought the line should be based on tele-presence, telemetry/tracking, and tele-robotics (including, for example, manipulation of soil and soil samples). Naturally, we should avoid any possibility of “paper” asteroid rights with trivial efforts. Of course, some of the line drawing can be left to agency interpretation and agency implementation and indeed it might be useful if Congress is not too specific in its line drawing given such lines might be drawn better after some actual practice takes place. Nevertheless, Congress should lay out more clear guidance that elaborates the policy choice. (And, of course, this does not address the additional question of what about moving the asteroid itself and how much movement would suffice to create a non-interference right? A reception discussion with Rand Simberg led to a possible standard of must just not move any distance but must move to a commercially or economically justifiable or beneficial place).

Improvements to Posey ASTEROID Act might also include specifically stating that resource extraction activity itself is consistent with international obligations (to remove any doubt or argument given the Act conditions a superior non-interference right on an activity being in accord with international law. Further, as discussed above, the granting of property rights in extracted resources should also be declared consistent with international space law. Sagi and Berin also noted in the discussion that the Act does not define the term asteroid.

4) Link to On-Orbit Jurisdiction Issue – There is debate over whether express on-orbit jurisdiction granted to FAA is necessary before the Executive Branch can act or whether it already has sufficient authority (in FAA payload safety reviews or on the basis of foreign policy or national security) to support immediate action (see above).  But if Congress expressly grants on-orbit authority should it go to FAA AST or another agency in US government?  First, one should realize that whatever agency it resides within, it will likely have to be a heavy inter-agency process in any event. Second, one needs to realize the US State Department may very well be keen on some express on-orbit authority being given to some US agency by Congress in order to ensure US compliance with OST Art. VI’s obligations to “authorize and continually supervise” US commercial space activities. Third, industry seems most keen on avoiding overly burdensome regulation, particularly early in the process. Sagi and Jim both warned that the government cannot regulate too quickly and should not be placing barriers to activities. Rather, government should be acting in a promotional role. Fourth, FAA AST has highlighted in testimony with respect to this issue that it plays both a regulatory role and a promotional role for the industry. That probably places FAA AST in a good position to garner the on-orbit authority if and when Congress expressly grants it to a US agency even if some in industry worry that FAA AST could in the long-term slide emphasis to regulation rather than promotion. Fifth, and finally, it will be key to ensure any on-orbit authority is “lite” and not “heavy,” ensuring US compliance with international supervision obligations but not stifling or hampering industry. (BTW, I disagree that “continually supervise”in the OST means 24/7/365 monitoring. The terms does not need to mean “unceasingly” but simply can mean “at regular intervals” but time and space here does not permit a full Vienna Convention on Law of Treaties Art. 31-32 analysis).

5) What is impact of 2003 Braibanti letter on US flexibility now with respect to property rights? [Note: “In a letter dated 15 Aug 03, Ralph L. Braibanti, the Director of Space and Advanced Technology in the Department of State�s Bureau of Oceans and International Environmental and Scientific Affairs, wrote, “We have reviewed the “Notice” dated February 13, 2003, that you sent to the U.S. Department of State. In the view of the Department, private ownership of an asteroid is precluded by Article II 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. Accordingly, we have concluded that your claim is without legal basis.” See http://www.spacedaily.com/news/asteroid-03k.html ]

I would argue none at all. The context of that letter was a company OrbDev claiming an asteroid with no physical exploration or extraction or movement of the asteroid. OrbDev sent a bill to NASA for rent/parking and the Braibanti letter was in response to that unique context and situation.