[House Hearing, 115 Congress]
[From the U.S. Government Publishing Office]
REGULATING SPACE: INNOVATION, LIBERTY,
AND INTERNATIONAL OBLIGATIONS
=======================================================================
HEARING
BEFORE THE
SUBCOMMITTEE ON SPACE
COMMITTEE ON SCIENCE, SPACE, AND TECHNOLOGY
HOUSE OF REPRESENTATIVES
ONE HUNDRED FIFTEENTH CONGRESS
FIRST SESSION
__________
MARCH 8, 2017
__________
Serial No. 115-06
__________
Printed for the use of the Committee on Science, Space, and Technology
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Available via the World Wide Web: http://science.house.gov
______
U.S. GOVERNMENT PUBLISHING OFFICE
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COMMITTEE ON SCIENCE, SPACE, AND TECHNOLOGY
HON. LAMAR S. SMITH, Texas, Chair
FRANK D. LUCAS, Oklahoma EDDIE BERNICE JOHNSON, Texas
DANA ROHRABACHER, California ZOE LOFGREN, California
MO BROOKS, Alabama DANIEL LIPINSKI, Illinois
RANDY HULTGREN, Illinois SUZANNE BONAMICI, Oregon
BILL POSEY, Florida ALAN GRAYSON, Florida
THOMAS MASSIE, Kentucky AMI BERA, California
JIM BRIDENSTINE, Oklahoma ELIZABETH H. ESTY, Connecticut
RANDY K. WEBER, Texas MARC A. VEASEY, Texas
STEPHEN KNIGHT, California DONALD S. BEYER, JR., Virginia
BRIAN BABIN, Texas JACKY ROSEN, Nevada
BARBARA COMSTOCK, Virginia JERRY MCNERNEY, California
GARY PALMER, Alabama ED PERLMUTTER, Colorado
BARRY LOUDERMILK, Georgia PAUL TONKO, New York
RALPH LEE ABRAHAM, Louisiana BILL FOSTER, Illinois
DRAIN LaHOOD, Illinois MARK TAKANO, California
DANIEL WEBSTER, Florida COLLEEN HANABUSA, Hawaii
JIM BANKS, Indiana CHARLIE CRIST, Florida
ANDY BIGGS, Arizona
ROGER W. MARSHALL, Kansas
NEAL P. DUNN, Florida
CLAY HIGGINS, Louisiana
------
Subcommittee on Space
HON. BRIAN BABIN, Texas, Chair
DANA ROHRABACHER, California AMI BERA, California, Ranking
FRANK D. LUCAS, Oklahoma Member
MO BROOKS, Alabama ZOE LOFGREN, California
BILL POSEY, Florida DONALD S. BEYER, JR., Virginia
JIM BRIDENSTINE, Oklahoma MARC A. VEASEY, Texas
STEPHEN KNIGHT, California DANIEL LIPINSKI, Illinois
BARBARA COMSTOCK, Virginia ED PERLMUTTER, Colorado
RALPH LEE ABRAHAM, Louisiana CHARLIE CRIST, Florida
DANIEL WEBSTER, Florida BILL FOSTER, Illinois
JIM BANKS, Indiana EDDIE BERNICE JOHNSON, Texas
ANDY BIGGS, Arizona
NEAL P. DUNN, Florida
CLAY HIGGINS, Louisiana
LAMAR S. SMITH, Texas
C O N T E N T S
March 8, 2017
Page
Witness List..................................................... 2
Hearing Charter.................................................. 3
Opening Statements
Statement by Representative Brian Babin, Chairman, Subcommittee
on Space, Committee on Science, Space, and Technology, U.S.
House of Representatives....................................... 4
Written Statement............................................ 6
Statement by Representative Ami Bera, Ranking Member,
Subcommittee on Space, Committee on Science, Space, and
Technology, U.S. House of Representatives...................... 8
Written Statement............................................ 10
Statement by Representative Lamar S. Smith, Chairman, Committee
on Science, Space, and Technology, U.S. House of
Representatives................................................ 13
Written Statement............................................ 14
Statement by Representative Eddie Bernice Johnson, Ranking
Member, Committee on Science, Space, and Technology, U.S. House
of Representatives............................................. 16
Written Statement............................................ 17
Witnesses:
Ms. Laura Montgomery, Attorney and Sole Proprietor, Ground Based
Space Matters, LLC
Oral Statement............................................... 20
Written Statement............................................ 22
Dr. Eli Dourado, Senior Research Fellow and Director, Technology
Policy Program, Mercatus Center, George Mason University
Oral Statement............................................... 37
Written Statement............................................ 39
Mr. Doug Loverro, Former Deputy Assistant Secretary of Defense
for Space Policy
Oral Statement............................................... 42
Written Statement............................................ 44
Mr. Dennis J. Burnett, Adjunct Professor of Law, University of
Nebraska-Lincoln, College of Law
Oral Statement............................................... 56
Written Statement............................................ 58
Dr. Henry B. Hogue, Specialist in American National Government,
Congressional Research Service
Oral Statement............................................... 77
Written Statement............................................ 79
Discussion....................................................... 87
Appendix I: Answers to Post-Hearing Questions
Ms. Laura Montgomery, Attorney and Sole Proprietor, Ground Based
Space Matters, LLC............................................. 106
Dr. Eli Dourado, Senior Research Fellow and Director, Technology
Policy Program, Mercatus Center, George Mason University....... 108
Mr. Doug Loverro, Former Deputy Assistant Secretary of Defense
for Space Policy............................................... 110
Mr. Dennis J. Burnett, Adjunct Professor of Law, University of
Nebraska-Lincoln, College of Law............................... 115
Dr. Henry B. Hogue, Specialist in American National Government,
Congressional Research Service................................. 119
Appendix II: Additional Material for the Record
Documents submitted Representative Brian Babin, Chairman,
Subcommittee on Space, Committee on Science, Space, and
Technology, U.S. House of Representatives...................... 124
Document submitted Representative Ami Bera, Ranking Member,
Subcommittee on Space, Committee on Science, Space, and
Technology, U.S. House of Representatives...................... 191
REGULATING SPACE: INNOVATION, LIBERTY,
AND INTERNATIONAL OBLIGATIONS
----------
WEDNESDAY, MARCH 8, 2017
House of Representatives,
Subcommittee on Space,
Committee on Science, Space, and Technology,
Washington, D.C.
The Subcommittee met, pursuant to call, at 10:07 a.m., in
Room 2318 of the Rayburn House Office Building, Hon. Brian
Babin [Chairman of the Subcommittee] presiding.
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Chairman Babin. The prayer--excuse me. The Chair is
authorized to declare recesses of the Subcommittee at any time.
We need prayers, don't we?
Welcome to today's hearing titled ``Regulating Space:
Innovation, Liberty, and International Obligations.'' I
recognize myself for five minutes for an opening statement.
The Outer Space Treaty celebrated its 50th anniversary just
last month. It was negotiated at the height of the Cold War and
reflected two very distinct philosophies: communism and
liberty. The Soviet Union sought to prevent any non-state
actors from operating in space. The United States, however,
argued that space should be free for exploration and use for
all and by all, including the private sector and individuals.
Fortunately, the United States' position was the one accepted.
As part of that compromise, the United States agreed, in
Article VI of the Treaty, to authorize and supervise private
sector space activities. When the Senate ratified the Outer
Space Treaty 50 years ago, private free enterprise in outer
space was an idea, but not yet a reality.
Today, not only is there U.S. free enterprise in outer
space, it is innovating at an unprecedented pace. American
companies are developing and investing in technology and
spacecraft to conduct non-traditional private sector space
activities, such as satellite servicing, manufacturing, human
habitation, and space resource utilization.
Recognizing that American free enterprise and innovation in
outer space may implicate our international obligations,
Congress directed the Obama Administration to assess existing
authorization and supervision authorities. Last year, the Obama
Administration recommended that Congress expand the regulatory
authority of the Secretary of Transportation. Well, the purpose
of today's hearing is to inform Congress as it assesses U.S.
international obligations in light of new and innovative
private space activities.
I hope it will also inform the incoming Trump
Administration as it formulates its own positions on the topic.
I look forward to working with the Administration going
forward, and plan to invite them to testify in the future once
they have developed a formal position.
I hope that today's witnesses will identify fundamental
national interests at stake, examine our international
obligation to authorize and supervise space activities, expand
on the options that we have at our disposal to meet
authorization and supervise obligations, and help us all assess
and understand different paths forward. The course we chart
today may not seem very important, but in the long run the
decisions we make will have far-reaching consequences.
I recognize that today there is no consensus opinion on
what should be done. I also recognize that there are many
different ideas. Frankly, this is a good thing. This is a
serious issue, and we should do our best to get it right, and
that entails examining all the possible solutions.
I have serious reservations with the Section 108
legislative proposal. While it may be well intentioned, it is
ill conceived. It places the burden of demonstrating
consistency with international obligations, foreign policy, and
national security requirements of the United States with the
applicant, leaving the government to decide at its own
discretion, without clear limitations, whether an activity
should go forward. It grants expansive discretionary regulatory
authority, essentially with the ability to regulate any or all
aspects of private sector space activities. It also fails to
identify or assess alternatives to a Department of
Transportation agency licensing and regulatory construct. We
must not just presume that a traditional agency licensing
authority granted to the Department of Transportation is the
best way forward.
This hearing will be an important step as the Committee
develops legislation that will streamline the regulatory
process, limit burdensome government intrusion, promote
American innovation and investment, and satisfy our
international obligations. We must find a way to uphold our
cherished principles of liberty and prime the pump of
innovation. I believe that we can do this while also satisfying
our international obligations.
If done correctly, we can expand American prosperity and
influence. If done haphazardly, we could smother the embers of
creativity and diminish our leadership in space. I believe it
is one of the fundamental space policy questions of our time.
I want to thank today's witnesses for joining us as we
discuss these important issues, and I look forward to hearing
your testimony.
[The prepared statement of Chairman Babin follows:]
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Chairman Babin. And now at this time I would like to
introduce into the record some letters that I have, and I will
do so. I ask unanimous consent to enter into the record letters
of the Heritage Foundation, the Competitive Enterprise
Institute, and Tech Freedom, and a paper published by the
Niskanen Center. These letters and the paper were shared with
Minority staff in advance of the hearing, and without objection
I so order.
[The information appears in Appendix II]
Chairman Babin. I now recognize the Ranking Member, the
gentleman from California, for an opening statement. Mr. Bera.
Mr. Bera. Great. Thank you, Mr. Chairman.
Good morning, and welcome to our distinguished panel.
