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Gabronywicz

Written Testimony Before the Subcommittee on Space of the Committee on Science, Space, and Technology U.S. House of Representatives

Joanne Irene Gabronywicz*

Chairman Palazzo, Ranking Member Edward, Members of the Committee: Thank you for giving me the opportunity to address H.R. 5063, the American Space Technology for Exploring Resource Opportunities in Deep Space Act (ASTEROIDS). You have provided four questions on specific issues, and I am delighted to respond.

I. “Provide feedback on H.R. 5063, the American Space Technology for Exploring Resource Opportunities in (ASTEROIDS) Deep Space Act.” [1]

All of this written testimony is my “feedback” on H.R. 5063. Under this particular question, I will address one issue.

The issue addressed under this section is the need to more clearly identify which federal agencies will be relevant to private sector asteroid resource exploration and utilization and the specific responsibility of each agency. As written, the only standard used in H.R. 5063 to determine agency jurisdiction is “appropriateness.”[2] It does not designate who determines which federal agency is an “appropriate” agency and for what purpose. Jurisdictional disagreements are the reality of everyday federal administration and politics. Resolution can be difficult and take a long time.

In general, federal agencies can use the authority granted to them in executive orders and their organic statutes to reach agreements that define the scope and implementation of their collaborative activities. These can take the form of interagency agreements, memoranda of understanding, etc. However, to be effective and to have the authority necessary to carry out an agreement’s terms, the agreement ought to be entered into at a high level. To occur at a high level, there must be practical and political incentives strong enough to bring the agencies to discussions. An example of this is the 2012 Memorandum of Understanding Between the Federal Aviation Administration (FAA) and the National Aeronautics and Space Administration (NASA) for Achievement of Mutual Goals in Human Space Transportation.[3] The Shuttle was retired and responsibility for transportation to the International Space Station (ISS) was shifting from the government to the private sector. The FAA had the authority to regulate; NASA had the human spaceflight expertise; the Nation needed transportation to the ISS. An agreement was reached at the level of associate administrator. It is unclear whether asteroid resource exploration and utilization will command this kind of attention when needed.

Private sector asteroid resource exploration and utilization is an unprecedented enterprise.  It will raise novel issues requiring a wide range of entrepreneurial, technical, economic, legal, policy, space situational awareness, and diplomatic expertise. No one agency houses all that will be needed. Absent a clearer statement of which agency is responsible for what kind of regulation, an unpredictable over-regulated environment that relies on ad hoc dispute resolution could be created. It will produce unnecessary risk that is counterproductive to industry. 

An interagency structure analogous to the ones that formally govern the Global Positioning System (GPS)[4] and commercial remote sensing[5] ought to be considered. These feature a formal agreement among a lead agency and other agencies to work in coordination. Each agency houses a particular expertise relevant to some specific aspect of the industry.

II. “How does current law provide an industry whose purpose is to potentially extract resources from asteroids?” [6]

Current law that addresses an industry whose purpose is to potentially extract resources from an asteroid is an amalgam of space and nonspace laws that address existing commercial activities. United States law regulates launches and reentry; the technology, financing, and behavior of various payloads; as well as related activities, for example, intellectual property and export and import control. Laws were promulgated for specific space-related applications as their technologies matured and were available for commercialization: communications satellites; launch vehicles and services; remote sensing; and GPS. To the extent that a private asteroid mission uses any of these applications, the laws that govern the applications will also govern the part of an asteroid mission that employs them. For example, an asteroid mission launched or operated by a U.S. citizen will require a launch license from the U.S. Department of Transportation/FAA/Office of Commercial Space Transportation.[7] Depending on its use of communications spectrum and equipment, it will likely also need a license from the Federal Communications Commission.  If advertising in space is part of the business plan of an asteroid mission, the advertising must be “nonobtrusive.”[8] The Department of Commerce/National Oceanic and Atmospheric Administration is responsible for licensing commercial remote sensing and has already determined that due to the profile of one planned private asteroid mission, it will not require a license. The license requirement could change for other missions with different profiles.

There is one federal court case regarding an asteroid claim.[9] The plaintiff alleged “ownership” of Asteroid 433/Eros based on a “registration” claim made by him at an online “registry.” He asserted that NASA infringed his “property rights” and sought compensation for “parking” and “storage” fees as well as special damages. He sought declaratory judgment for five causes of action based on the Fifth, Ninth, and Tenth Amendments to the United States Constitution.[10]  The plaintiff did not raise the issue of whether natural or juridical persons could claim asteroids.[11] The case was dismissed by the district court and lost on appeal. The court held that the plaintiff/appellant did not present a claim for which the district court may provide relief.

Despite this relevant body of law there are “gaps” in the law that will have to be raised by private sector asteroid resource exploration and utilization. Some of them are known. Some are not. This will be addressed in the next section.

III. “What are the greatest challenges to legislating and regulating an industry of this nature?” [12]

One of the greatest known challenges to legislating and regulating an industry of this nature is establishing uniform licensing and regulations of the activities on-orbit and at the asteroid. This is often referred to as “on-orbit authority.”

Space, itself, is a global commons and is governed by international law.[13] However, as a State-Party to the Outer Space Treaty the United States is obligated to authorize and continually supervise the activities of non-governmental entities in outer space.[14] The United States meets this obligation through federal licensing regulations. Objects that go into space are licensed, registered on the U.S. registry, and are governed by U.S. law.

At this time, no agency has a specific Congressional grant of on-orbit authority. The FAA has authority to license launches and reentries. It does not have authority to license a private sector object that is intended to stay in orbit for a period of time.[15]

Some contemporary space issues such as orbital debris, space traffic management, planetary contamination by Earth-originating missions, and satellite servicing have caused some agencies to take regulatory action or make internal procedural requirements that go beyond licensing and operating satellites. For example, NASA promulgated a technical standard that seeks to limit the post-operational life of a space object to 25 years.[16] The FCC adopted this standard as a formal rule for satellites it licenses.[17] The FCC also requires license applicants to file a plan to avoid debris creation and deorbiting the satellite at the end of its life. Different procedures are required for satellites in low Earth orbit and those in geostationary orbit. NOAA reviews commercial remote sensing license applications for post-mission disposal on a case-by-case basis.[18] The Planetary Protection Subcommittee of the NASA Advisory Committee has recommended reviewing commercial activities to prevent outbound contamination.[19]

Taken together, these administrative actions demonstrate attempts at a nascent on-orbit authority. There needs to be a specific coordinated grant of on-orbit authority to the agencies that are best suited to legislate and regulate an industry of this nature. Finally, as space law follows technological development,[20] legislation and regulations must be flexible to adapt to new technologies.

IV. “What particular issues should be considered in proceeding with legislation of this kind, i.e., potential impacts