Again, I want to thank the Chairman for calling this hearing.
This is a very timely topic, and in fact, as the Subcommittee
embarks on the 115th Congress, I think this is going to be a
very vibrant time in how Congress, how our federal government
and NASA approach space, so I look forward to working with you
and making this one of the most bipartisan, vibrant committees
and subcommittees in Congress.
Think about where we were over 50 years ago in 1967. It was
two years before Neil Armstrong was even going to land on the
Moon. Yet we were thinking about some of these issues, and when
the United States signed the Outer Space Treaty in 1967,
thankfully, as the Chairman already pointed out, our approach
to being open to the private sector getting involved in space
was the one that won out. But we had no way of knowing where we
would be in 2017, and if you think about how rapidly things
have moved in the last decade with entrepreneurs, innovators
moving into commercial space travel, that's the challenge for
us at this juncture is how do we move forward.
In 2015, we passed the Commercial Space Launch
Competitiveness Act and directed the Office of Science and
Technology Policy to make some recommendations to Congress, and
what they recommended for us was an authorization and
supervision approach that would prioritize safety, utilize
existing authorities, minimize burdens to commercial space
transportation, promote the U.S. commercial space sector, and
meet the U.S. obligations under international treaties. So
there's a lot in there.
I think the challenge for this Committee and all of us
moving forward is, as we look at the private sector getting
more involved in low-Earth orbit, as we look at more
countries--you know, take India, for example, as they're
rapidly getting involved, how do we put together a framework
that does protect the assets that are up there that in some
ways acts an air traffic control managing the lanes that are
there, minimizes the safety risks. We've got to work liability
issues and other issues. But at the same time, we don't want to
stifle that creativity and innovation, so you know, not easy
issues to work through, but the issues are incredibly important
for us to work through in order to do our jobs so we can give
some clarity to those entrepreneurs and those that are entering
the field but understanding that we've got to have the right
balance between the public sector--there are certain things
that only NASA and the federal government can do, you know,
much like our mission to Mars. Again, you'll me say we ought to
set that goal and get there by 2033 but that's also going to be
a public-private partnership where we're going to be working
amongst others.
I look forward to the testimony. In particular, I hope some
of today's discussions can provide some clarity on the
following questions. What is meant by continuing supervision as
stated in Article VI of the Outer Space Treaty? Can our
obligations under Article VI be met by existing authorities,
and if not, why not? And how would the U.S. government actually
be able to enforce compliance once a mission is launched? What
are the potential risks of regulating or not regulating non-
governmental missions that are not currently covered under
existing government authorities? And is the U.S. government
exposed to liabilities by granting mission authorization or
approval? Again, I think those are some of the things that we
need to work through.
Again, I look forward to a vibrant 115th Congress serving
with the Chairman and the broader Committee, and again, I think
this is a very timely topic for where we find ourselves.
Thank you. I'll yield back.
[The prepared statement of Mr. Bera follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Chairman Babin. Thank you, Mr. Bera. I appreciate that.
And now I recognize the Chairman of our full Committee, the
gentleman from Texas, Chairman Smith.
Chairman Smith. Thank you, Mr. Chairman.
America's future in outer space is bright. From asteroid
mining, to private Moon missions, to satellite servicing, there
is great promise that American commercial space companies will
soon enjoy profits and discover scientific benefits to being in
outer space. American visionaries stand ready to facilitate
these amazing endeavors.
Unfortunately, the Obama Administration issued a report
last year that called for expansive regulations over all types
of private space activities. The Obama Administration also
requested authority to conduct space traffic management. The
request does present an opportunity for Congress to streamline
processes and enhance the strength of private sector space
activities.
For instance, stakeholders continue to raise concerns that
they need certainty to attract investments and that they face
pressing short-term launch dates and regulatory risks. We
should address these issues and ensure that the Executive
Branch does not stifle innovation. Going forward, it should be
easier, not harder, for private sector companies to freely
explore space.
America faces a crisis of over-regulation. Regulatory
overreach has eroded far too many liberties. To the greatest
extent possible, we should address public policy challenges
without creating new regulations.
It has been eight months since the Obama Administration
delivered their message of overly burdensome regulations to
Congress but the public debate has shifted in the last few
weeks. Instead of presuming that expansive new agency
regulatory powers are needed, the conversation is shifting to
questions of how to minimize agency regulation or avoid it all
together. This is a good sign. It shows that the space
community is doing the hard work necessary to develop good law
and policy. This is no easy task, particularly when our goal is
to empower private investments and discoveries, not impede
them.
Let us not forget that the Outer Space Treaty is a treaty
of principles, with great discretion granted to the United
States on how to implement its obligations.
In last Congress's enacted U.S. Commercial Space Launch
Competitiveness Act, Congress made an interpretative
declaration of the Outer Space Treaty term ``national
appropriation,'' codifying the right of U.S. citizens to
legally take possession of space resources. Congress should
keep this power in mind as we address the future questions of
treaty compliance.
Government space programs explore the unknown, discover new
worlds, and develop new science and technologies. But to unlock
the great economic potential of outer space, we need the
ingenuity, innovation, and interests of our private sector.
Thank you, Mr. Chairman. I yield back.
[The prepared statement of Chairman Smith follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Chairman Babin. Yes, sir. Thank you.
Now I recognize the Ranking Member of the full Committee,
the gentlewoman from Texas, Ms. Johnson.
Ms. Johnson. Thank you very much, and welcome to our
witnesses.
Mr. Chairman, I appreciate you holding this hearing on
regulating space. I'm really excited about the possibilities
for the commercial exploration and utilization of outer space.
The many proposals for new private sector space activities
exemplify our Nation's capacity for innovation.
However, the pace of technology often moves faster than the
policies that should guide its development and use, and so we
find ourselves at a key juncture as non-governmental actors and
investors seek some policy clarity regarding their proposed
activities in space. We have a responsibility to provide them
with as clear guidance as possible. We also have a
responsibility to uphold our international treaty obligations
and, ultimately, to be good stewards of outer space.
Just the other day, I read in the Dallas Morning News, my
hometown paper, an article titled ``Orbiting junkyard begins to
threaten space economy.'' What will it mean, for example, to
have constellations involving hundreds of miniature satellites
orbiting the Earth? How do they affect the potential for
collisions in space, and what impact would an increasing chance
of collisions have on future U.S. government and commercial
space activities?
The legislative proposal put forth by the previous
Administration included direction such as, I quote, ``the
Secretary of Transportation, in coordination with the Secretary
of Defense, is authorized to examine the planned and actual
operational trajectories of space objects and to advise
operators as appropriate to facilitate prevention of
collisions.'' While this proposal is one of a number of
potential approaches, it or another measure will be needed to
ensure that space remains a productive environment for
scientific investigation, commerce, and government activities.
Mr. Chairman, I want our commercial space industry to grow
and succeed but determining what measures are needed to help
ensure the safety and sustainability of space operations will
require careful consideration. I hope today's hearing is just
the beginning of a series of discussions to closely examine the
full spectrum of issues regarding commercial space missions
that do not fall under existing regulatory authorities. Our
commercial sector, our Nation's space program, and our future
in space have much to gain from us taking the time to get it
right.
I look forward to our witnesses' testimony. I thank you,
and I yield back.
[The prepared statement of Ms. Johnson follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Chairman Babin. Yes, ma'am. Thank you.
Now let me introduce our witnesses. We appreciate all of
you being here.
Ms. Laura Montgomery is our first witness today, Attorney
and Sole Proprietor of Ground Based Space Matters, LLC. Ms.
Montgomery spent over two decades with the Federal Aviation
Administration serving as the Manager of the Space Law Branch
in the FAA's Office of the Chief Counsel. Ms. Montgomery
received her undergraduate degree from the University of
Virginia and her law degree from the University of
Pennsylvania. Thank you for being here.
And Dr. Eli Dourado, our second witness today, Senior
Research Fellow and Director from the Technology Policy Program
at the Mercatus Center of George Mason University. Dr. Dourado
is an Adviser to the State Department on International
Telecommunication matters and has served on several U.S.
delegations to the United Nations. He received his bachelor's
degree in economics and political science from the Furman
University and his Ph.D. in economics from George Mason
University. Thank you for being here.
Mr. Doug Loverro, welcome, our third witness today, former
Deputy Assistant Secretary of Defense for Space Policy. In this
role, he led departmental activities in international space
cooperation and assessment of the national security impacts of
commercial space activities. Mr. Loverro worked for the
Department of Defense for over 30 years managing national
policy for the full range of national security space
activities. Mr. Loverro earned a bachelor's degree in chemistry
from the United States Air Force Academy, a master's of science
in physics from the University of New Mexico, a master's of
science in political science from Auburn University, and a
master's of business administration from the University of West
Florida. Welcome.
Mr. Dennis Burnett, our fourth witness today, is Adjunct
Professor of Law at the College of Law at the University of
Nebraska in Lincoln. Mr. Burnett also is Chief Counsel,
Government and Regulatory Affairs at Kymeta Corporation. Mr.
Burnett has done extensive work with all aspects of commercial
space activities including preparing and obtaining one of the
first NOAA-issued licenses for a U.S. commercial remote sensing
satellite system. He has served three terms on the Defense
Trade Advisory Group for the U.S. Department of State. He holds
a bachelor's degree of science in political science and German
from Nebraska Wesleyan University, a juris doctorate from the
University of Nebraska College of Law, and a master of law from
Georgetown University. Welcome.
Dr. Henry Hogue, our fifth and final witness today, is a
specialist in American national government at the Congressional
Research Service where he has conducted research in federal
government organization and reorganization, the presidential
appointments process, and the practices surrounding
presidential recess appointments. Dr. Hogue earned his Ph.D. in
public administration from the American University.
So I now recognize Ms. Montgomery for five minutes to
present her testimony.
TESTIMONY OF MS. LAURA MONTGOMERY,
ATTORNEY AND SOLE PROPRIETOR,
GROUND BASED SPACE MATTERS, LLC
Ms. Montgomery. Chairman Smith, Ranking Member Johnson,
Chairman Babin, and Ranking Member Bera, Members of the
Subcommittee, thank you for inviting me to participate today to
address the role of Article VI of the Outer Space Treaty and
the regulatory responsibilities of the United States.
I respectfully recommend that the United States not
regulate new commercial space activities such as lunar
habitats, mining, satellite servicing or even lunar beer
brewing for the wrong reason, namely the belief that Article VI
makes the United States regulate either any particular activity
or all activities of U.S. citizens in outer space.
A misunderstanding of the Outer Space Treaty looms as a
possible barrier to private space activity and investment
because many claim Article VI prohibits commercial operations
in outer space unless the government authorizes and supervises,
which I'll refer to as regulates or oversees, those activities.
Article VI states the activities of non-governmental entities
in outer space including the Moon and other celestial bodies
shall require authorization and continuing supervision by the
appropriate state party to the treaty.
To interpret this as forbidding unauthorized private space
activity is wrong for three reasons. First, the treaty doesn't
forbid private persons from operating in outer space. Second,
it doesn't say that either all activities or any particular
activity must be authorized. And finally, Article VI is not
under U.S. law self-executing, which means that it does not
create an obligation on the private sector unless and until
Congress says it does.
By its own terms, Article VI does not prohibit space
operations by the commercial sector. First and most simply,
it's not in the plain language of the provision. Instead, it
leaves it to each country to decide which particular activities
require regulation, how that regulation will be carried out,
and with how much supervision. If Article VI truly meant that
all activities had to be overseen, where would oversight stop?
Life is full of activities from brushing one's teeth to playing
a musical instrument, which take place now without either
federal supervision or continuing federal authorization. Just
because those activities take place in outer space does not
mean they should suddenly require oversight. Conversely,
activities regulated on Earth might not require oversight in
space. Accordingly, if Congress hasn't said that a certain
activity requires oversight, it doesn't.
Next, Article VI is not self-executing, which means it is
not enforceable federal law until Congress passes a law to
implement it. Just as the Supreme Court said in Medellin versus
Texas, when the Court did not let the President enforce a
ruling of the International Court of Justice against the states
because Congress had yet to act, Article VI's call for
oversight requires in the U.S. system Congressional action in
the form of legislation. Accordingly, regulatory agencies
should not attempt to enforce this treaty provision by denying
licenses or payload authorizations or by attempting to regulate
that which they do not have jurisdiction over.
What the government should not do is pass a law so broadly
worded as to encompass all activities that could take place in
outer space. Due process considerations of notice and
transparency mandate that if Congress chooses to regulate space
activity, it should identify that activity. The Supreme Court
in criminal and First Amendment cases has stated that laws
should be drafted so that persons of ordinary intelligence can
tell what is forbidden and what is required, and that would be
a good model to follow here.
Legislating that all space activities require federal
oversight could entrap people engaged in perfectly benign
activities. They might reasonably believe that something they
do all the time on Earth wasn't a space activity or operation
of a space object subject to regulation. What is forbidden or
required should be clear and the government must provide
adequate notice of what has to be authorized. It would be
unnecessarily burdensome and wasteful to regulate everything
everyone does everywhere in outer space.
The most certain and long-lasting solution and the one I
advocate because it would reduce opportunities for confusion,
misunderstanding, and regulatory overreach would be for
Congress to prohibit any regulatory agency from denying a U.S.
entity the ability to operate in outer space solely on the
basis of Article VI. Thank you.
[The prepared statement of Ms. Montgomery follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Chairman Babin. Thank you, Ms. Montgomery.
I now recognize Dr. Dourado for five minutes to present his
testimony.
TESTIMONY OF DR. ELI DOURADO,
SENIOR RESEARCH FELLOW AND DIRECTOR,
TECHNOLOGY POLICY PROGRAM,
MERCATUS CENTER, GEORGE MASON UNIVERSITY
Dr. Dourado. Chairman Babin, Ranking Member Bera, Members
of the Subcommittee, thank you for inviting me here today to
participate in this timely hearing on how to promote innovation
and liberty in outer space while meeting our international
obligations. My name is Eli Dourado and I study the regulation
of emerging technologies at the Mercatus Center at George Mason
University.
Space is a domain that until now has been dominated by
governments. In that respect, it is similar to the state of the
internet in the 1980s. Commercial use of the internet was
prohibited until 1989. Once commercial activity was allowed,
the internet began to flourish and grow into the enormous
economic and cultural force that it is today.
Vint Cerf, one of the fathers of the internet, credits
permissionless innovation for the economic benefits the
internet has generated. As an open platform, the internet
allows entrepreneurs to try new business models and offer new
services without seeking the approval of regulators beforehand.
Because of the First Amendment and some foresighted bipartisan
policies put in place in the 1990s, there's little prior
restraint on the business activities that may be tried online.
When harms and failures occur, we address them in an ex post
manner.
My colleague Adam Thierer has generalized this notion of
permissionless innovation in his book by that name. In any
number of regulatory domains, there are serious, legitimate
concerns that make it tempting to require innovators to seek
approval before they proceed. While regulatory approval can
address those concerns, it does so by dramatically slowing the
pace of innovation. We must therefore build in some tolerance
for mistakes, failures, and learning so that innovation can
move forward. To a considerable extent, organic, bottom-up
solutions will do a better job of solving these complex social
problems without unduly slowing the pace of innovation.
Permissionless innovation can also be applied to space.
Congress should seek to maximize the latitude the private
sector has to experiment with commercial space endeavors. As
with other domains, this freedom to experiment will result in
some mistakes and failures. Yet over the long run,
permissionless innovation will result in faster progress and
more robust solutions to policy problems than a precautionary
regulatory mentality.
To be sure, space is a unique domain. Space is an extremely
hostile and dangerous environment, and there are clear national
security interests to consider. Nevertheless, Americans have
already observed the benefits of a more permissive approach to
space technology, not least in the modernization of the Global
Positioning System. When the Clinton Administration ended
Selective Availability, giving civilian users access to the
same level of granularity in GPS data as the military, numerous
commentators decried the irresponsibility of the
Administration's decision to allow uncontrolled access to
higher-resolution location data on national security grounds.
The predicted negative consequences never came to pass, and
innovation flourished. Countless applications, from mixed
reality to ridesharing, depend on the high-quality data this
liberalization produced. Today, almost no one advocates
bringing back Selective Availability. Given the closely
controlled nature of space technology, further liberalizations
are in order and would similarly yield higher levels of
innovation.
Yet there is one recent proposed policy change that is
headed in precisely the wrong direction. Last year, the
previous Administration reported to Congress on a framework to
regulate commercial activity in space. The Administration
proposed a framework in which explicit authorization from the
Secretary of Transportation would be needed for every mission,
which is defined as the operation of any space object. As Ms.
Montgomery has testified, this framework is unnecessary to meet
our international treaty obligations. It is also exceedingly
impractical and destructive. In the future that we all are
working toward, humanity will establish permanent settlements
in orbit and throughout the solar system. Achieving this goal
will necessarily entail the operation of millions of space
objects, on each occasion triggering a need for authorization
from the Secretary of Transportation back on Earth. This state
of affairs is unworkable and will hinder our progress into the
universe.
The mission authorization framework represents the
antithesis of the permissionless innovation my colleagues at
the Mercatus Center and I believe is necessary for rapid
technological development in space or any other domain. Instead
of adopting the Obama Administration's proposal, I urge the
Congress to consider blanket authorization for all
nongovernmental operations in space that do not cause tangible
harm to other parties, whether foreign or domestic, in their
peaceful exploration and use of outer space. Such an approach
would meet our treaty obligations while maximizing the scope
for innovation and experimentation in space.
I thank the Subcommittee for its interest in and attention
to these issues, as well as for the opportunity to testify.
[The prepared statement of Dr. Dourado follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Chairman Babin. Thank you, Dr. Dourado.
I now recognize Mr. Loverro for five minutes to present his
testimony.
TESTIMONY OF MR. DOUG LOVERRO,
FORMER DEPUTY ASSISTANT SECRETARY
OF DEFENSE FOR SPACE POLICY
Mr. Loverro. Thank you, Chairman Babin, Ranking Member
Bera, and Members of the Subcommittee. I'm pleased to join Ms.
Montgomery, Dr. Dourado, Mr. Burnett and Dr. Hogue to talk to
you today about the issues in question surrounding the possible
need to regulate the burgeoning U.S. commercial and
entrepreneurial space industry.
I come before you as the former Deputy Assistant Secretary
of Defense for Space Policy to provide you my view on the
challenges of assuring continued U.S. leadership from primarily
a national security perspective. That perspective is informed
by a sure understanding that strength in national security is
inextricably tied to the health and vitality of U.S. industry
and that without a vibrant, innovative and bold commercial and
entrepreneurial space sector, the U.S. risks falling behind
pure competitors in the national security space realm. Given
that by any measure, space is integral to modern war fighting,
that's a risk we cannot allow to happen, so thank you for the
opportunity to speak to you today.
Let me quickly explain why this is so important. Today we
find that space capabilities are fully intertwined into every
aspect of U.S. war fighting from the largest major force
conflict down to the smallest unit-level action but threats to
those capabilities are growing and are evolving at an alarming
rate, representing a huge range of possible attack modes
including every known form of kinetic, electronic and cyber-
attack.
As we in DOD analyzed this problem over the last four
years, it became clear to us that if we were to defer or defeat
such attacks, we would not be able to do it solely from within
the confines of U.S. military spending nor by following the
development timelines associated with U.S. military
procurement. There was not enough money, and the threats were
evolving too quickly. Luckily, we didn't have to.
Worldwide commercial space activities today comprise nearly
$280 billion enterprise and the overwhelming majority of that
is from within the United States. U.S. government space
spending, on the other hand, is one-sixth that amount, about
$45 billion. More importantly, commercial and entrepreneurial
space activities move more quickly and are innovating in every
aspect of the space enterprise including mission types,
manufacturing methods, terrestrial infrastructure, and orbital
domains. So as we in DOD try to figure out how we would defend
U.S. national security space interests against the threats we
saw developing, we realized that one of the primary pillars of
that defense would be built on the success of the U.S.
commercial space sector. In short, our conclusion became that
the U.S.--the strength of the U.S. commercial entrepreneurial
space sector was a key ingredient in DOD strategy to deter
aggression in space and to defeat those threats if it was ever
used.
So it was against this backdrop that in my role as the lead
for Defense Space Policy, I began to assess what steps DOD
specifically and the U.S. government more generally needed to
take to assure a vibrant, innovative and bold commercial and
entrepreneurial space sector would be there when we needed it.
As I explain more fully in my written statement, in my
mind, the single--the largest single threat to a thriving
commercial space market we all seek to foster is the potential
for lapses in spaceflight safety, which would seriously damage
the entire commercial space industry. This is the key issue for
us to understand. Whereas accidents in the terrestrial
environment have impacts that are limited and quantifiable in
economic, spatial and temporal terms, accidents in space have
an unlimited temporal and physical dimension and effects that
go well beyond our ability to economically quantify their
impact. How can we even begin to assess the cost to U.S.
national security if an errant CubeSat accidentally destroyed a
U.S. national technical mean satellite? Would we just value the
cost of that satellite, all the intelligence it may have
collected over the rest of its expected life, or the cost to
the commercial space market if we close it down for an entire
year or two investigating the causes and then solutions of such
an accident? And that doesn't even begin to talk about the
resulting debris that would be up there for centuries.
Even worse, what if that CubeSat had been launched by a
foreign power, an ally like Japan or an adversary like Russia?
Would the collision be viewed as an attack? And if it were the
other way around, would Russia view a U.S. satellite that hit
one of theirs as an attack?
It's not my purpose here today to answer these questions.
Instead, my point is to say that a laissez-faire approach to
spaceflight safety has serious and non-quantifiable impacts
that extend well beyond the impact to the investor, the
scientist or the high school that might own the CubeSat or the
COMSAT.
I'm also not saying that the only way to avoid that
potential future is to emplace a set of government regulations.
There are many ways to skin this cat, but rest assured, we must
take some action. The space environment is becoming crowded and
the potential for accidents is increasing greatly. The surest
way to harm this burgeoning industry is to not provide the
mechanisms to assure spaceflight safety. If we want to make
sure those measures advantage rather than disadvantage U.S.
industry, it is time for the United States to take the lead.
Thank you, and I look forward to your questions.
[The prepared statement of Mr. Loverro follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Chairman Babin. Thank you, Mr. Loverro.
Now I now recognize Mr. Burnett for five minutes to present
his testimony.
TESTIMONY OF MR. DENNIS J. BURNETT,
ADJUNCT PROFESSOR OF LAW,
UNIVERSITY OF NEBRASKA-LINCOLN,
COLLEGE OF LAW
Mr. Burnett. Thank you, Mr. Chairman.
Mr. Chairman and members of the Subcommittee, I'm here to
present my views about how to achieve freedom of space. To me,
freedom of space is a goal to achieve maximum freedom of action
balanced with restraints necessary to protect important
national interests and restraints that are not arbitrary.
Now, freedom of space for governmental activities was
firmly established in the Outer Space Treaty, as you mentioned
in your opening statement, Mr. Chairman. However, freedom for
commercial uses of space was not a foregone conclusion as it
was opposed by the Soviet Union. The compromise that was
reached is contained in Article VI, and you have already heard
what Article VI provides.
Now, that compromise was not a difficult compromise for the
United States in 1967. There was only one commercial operator
of settlements. That was the Communication Satellite
Corporation, or COMSAT, and COMSAT was fully regulated by the
Federal Communications Commission. Now, in 1984, the FCC type
of regulation was expanded to cover commercial remote sensing
and commercial launch services, and it could be fairly said
these comply with the requirements of Article VI.
Well, now we are on the cusp of a new era of commercial
activities in outer space. We are seeing new business ideas,
innovative technical developments, and the availability of
funding to make these ideas possible. Imagine the innovations
that will be enabled by the reduction of the cost of access to
space by reusable launch vehicles.
Now, the advent of new space activities, that is,
activities that are not regulated by the FCC, not regulated by
NOAA and not regulated by the FAA, the advent of these new
activities presents us, the nation, with an opportunity to
reexamine and rethink our national approach to regulation and
the opportunity to consider how to remove unnecessary barriers
to realizing the benefits of new space activities.
We are here today, or I am here today to reexamine and
rethink three such subjects. First, the treaty obligations. As
you know, the treaty in Article VI requires a minimum of some
type of authorization and supervision. I think the word
``minimum'' here is extremely important. Authorization needs
only to be some form of official permission or approval of an
activity. Supervision needs only to include some type of
monitoring on a recurring basis. The treaty does not require
more.
Second, the options. Congress can choose from options that
range from regulatory-heavy to regulatory-light. Regulatory-
heavy are the existing regulatory models. Regulatory-light
could be something as simple as a registration bottle.
Third, what are the restraints necessary to protect
important national interests? Now, the existing regulatory
models provide, I believe, a cautionary lesson for trying to
protect national security by requiring coordination and
cooperation between numerous executive agencies and by
requiring compliance by the applicant with unspecified national
interest. Some of the decision criteria that are used are black
boxes, and classification of information is sometimes used for
can be used as a shield to protect against untethered
discretion. The applicant must prove a negative, which is a
logical impossibility, and the burden of forward never shifts
from the applicant. Almost in any other circumstance such a
process would be considered to be both arbitrary and capricious
and lacking the fundamental balance necessary to achieve what
we consider to be the standards of freedom. Freedom is not
present when restraints are arbitrary.
Now, one possible solution is to establish by legislation a
clear list of objective decision criteria and establish a
threshold for shifting the burden of going forward. Now, some
examples are provided in my written testimony. Now, the
elephant in the room is classified information. However, I must
say that only once in my nearly 40 years of private practice
have I encountered a situation where a security requirement
truly precluded the resolution of a problem.
So in conclusion, I would like to emphasize that it is in
our national interest to reexamine and rethink our national
approach to regulation. Our new generation of space
entrepreneurs deserve freedom to innovate new technologies, new
products and new ways of doing business. They deserve freedom
from arbitrary restraints, and they deserve a process that can
provide an authorization at the speed of business.
Thank you.
[The prepared statement of Mr. Burnett follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Chairman Babin. Thank you, Mr. Burnett.
I now recognize Dr. Hogue for five minutes for his
testimony.
TESTIMONY OF DR. HENRY B. HOGUE,
SPECIALIST IN AMERICAN NATIONAL GOVERNMENT,
CONGRESSIONAL RESEARCH SERVICE
Dr. Hogue. Chairman Babin, Ranking Member Bera, and other
distinguished Members of the Subcommittee, thank you for the
opportunity to appear before you today to testify on regulatory
organizational frameworks that currently exist in federal law.
My brief oral statement will summarize my written
statement, which I previously submitted. This discussion is
intended to inform your consideration of potential approaches
to regulating space.
I will begin with a discussion of traditional frameworks in
which regulatory power is delegated to federal agencies. I will
then briefly discuss four regulatory models that involve quasi-
governmental or non-governmental organizations.
To begin with, I'll discuss traditional regulatory
frameworks. The most prominent means by which the federal
government compels conduct by private entities is through a
Congressional delegation of regulatory power to a federal
agency. In many cases, the agency is empowered to issue rules
that are consistent with this delegation and that have the
force and effect of law. Such rulemaking must follow statutory
procedures that provide the opportunity for public input. In
other instances, Congress has given a federal agency the
authority to control private conduct through the provision of
individual licenses. The licensee generally is required to
comply with certain conditions in order to maintain the
license. That summarizes the traditional regulatory regime.
I now turn to four alternative regulatory models involving
quasi-governmental or non-governmental entities. First, let me
discuss government corporations. Government corporations are
intended to perform a public purpose and are given corporate
form to provide certain private sector-like flexibilities
necessary to carry out that purpose. Each government
corporation is either wholly or partially owned by the
government. In some cases, government corporations engage in
regulatory activities pertaining to the products or services
they provide and the constituencies they serve. For example,
the Federal Deposit Insurance Corporation is one such agency.
Second, I'd like to discuss non-governmental standard
setting. Private standard-setting entities are voluntary
organizations that develop technical specifications for various
reasons such as to ensure that products from different
manufacturers are compatible with each other. In many cases,
federal agencies then promulgate regulations in which these
standards are incorporated by reference, thus giving them the
force of law. The types of organizations that get involved in
standard setting include, for example, testing laboratories,
professional societies, and independent committees affiliated
with trade associations. Congress has mandated that federal
regulators incorporate privately developed standards under
certain circumstances. Sometimes this mandate has been given to
specific regulators such as the Occupational Safety and Health
Administration. More broadly, federal law generally requires
that federal agencies use technical standards developed by such
entities. This mandate is to be carried out by consulting with
and sometimes working with these standards groups.
The third regulatory model I'd like to discuss entails the
establishment of federally chartered corporation with
congressionally sanctioned exclusive jurisdiction over an
activity in a specific quarter of American life. This kind of
federally chartered organization is not considered to be part
of the federal government. Congress has not vested such
entities with specific statutory regulatory authority or
mandates. Rather, the entity has been charged with operating in
a given arena consistent with private arrangements, existing
statutes, and other legal authorities. One example of this kind
of mechanism is the United States Olympic Committee,
established by law as a federal corporation. The USOC is
empowered to exercise exclusive jurisdiction over all matters
pertaining to the participation of the United States in the
Olympic Games and in the Pan American Games, and over the
organization of these events when occurring in the United
States.
Finally, I'd like to briefly touch on a fourth model: self-
regulatory organizations. These generally encompass private
entities formed by members of an industry in an effort to self-
regulate either because traditional governmental regulation is
impractical or because the industry hopes to deter governmental
regulation by demonstrating that the industry can effectively
supervise itself. In some cases, the SRO is purely private with
no involvement from the federal government. For example, the
International Association of Antarctica Tour Operators was
formed by private operators to establish procedures and
guidelines for travel to the Antarctic. Association members
must comply with these. The Association has been delegated no
authority by the United States government. Other SROs are more
significantly intertwined with the federal government. The
Financial Industry Regulatory Authority, or FINRA, is one such
self-regulatory body for broker dealers. FINRA was not created
by federal law but federal law does require individual broker
dealers to register with FINRA and comply with its rules. The
Securities and Exchange Commission plays a significant role in
supervising and overseeing FINRA's promulgation and enforcement
of rules.
This concludes my testimony. I would be happy to respond to
questions at the appropriate time.
[The prepared statement of Dr. Hogue follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Chairman Babin. Thank you, Dr. Hogue.
I want to thank all the witnesses for your testimony. We're
looking forward to hearing your comments and your answers. The
Chair now recognizes himself for five minutes.
First, Ms. Montgomery, does authorization and supervision
mean federal agency regulation?
Ms. Montgomery. It usually does. As we heard from the
Congressional Research Service, it doesn't have to. I think
that if we were to follow the Mercatus suggestion of a blanket
authorization, that would sort of codify the current state of
affairs, which is that if it's not forbidden for you to do
something, you can go do it, but I think the question of
continuing supervision gets a little trickier because someone
does have to go look at somebody and what they're doing and
inspect them or monitor them in some way, so I'm not sure the
blanket authorization gets us all the way there.
Chairman Babin. I understand. And one other for you, Ms.
Montgomery. One concern I hear from stakeholders of non-
traditional space activities is that they lack regulatory
certainty. They fear that the government will inhibit some
aspect of their operations, and wanting certainty and wanting
regulation are two different things. How do you recommend that
Congress or the Executive Branch put to rest these questions
and these uncertainties?
Ms. Montgomery. Well, I think a lot of the uncertainty
arises out of the mistaken view that Article VI prohibits
private activities in space unless they are authorized. I've
heard this from people in industry, from private practitioners
of the law, and it is not correct. The treaty doesn't say that,
and it is not necessary that you get authorized. One way of
looking at it is that we have space tourism now. It is not
subject to authorization or continuing supervision and yet no
one is concerned, and yet it is an activity, so everyone should
rely on the fact that the treaty is not self-executing and get
on with their business.
Chairman Babin. Thank you.
Dr. Dourado, in order to satisfy Article VI authorization
and supervision obligations, the Obama Administration proposed
the Department of Transportation have regulatory authority to
ensure consistency with international obligations, foreign
policy and national security interests of the United States.
This is an extremely broad grant of authority. What is the risk
of such a broad grant of authority and how else could Congress
or the Executive Branch address Article VI obligations?
Dr. Dourado. Thank you, Mr. Chairman. I think you're
absolutely correct, this is a very broad grant of authority,
and the only way to meet all of those criteria would be for the
Department of Transportation to consult widely with the
interagency. That will introduce a lot of friction, and I think
that's the number one risk, that it's going to just slow down
the process to such an extent that innovation cannot proceed. I
think another very serious risk is non-transparency as Mr.
Burnett testified that some of these rulings will be a black
box. There's no time limit on getting a response in the section
108 report.
So I think the broader risk is that companies that want to
engage in space activities will go abroad. They will seek flags
of convenience as they have done in maritime law, and they will
put investment in other countries instead of the United States
in order to establish a genuine link with those countries that
offer that service.
So I think that blanket authorization, as Ms. Montgomery
said, would codify the current state of affairs. This Committee
would be, you know, well advised to hold periodic, perhaps
annual hearings reviewing the state of commercial space as part
of its continuing supervision.
Chairman Babin. Thank you. Thank you very much.
One more. To my knowledge, no state has ever lodged a
complaint that the United States is in violation of Article VI
obligations. We've had a U.S. company successfully receive
payload approval for lunar missions. What exactly is the
Article VI problem that Congress is being asked to fix, and is
this an issue that could easily be fixed by the Trump
Administration taking executive action? And I'm directing this
to you, Ms. Montgomery.
Ms. Montgomery. I am not personally familiar with how easy
it is to prepare an Executive Order but I do think the
Administration could direct the federal agencies under it to
comply with the law regarding self-executing treaties and tell
them not to deny a license or payload determination or attempt
to regulate outside of their authority on the basis of existing
Supreme Court case law on non-self-executing treaties.
One caveat is, I'm not sure that the Executive Orders apply
to independent agencies such as the FCC so I see that as a
possible hurdle. The other option is, each of these regulatory
agencies could issue a legal policy statement quieting the
concerns of industry that things will be stopped on the basis
of Article VI. The 108 report itself is clearly based on this
mistaken assumption that it is--that Article VI stops private
activity, and also it is based on another mistaken assumption
that all of the Outer Space Treaty applies to all private
activities. In fact, it does not. Where the treaty wants to
make sure that something applies to private actors, it calls
them out by name. It refers to, you know, the acts of the
nationals or non-governmental entities but it only does that in
a couple places. So it is important to realize that the 108
report with mission authorization in it is based on two very
flawed premises and it should not be adopted.
Chairman Babin. Okay. Thank you so much. I've expended my
time, and I'd like to recognize Mr. Bera at this point.
Mr. Bera. Thank you, Mr. Chairman.
I think one of the dangers just kind of listening to the
opening statements is regulations are not inherently good or
inherently bad, right? When done appropriately, they provide
guidance and they provide some clarity, and I would imagine
from the commercial sector, you really do want some of that
guidance and clarity not to the extent that you stifle that
innovation but you have an understanding of what the rules of
the road are, and that really should be what our goal is, is
providing that guidance but at the same time anticipating the
challenges that might occur. An example would be, you know, I
think, Mr. Loverro, you brought up is what does happen, you
know, who's liable if a commercial entity launches a CubeSat
and it smashes into another state's, you know, let's say a
Chinese satellite or vice versa into one of our satellites.
What's the liability there? If we give blanket authorization as
the United States, are we held liable for that? Again, there's
no inherent problem in trying to anticipate potential
challenges and provide guidance and clarity.
I do have some concerns, when we talk about this blanket
authorization, I think, Ms. Montgomery, you talked about if we
were able to do that, well, then if you can do something, you
can go do it, but again, I worry about if you go do that and
something bad happens, that's not good for the commercial
sector because if an accident like that happens, that could
stifle commercial innovation as well, especially if there's a
big liability risk.
I guess I'd ask Mr. Loverro a question. If our goal is to
try to get that right guidance and anticipate the challenges
without stifling the innovation, we ought to be able to do that
and, maybe you can give us some guidance here and then maybe
Mr. Burnett also.
Mr. Loverro. Thank you, sir.
Let me first say that if the purpose of this hearing is to
figure out if the Outer Space Treaty mandates us do some
authorization, I think we're looking in the wrong spot. I'm in
full agreement with Ms. Montgomery and Dr. Dourado that that
shouldn't be the basis for why we go ahead and regulate. We
need to regulate for the good of America and for the good of
American business and for the good of American national
security, and I use the word ``regulation'' but I don't
necessarily mean regulation in the narrow sense but more in a
sense that Dr. Hogue has already introduced.
We need to make sure that space is safe for commercial
expansion, that space is a safe place for the United States to
go ahead and achieve economic superiority and to maintain
national security. Safety in space is unlikely safety in any
other domain. Collisions at sea sink to the bottom of the sea.
That doesn't happen in space. Things in the air fall to Earth.
That doesn't happen in space. They are limited in time and
they're limited in dimension. That does not happen in space.
The piece of the first collision that happened ever in
space are going to be up there for the next thousand years, so
we have to be very cognizant of the fact that there are some
rules that need to be created in order to go ahead and protect
U.S. space activity, whether national security activity or
economic activity, and quite frankly, not just from our own
commercial sector but the commercial sectors of other nations
that might have less control than we could have.
And the last thing that I would like to see happen is for
other nations to develop rules that we then become forced to
follow. That is not good for our industry. We need to lead. We
need to develop rules that are right for the United States, and
then we need to convince the rest of the world that those rules
are the ones they should follow. That's what we did in aviation
and the FAA. We created the rules, and then everybody else
followed. That's where we need to be because there's too great
of a risk to our commercial endeavors and too great of a risk
to our national security endeavors if we don't do that.
Mr. Bera. Great.
Mr. Burnett, if you want to just expand on that?
Mr. Burnett. Yes, I really agree with Mr. Loverro about
that. I think there's some really good reasons for having some
form of authorization and supervision. One of them is industry,
when they go to their regulator--excuse me--when they go to
their financers, when they go to their insurance brokers, those
people want some form of government authorization that they can
rely on. Internationally, we want to be able to hold other
nations to the same standards that we apply. And furthermore,
the foreign commerce that's going to be developed here requires
our industries, our new space industries, to engage in foreign
trade with foreign nations, and if those nations have the
impression that the United States is not living up to its
obligation under the treaty, there could be serious trade
problems.
Mr. Bera. I'm about out of time, or I am out of time, but I
would hope that on this Subcommittee we could start addressing
some of those issues and find that right middle ground where
we're not overburdensome but we also provide some clarity to
the commercial sector, which will allow the commercial sector
to thrive, and you know, let's write the rules as the United
States.
Chairman Babin. Thank you, Mr. Bera.
The gentleman from California, Mr. Rohrabacher.
Mr. Rohrabacher. Thank you very much, Mr. Chairman, and I
would like to thank you, Mr. Chairman, for organizing this
hearing. This is a level of discussion that we need to have
before we actually move forward with litigation--or
legislation, which brings litigation. Let me note that Dr.
Dourado, you said something right off the bat and made a
comparison which I think was very mind-expanding, for me
anyway. You were comparing the internet to what we're doing in
outer space. So we're comparing the science that we've achieved
for very tiny, small things, we're comparing that same science
to the expansion of the universe, which they told me in
astronomy that we were learning secrets up there that apply to
molecular structures here. It's a fascinating sort of insight
into the way the world works.
I have noticed that over the years as I have been trying to
figure out how the world works that government bureaucratic
regulation is actually the most efficient method known to man
for turning pure energy into solid waste. So that's one truism
that we have to deal with when we're looking at this. We don't
want to regulate and protect us to the point that we're not
able to do anything in space, and I believe that had the
internet been structured and we were permitted to tax the
internet right off the bat, we would have taxed it into
oblivion and regulated it into oblivion.
Yet we do know that libel laws and fraud laws are in force
even though they're over the internet. So there's a
relationship there that we need to establish that's a practical
relationship but with understanding the concept that we've got
something new; let's go get the most out of it but not throw
away every aspect of regulation that we talk about because
liabilities like libel and fraud are indeed part of our whole
legal system.
Let me just note that Mr. Loverro, you described the
scenario where a satellite or some object that we put into
space or someone else actually destroyed somebody else's space
asset. I think this is a real problem, and it's called space
debris, and I think what we're discussing today, Mr. Chairman,
is a treaty that was actually brought about and negotiated and
agreed upon at the height of the Cold War, at the very height
of the Cold War when I was in a place being shot at in 1967 by
Russian bullets, all right? And the bottom line is that if we
can do that in 1967, to try to further space cooperation, we
could do that today, and what we're talking about is not a need
for necessarily more regulation but maybe a methodology where
we can have more cooperation with people who are engaged in
space activities, and if we could work with the Russians when
they were the Soviet Union, we should certainly expand upon
that today to handle exactly the same target that you're
talking about, space debris, so that nothing that we are doing
in space or legalizing our private sector to do in space will
in some way inhibit other people and future generations to
utilize space, and space debris is something I would suggest
that, Mr. Chairman, this Subcommittee focus on and see if we
can come up with some cooperative effort internationally to
deal with that very same issue, and now you've got 30 seconds
to say you're brilliant or you really don't know what you're
talking about. So maybe we'll start down here with just a
comment. Any comment on----
Ms. Montgomery. I do think the liability issue is an
interesting one that you mentioned in the litigation context
but I don't think it legally mandates the United States to
regulate everything.
Mr. Rohrabacher. Right.
Dr. Dourado. Mr. Rohrabacher, I totally agree with your
assessment that just because we don't have to regulate
something in advance doesn't mean that there are no regulatory
mechanisms ex post, and I think it's very important to keep
that distinction, and that is the distinction I have in mind
and my colleagues have in mind when we talk about
permissionless innovation and the ability to do something
without ex ante approval doesn't mean that you can just get
away with absolutely everything.
Mr. Loverro. Sir, our time's over so I'll keep it short.
You're brilliant.
Mr. Rohrabacher. You're invited back.
Mr. Burnett. I'm not going to follow that.
Chairman Babin. All right. Time's expired. Thank you, Mr.
Rohrabacher.
Now the gentleman from Virginia, Mr. Beyer.
Mr. Beyer. Well, I want to begin, Mr. Chairman Babin,
Ranking Member Bera, thank you for doing this. This is
fascinating, although I have to take issue with Mr. Loverro
encouraging Mr. Rohrabacher.
Dr. Dourado, I'm fascinated by this whole idea of
permissionless innovation, and if I sort of think back through
the history of innovation, whether it's Marconi or Bell or
Edison or the internet or on and on and on, most of that seems
to have been permissionless, although I do worry, number one,
we have all this CRISPR X genetic technology now, especially on
germ cells, and worry about what permissionless innovation
might do there, and then I think Mr. Loverro in his written and
verbal testimony spoke very clearly about the one issue that
came to him as a Deputy Assistant Secretary of Defense about
the collision caused debris in space and that one case, they
had a 100 percent likelihood of a collision between a
commercially expendable small satellite and a major U.S.
national security asset. When we can see ahead of time that
there're going to be real problems with space debris, as Mr.
Rohrabacher said, doesn't that handcuff us a little bit on
permissionless innovation? Don't we have to--can we not
recognize that not everything can be addressed after damage has
been done?
Dr. Dourado. Thank you, Congressman. I agree with you that
CRISPR is a fascinating technology and I think that
permissionless innovation is where we will end up with that
because it is so hard to regulate. It is something now that can
be done in a garage by someone with minimal training, and I
think it will have major, major benefits for the world and also
some very serious challenges that even make me uncomfortable
but I think that we will adapt and it's that process of
adapting after the fact that is critical to permissionless
innovation in any domain from CRISPR to space.
Mr. Beyer. As long as we can recognize ahead of time that
there may be places where we can see a challenge coming.
Mr. Loverro?
Mr. Loverro. Yes, sir. Thank you very much. And I'm sorry
for encouraging Mr. Rohrabacher. I'll try not to do that in the
future.
So, you know, I very much want to be where Dr. Dourado is,
to say that everything should be permissionless, but that's
just not the way the world can work. There are some things that
absolutely need to go ahead and have rules drawn around them.
We see this all the time. I was sharing with Mr. Bera before
the testimony began about what the state of affairs driving
around San Francisco looked like in 1906 before there was any
traffic laws, and it was pandemonium, and that was fine when
cars were only going 5 miles an hour but if you really wanted
to create cars that could go 60 miles an hour, you needed some
set of rules to say which side of the road you needed to be on
in order to go ahead and do that. We couldn't have gone 60
miles an hour without a set of rules that said what side of the
road to be on.
The example that you stated clearly was a significant
national security concern. We had a license in front of us
under what I think is, and I agree with Mr. Burnett is an
overstrenuous regime in remote sensing but we had a license in
front of us, remote sensing under the current rules, that had
no problem with remote sensing but clearly was going to go
ahead and have an incredibly deleterious impact on a U.S.
national security satellite without question.
I quite frankly in front of this Committee I say I
overstepped my authority and I went to work with that form to
ask them to adjust their orbit, and they did because they're
concerned American citizens as well. But if they had chosen not
do that, I would have lost that case in court and we would've
had the potential that those settlements were lost.
Somebody needs to be able to have that discussion. It
doesn't necessarily need to be a bureaucrat from the Department
of Defense. It doesn't necessarily need to be somebody in the
Department of Transportation but somebody needs to be able to
just have the discussion of which side of the orbit are we
flying and how do we go ahead and make sure that we're doing
this to the benefit of all, and we want to have that happen
before the accident occurs because while we can legislate
after, we can't clean up after.
Mr. Beyer. Very quickly, Dr. Dourado also talked about
relaxing the access to the granularity of GPS data, and now
it's given rise to Uber, et cetera. I talked to somebody
recently, I think it was a geographer at the University of
Maryland who said there's yet another level of granularity that
would open up many new industries, and I don't remember whether
it was from 5 meters to 1 meter or 3 meters to 2 inches but do
you have any comment from a defense perspective?
Mr. Loverro. Certainly. I was a huge advocate on the DOD
side to go ahead and loosen all restrictions on imaging. The
rest of the world's going to do it anyway. We might as well be
in the lead. It made no sense. While there may have been some
time in the past where it made sense, it made no sense, and
quite frankly, at the very end of the last Administration, I
convinced the intelligence community of that very thing, and so
we're hopefully on our way to do that.
Mr. Beyer. Thank you very much.
Thank you, Mr. Chairman.
Chairman Babin. Yes, sir. Thank you, Mr. Beyer.
Our next questioner is the gentleman from Oklahoma, Mr.
Bridenstine.
Mr. Bridenstine. Thank you, Mr. Chairman.
I wanted to see if I could get consensus with you, Mr.
Burnett and Ms. Montgomery, because I think there's maybe some
inconsistencies regarding the self-executing concept that Ms.
Montgomery I think brought up, which I think is really
important.
You mentioned that we do have to provide authorization and
continuing supervision although it can be very minimal, which I
think would be of course appropriate. She mentioned that for
these non-traditional space activities, habitats, rendezvous
and proximity operations for maybe orbital servicing or
maneuvering satellites, station keeping, she suggested that
maybe we don't have to do anything under the Outer Space Treaty
because it's not self-executing, that authorization and
continuing supervision is sufficiently ambiguous that makes
bodies like this have to act, and since we haven't acted, we
don't have to regulate those programs. Is that correct?
Mr. Burnett. This is an extremely complicated subject.
Mr. Bridenstine. Sorry.
Mr. Burnett. I mean, I've heard discussions by legal
scholars that are totally confusing but I think here what we're
talking about and the difference between what Laura and I are
talking about is I'm talking about the obligation under
international law that the United States government has.
Mr. Bridenstine. So that might not be a treaty, it could
just be norms of behavior that have been established over time?
Mr. Burnett. It could be, but in this case, it is in the
treaty in Article VI. That's an obligation of the United
States. That is not an obligation on private actors. There is
no U.S. law that says you have to comply with Article VI.
Mr. Bridenstine. But under Article VI, correct me if I'm
wrong, we, the U.S. government, have responsibility for those
private actors, which is seemingly self-executing because that
is not ambiguous.
Mr. Burnett. Again, it's self-executing in the sense that
it is a requirement on the U.S. government. It's not a
requirement on a private entity.
Mr. Bridenstine. Okay. So do you agree with Ms. Montgomery?
Let's do that.
Mr. Burnett. In part.
Mr. Bridenstine. Okay. Did you want to address this, Ms.
Montgomery?
Ms. Montgomery. Yes. I would suggest that we should
consider whether it's even self-executing on the U.S.
government because it speaks of future activities, and the
Supreme Court law that we see on that issue has us look at
whether something has to take place in the future even when
it's directed at the government itself.
Mr. Bridenstine. And I heard you use the example of
tourism, that we've been doing that and there is no
authorization or continuing supervision. I would argue that
there has never been a tourist that launched on a commercial
rocket but only government-owned and -operated rockets, which
puts it at a different level.
Ms. Montgomery. Dennis Tito was a private person but I like
your----
Mr. Bridenstine. But he was on a Soyuz rocket, correct, a
Russian Soyuz rocket?
Ms. Montgomery. An American on a Soyuz rocket, a private
American. But I do like your point about the levels because it
goes to the question of whether something is important or scary
enough to be regulated, and I think mining is a great example
of that. Here on Earth, mining is dangerous. There's cave-ins,
there's landslides, there's emissions, there's runoff, your
neighbors get hurt, you know, bad things can happen from
mining. But if you've got a robot mining an asteroid far away
from everyone else, do you really need to supervise that or
authorize that?
Mr. Bridenstine. So when you talk about a robot mining an
asteroid far away, that in my opinion probably doesn't need any
regulation, but when you talk about a robot servicing a
satellite in low-Earth orbit or even geostationary orbit and
that robot of course is doing rendezvous and proximity
operations, and of course, we have threats all around the
world--Russia, China--that would claim that that would be a
threat to their sovereign assets in space, and of course then
as Doug Loverro has correctly identified, that gets the
Department of Defense involved immediately along with the State
Department, and according to your testimony, you suggested that
the FAA can override the Department of Defense and the State
Department for these non-traditional space activities because
you said in your testimony that the FAA has the ability to make
foreign policy apart from the State Department and could
override them. Is that correct?
Ms. Montgomery. I did say that, but one thing to keep in
mind is that the FAA does not have authority on orbit so it
could only override it for launch and reentry where it has
authority, not where it----
Mr. Bridenstine. So who has the authority in orbit?
Ms. Montgomery. On orbit for rendezvous and proximity
operations, right now, no one does, but that's okay under
Article VI.
Mr. Bridenstine. Okay.
Ms. Montgomery. I don't disagree with my colleagues that if
you have an actual safety concern----
Mr. Bridenstine. So let me ask you----
Ms. Montgomery. --you can regulate but it's not because of
Article VI.
Mr. Bridenstine. Would the State Department permit that
launch to take place if the FAA authorized it and there is a
risk--again, it wouldn't be our risk but it would be the
Chinese or the Russians claiming that there's a risk to their
sovereign assets, and of course, that starts the negotiating
process. Would the FAA override that whole negotiating process?
The important thing that I think we need to take away from this
is that we have to have a mechanism to initiate the interagency
process that ultimately results in an authorization, and Mr.
Chairman, I know I'm out of time. If there's an opportunity to
do a second round, I'd be very grateful.
Chairman Babin. Thank you, Mr. Bridenstine.
Now the gentleman from Colorado, Mr. Perlmutter.
Mr. Perlmutter. Thanks to Drs. Babin and Bera.
Just a couple comments and then some questions. So Mr.
Bridenstine and I are often on the same page on this kind of
stuff, and we're on the same page again. But I do want to
respond to a couple of partisan shots that were taken early on
in statements, and you know, Dr. Babin said couldn't something
be easily done fixed by the Trump Administration. I'm not sure
anything can be done easily by the Trump Administration because
they're taking so much time worrying about Russia, which
Professor, is the elephant in the room, okay? So having said
that, as a lawyer, you know you say freedom but there is no
freedom in chaos and there has to be some organization here,
and to you, Ms. Montgomery, you talked about brushing teeth,
okay? I'm glad we're not regulating brushing teeth but you do
need regulations for safety at the intersection down the block
so that you're not in a crash and you have to have regulations
as to property. So the title to my home, you know, we don't
need the Wild West where somebody can come in and bump me out
of my home and say well, wait a second, there's no regulation
to title, you don't own it because the Constitution of this
country ensures property rights, and so when you're talking
about the robot on some distant asteroid, you know, maybe we
don't need OSHA rules as to that robot but we do need rules as
to the property because my clients always wanted to know that
if they were going to invest something that they were going to
own it. So that's my rant for a second.
And to you, Professor, I would just say I agreed with your
sort of synopsis because Article VI has two other sentences
besides just the one that Ms. Montgomery read, which I thought
you did a very nice job trying to interpret that sentence but
as a lot of judges would have said to me, nice try, that you
don't quite get there. There is some level between the Wild
West and a police state where we need some level of regulation,
and we do have that responsibility under Article VI.
And so Professor, you talked about a light touch or a heavy
tough, or regulatory heavy and regulatory light. I mean, where
do you really think we should be? Because we don't want to stop
innovation here but we also need to be able to protect property
rights and safety and defense. So the floor is yours, sir.
Mr. Burnett. Well, I actually prefer the regulatory light
approach but I agree with you, there are certain things that we
need to protect, and I think we can do that. I think we could,
for example, have a registration kind of authorization where
the actor or the proposed actor in space would register their
activity, and I think you can define what that activity is.
It's operation of a space object or it's the building of a
facility on the Moon. I mean, those are quite clearly covered
by the treaty. Define those and say okay, as soon as you
register, you're authorized, and then you can provide the
authority for the President or whoever you give the authority
to to step in under certain circumstances and revoke that
authorization if certain criteria are met but those criteria
have to be clear. They can't be ambiguous and they can't be
arbitrary.
Mr. Perlmutter. Okay. Ms. Montgomery, I mean, how as a
lawyer would you go about protecting your client's property
rights after they've spent $100 million to get to Asteroid X to
start mining, and let's say the Russians say wait a second,
that's ours? What are you going to do?
Ms. Montgomery. I would agree with you.
Mr. Perlmutter. Good. Thank you.
Ms. Montgomery. Because the treaty does have a rather scary
provision in Article II in which it forbids national
appropriation of objects in outer space. Fortunately, to some
extent, that was cured by the Commercial Space Launch
Competitiveness Act of 2015, but there are a lot of legal
scholars out there who claim that it forbids private property.
I do not agree with them, and I completely agree with your
perception that there's a need for agreements and rules of the
road usually from governments in property-right areas so that
people can have title, so that they can get collateral, so that
they can have certainty and plan for the future, and I do think
that there are legal theories that would support private
property in outer space even further than was taken in 2015 by
this Congress. So in that respect, I'm in agreement.
On the Article VI, if I could, the point I'm making is a
narrow legal one. We might see a need to regulate something but
it should be the normal approach that Congress takes to whether
there's a need to regulate something on the ground. Is there
someone at risk? Is there a safety problem? Not just because
Article VI says we have to regulate everything. It doesn't, and
we shouldn't.
Mr. Perlmutter. No, and I agree with that, but I think
given safety and property, there's got to be some role, and I
think that that article does require that role, and that's kind
of why I was agreeing with that light touch versus heavy touch,
and I yield back to the Chair.
Chairman Babin. Okay. Thank you.
And I must add that I didn't think I was firing a partisan
shot when I said that I was looking forward to working with
this new Administration when they develop a formal position on
space.
Mr. Perlmutter. It wasn't you, it was Chairman Smith when
he said the Obama Administration blah blah blah.
Chairman Babin. Okay. All right.
Let's see. The gentleman from Arizona, Mr. Biggs.
Mr. Biggs. Thanks, Mr. Chairman. Thanks to each of the
panelists for being here. This has been very interesting.
Dr. Dourado, you talked about the development of the
internet and permissionless innovation, and you basically
talked about ex post manner of remedies for any basic liability
or damage that might have occurred in the development of the
internet. How do you see that working in space? Tell me about
that. Is an ex post remedy always the best remedy?
Dr. Dourado. Well, Congressman, thank you for the question.
I think it needs to be combined with many other steps. So first
I would say that I would like the U.S. government to provide as
many informational resources as possible to private actors in
space in order to prevent accidents in the first place. So
there already is an active involvement between--collaborations
between satellite operators to pull data on space situational
awareness, and to the extent that the United States is willing
to supplement that information or provide information about
best practices and so on, in order to prevent harms in the
first place, I think that that would be welcome. I think second
would be welcoming and respecting the self-determination and
self-regulation that is being already occurring in space.
Third, I think courts are a very general--general fallback
mechanism for when prevention is inadequate. We apply court
decisions to so many other aspects of our lives, space is
surely a unique domain but is it really so special that courts
are not competent to address the harms that arise there, and I
would submit that perhaps not. Perhaps courts can play a useful
role in the--in ensuring that space is as safe possible.
Mr. Biggs. And Dr. Dourado, courts don't always act ex post
the issue as we heard earlier Mr. Loverro talking about the
incident. It was taken care of outside the court, it was
cooperative and collaborative in nature, but there are remedies
ex ante, potential incidents as well. So I assume that we would
all agree that we don't necessarily like litigation, having
been a trial lawyer myself, but I actually liked it. But it
isn't always necessary to partake in that.
So the other thing I wanted to ask you, Dr. Dourado, and
I'm going to quote from your statement. ``I urge the Congress
to consider blanket authorization for all non-governmental
operations in space that do not cause tangible harm to other
parties, foreign or domestic, in their peaceful exploration and
use of outer space.'' I am interested in the term you used,
``tangible harm,'' and I wanted you to expand on that, please.
Dr. Dourado. Sure. The reason I used that term is that
Article VI refers to potential harm, and I think that that is a
very expansive term and could be used to prohibit absolutely
anything. Anything in space is potentially harmful. And what
Article--what the Outer Space Treaty would require would be for
the United States to consult as appropriate where we cause
potential harm to the activities of other state parties. And so
simply deeming it not appropriate to consult every time there's
potential harm but not tangible harm is within the scope of
Congress's authority.
Mr. Biggs. Thank you.
And Mr. Loverro, I'm going to quote you now. You said
``There are many ways to skin this cat,'' and so I'd like you
to, if you would, explain your preferred policy recommendation
to this Committee.
Mr. Loverro. Yes, sir. Thank you very much.
I think I'm in very strong agreement with Mr. Burnett and
some of the things that Dr. Hogue has said here. I do believe
that we need some very basic safety regulation that would
ensure that we don't have unmitigated collisions in space, and
that--as a former private pilot, if I was flying by visual
flight rules, I knew there were certain altitudes I could fly
at and certain altitudes I couldn't fly at. If you're an
unguided small sat, then you should stay below the orbit of the
Space Station because otherwise you have the potential to hit
it, and that should be a simple rule that doesn't require
regulatory oversight. It's simply a rule that everybody knows
you can follow.
Mr. Biggs. Are you suggesting something akin to filing a
flight plan?
Mr. Loverro. Not so much a flight plan but the knowledge
that a rule exists, certainty of what rules exist, and what
rules do not exist, rules that you have to follow, and that
allows then the authorization and registration that Mr. Burnett
talked about to occur because you now will register within
accordance of those rules. This doesn't require a government
entity now to go ahead and give permission. It simply provides
a set of rules that exist to ensure safe spaceflight.
Mr. Biggs. So you would be saying that by filing something,
registration basically, that that meets the authorization
requirement of section 6?
Mr. Loverro. Right. Well, as I said earlier, I'm not a
lawyer and I don't actually believe that what drives us should
be section 6.
Mr. Biggs. Okay.
Mr. Loverro. I think what drives us should be what's good
for America.
Mr. Biggs. Thank you.
Thanks, Mr. Chairman.
Chairman Babin. Okay. Thank you.
It's been requested, and I think we'll grant an extra two
minutes for questions for whatever membership would like to do
so, and so Mr. Bera, I'd like to call on you.
Mr. Bera. Great. Thank you, Mr. Chairman.
Chairman Babin. Oh, okay. Hold on. Let me back up because
I'd like to recognize myself first--I apologize--as the
Chairman. Sometimes I forget my leadership position here.
Mr. Burnett, in the Outer Space Treaty and the Liability
Convention, the United States agreed to be liable as a
launching state. This raises concerns about whether the United
States should impose more regulation on the private sector in
order to protect against liability. How could bilateral
agreements and reciprocity mechanisms be used to mitigate
against liability for the United States as a launching state?
Mr. Burnett. Well, I'm not sure that the activities we're
talking about here really raise any serious issues of
liability. Now, they might in the future. But if you look at
what we've done with our responsibility for liability in the
launch area, we have a requirement for insurance, but that
requirement doesn't extend to satellites that are communication
satellites. It doesn't extend to remote sensing satellite
because the risk of some liability really occurs on the launch,
it doesn't really occur in space because on the launch you've
got a potential of absolute liability but once you're in space,
you're in the fault regime, and when you're in a fault regime,
you have to prove that there's been negligence or something
like negligence, and the liability is a national liability, and
so the issue of the liability of one nation to another nation--
it's not from one nation to a private party--becomes a
political issue.
Chairman Babin. Right.
Mr. Burnett. So there are other ways to solve it other than
requiring insurance or posting a bond or something like that.
Chairman Babin. Okay. Thank you.
And just one more. Ms. Montgomery, is the United States
liable for all private sector activities under the Outer Space
Treaty?
Ms. Montgomery. I do not believe that is the case. Under
both the Outer Space Treaty and the Liability Convention, we
see that a country is liable if it is a launching state, and
there are only four ways to be a launching state. It's going
from your territory, your facilities, the government is
procuring the launch, and then there's liability for private
actors which take place off the ground, and as Dennis said,
that's fault-based. But--so there's limits on what activities
United States would be liable for, and it's not for everything.
Chairman Babin. Okay. Thank you.
Now I'd like to call on the gentleman from California, Mr.
Bera.
Mr. Bera. Thank you, Mr. Chairman.
A quick question, Mr. Loverro. Several stakeholders have
cited the interagency review process for commercial remote
sensing licensing as a process that's led to undue delays,
stifled innovation, economic capabilities and commercial
operations, and one of the reasons why we shouldn't--the
interagency review should not be any part of this mission
authorization approach. Is this a valid concern? If so, why?
And if not, why not?
Mr. Loverro. So sir, I will tell you that I think it is a
valid concern that that licensing regime has stalled
innovation, and quite frankly, again, it goes back to what Mr.
Burnett said. The black box that went in was undefined and
people within government, all right-minded, mind you, defined
it as they would, and I personally worked against that in order
go ahead and make that free, to try to go ahead and truly get
down to the concerns that Congress had expressed in the
statute, which is show me that there's a true national security
harm and then we should go ahead and regulate or prohibit but
otherwise don't regulate or prohibit.
I think this is the same problem we're dealing with here.
Interagency review is important. The interagency has a
different perspective. But that interagency review needs to be
bounded. We can't just tell the interagency you have authority
to do this and leave it up to them to decide on what basis they
will make those decisions because we bureaucrats tend to go
ahead and accumulate power that we were never intended to have.
So I think we need to be clear. Your concern is a safety
concern. Make sure there's no collision. Your concern is this
concern. Let's be very clear about what we're giving them
authority to do and then allow that interagency process to do
that within those limited bounds.
Chairman Babin. Thank you, Mr. Bera.
Now I'd like to call on the gentleman from Oklahoma, Mr.
Bridenstine.
Mr. Bridenstine. Mr. Chairman, I have a letter here from
Dr. Mark Sundahl I'd like to enter into the record. He's a
Professor at the Cleveland Marshall College of Law.
[The information appears in Appendix II]
Chairman Babin. That'll be noted.
Mr. Bridenstine. Okay. I wanted to bring to the attention
of the panel here, and I know there's agreement and
disagreement maybe about how Article VI should be applied.
Dr. Sundahl disagrees with the panel. I like your position
better, Ms. Montgomery, quite frankly, but one of the things he
says is, ``However, the need to adopt a bill''--he's talking
about some kind of bill for starting an interagency review
process--``is equally driven by industry demand for regulatory
clarity,'' and I would say not just regulatory clarity but
certainty and permanence so from one Administration to the next
there's not this ambiguity.
And your testimony, Ms. Montgomery, clearly indicated the
same thing when you say ``However, since the issue of what
Article VI means has created legal and regulatory uncertainty,
Congress could lay that uncertainty to rest with a directive to
regulatory agencies to abstain from using the lack of federal
oversight of a particular activity as a reason to deny a
payload review.'' So we're talking about a directive to
regulatory agencies to abstain from denying a payload review, a
launch, a reentry license or authorization for satellite
transmissions or remote sensing.
Mr. Chairman, I fully agree with this, and if we can get
that kind of certainty that creates the agencies from
abstaining from those kind of activities on these non-
traditional space activities, I fully support it. One of the
challenges that is there, Ms. Montgomery, you say there are
clear advantages to this path. It would of course create
certainty, which would be good. We want that certainty, which
is helpful to industry's quest for innovation and investment.
So there is currently uncertainty. I think everybody agrees
with that. That uncertainty is creating a challenge to
innovation and of course capital investment, which is what Ms.
Montgomery said here.
The question is this: if we can't pass this bill that makes
these agencies abstain from denying these activities, what do
we do then? At that point, do we just accept the limitation on
innovation? Do we just accept the fact that it's going to
preclude capital formation? That's my question, Ms. Montgomery.
Ms. Montgomery. No.
Mr. Bridenstine. We don't accept it?
Ms. Montgomery. We don't accept it.
Mr. Bridenstine. But we'd have another approach?
Ms. Montgomery. Yes. The fact of the matter is that my
recommendation is basically codification of the existing state
of the law. We go look at the Supreme Court opinions and we
apply them correctly and properly and knowingly, and say look,
we can't stop you from going because we don't have a self-
executing treaty here.
Mr. Bridenstine. So Mr. Loverro, what would the State
Department or the DOD have to say about that?
Mr. Loverro. Sir, I think we would be concerned about that
kind of approach. While I am absolutely 100 percent in favor of
innovation and experimentation in space, there are implications
that transcend our Article VI treaty obligations and rather go
ahead and move into things like the United Nations Treaty and
the need to go ahead and practice secure defense, the need to
avoid harm to other nations' property. We have requirements
throughout our landscape that assure that actions the United
States take doesn't harm other nations, and in this case,
actions we take in the commercial world doesn't harm other
commercial operators.
I think--again, I am very much of the mind that we need to
do as little regulation in this realm as possible but we do
need to assure that our actions don't harm our own companies,
our own national security or interest of other nations.
Mr. Bridenstine. Thank you, Mr. Chairman. I yield back.
Chairman Babin. You're welcome.
And now Mr. Beyer.
Mr. Beyer. Thank you, Mr. Chairman. I think it is pretty
cool that we have two doctors leading this Subcommittee, on the
Science Committee. That's a good thing.
It seems to me that the whole idea of this hearing was
trying to figure out how we respond to the spirit and letter of
Article VI, you know, light regulation, heavy regulation,
permissive innovation and all that. I was fascinated by
something in Mr. Burnett's testimony, and this goes back to
1967, and let me quote.``Ambassador Goldberg used the term
`self-executing' to apply to provisions of the treaty that are
to be understood to be subject to no further conditions and no
further refinements such as Articles IV and VI, or IV and V.
Ambassador Goldberg distinguished these provisions, Article IV
and V, with other provisions of the treaty that are understood
the statements of general principles, principles that state a
worthy purpose, that need further study, exploration and
elaboration to develop the rules to govern the use of outer
space. Following this line of reasoning, only the treaty
provisions that were understood not to be subject to further
refinements should be considered as provisions that are
required conditions of the authorizations required by the
treaty.''
If I read all this, does that mean that Article VI is now
moot, irrelevant and we didn't need this hearing at all?
Mr. Burnett. In my interpretation, the answer to that is
no, Article VI is one of those provisions that we've agreed is
going to apply immediately, just like the obligation not to put
in orbit nuclear weapons, not to put military facilities on the
Moon or other celestial bodies. I think Article IV falls into
that category. I think there are other provisions in the treaty
that clearly were identified by Ambassador Goldberg to be
things which we are going to study and that we hadn't really
reached a consensus on how to go forward on those.
Mr. Beyer. And that would be Article VI?
Mr. Burnett. No, that would not be Article VI.
Mr. Beyer. Not Article VI? Okay.
Mr. Burnett. Correct.
Mr. Beyer. All right. Great. Thank you very much.
Mr. Chair, I yield back.
Chairman Babin. Yes, sir. Thank you.
Now I'd go to Mr. Biggs, two minutes.
Mr. Biggs. Thank you, Mr. Chairman.
Chairman Babin. Yes, sir.
Mr. Biggs. I feel bad for Dr. Hogue because you've been--I
want you to know your testimony was not ignored so I have a
question for you, sir. I saved it for my last effort.
You talked specifically about non-governmental
organizations that regulate certain conduct and activities such
as the International Antarctic Trade Organization and FINRA. My
question for you is, can you describe whether those have been
successful achieving their organizational ends?
Dr. Hogue. I don't have a good answer for you on that but
I'd be happy to go back and provide that after the hearing.
Mr. Biggs. Well, thank you. You've set me up to move right
on over to the rest of the panel, which is, is there any
organized cooperative or collaborative effort to address some
of the issues we've been talking about today, internationally,
that you're aware of, and if so, can you please describe those
briefly? And I guess we'll just start with--several of you are
nodding your heads. Ms. Montgomery first, please.
Ms. Montgomery. Yes. The U.N. addresses a lot of the debris
issues and has issued guidelines on them. There is also an
industry association, the Space Data Association, that
coordinates amongst themselves as to--so as to make sure they
don't bump into each other and cause debris.
Mr. Biggs. Dr. Dourado, in our previous exchange, you
mentioned, essentially I'll say transparency from governmental
organizations as to where their space debris or space
activities are. Can you elaborate on that, please?
Dr. Dourado. Certainly. The Department of Defense currently
has much higher-resolution data on space situational awareness
than does the Space Data Association that Ms. Montgomery
referenced, and I think it would be useful for the U.S.
government to share some of that data with the private sector
in order to improve their capabilities.
Mr. Biggs. Thank you.
Mr. Chairman, I'd ask that the witnesses be allowed to
answer the questions.
Chairman Babin. Yes.
Mr. Biggs. Thank you.
Mr. Loverro?
Mr. Loverro. Yes, sir. Thank you.
As Ms. Montgomery said, there are several activities under
sponsorship of the U.N. One of them that my office was heavily
involved in is called CPUOS, the Committee on the Peaceful Uses
of Outer Space, that were trying to go ahead and look at what
kind of rules would we need to use internationally to guide our
use of space. I found it quite frankly very unfortunate that
the United States had not established its own rules first that
we could then take to CPUOS and convince others to use. We had
done this in the debris guidelines that were mentioned earlier.
NASA developed a set of standards, guidelines, on orbital
debris that we then took as a nation to CPUOS and convinced the
rest of the world they should follow. That's good for the
United States. We should do it again here. We should have a
position in CPUOS other than to say we have no position because
that leaves the floor open for others to go ahead and insert
their position.
Mr. Biggs. Thank you, Mr. Chairman.
Chairman Babin. Yes, sir. Thank you.
And now I'd like to call on the gentleman from Florida if
you have some questions for 2 minutes.
Mr. Webster. Thank you, Mr. Chairman.
Ms. Montgomery, in the Outer Space Treaty, is the United
States liable for all activities, private activities?
Ms. Montgomery. No, sir, it is not. It has to be a
launching state or it has to be internationally responsible for
damage on orbit. So there are limitations to that. You have to
be the territory or facility from where an object is launched
or you have to be procuring it, and if those criteria are not
satisfied, then the United States is not a launching state and
not liable.
Mr. Webster. Do you have any concerns about that?
Ms. Montgomery. I think that if the United States is not
liable, then the private actor will be liable, so whoever is
damaged will be made whole by bringing a suit against the
actual causer of the damage just like in the rest of life.
Mr. Webster. Would there be a need for a statutory
provision in order to accomplish that?
Ms. Montgomery. No, sir.
Mr. Webster. Thank you.
I yield back.
Chairman Babin. Thank you.
I want to thank the witnesses for their very valuable
testimony and the members for their questions. It's been very
informative. The record will remain open for two weeks for
additional comments and written questions from members.
And with that, this hearing is adjourned.
[Whereupon, at 11:52 a.m., the Subcommittee was adjourned.]
Appendix I
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Answers to Post-Hearing Questions
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Appendix II
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Additional Material for the Record
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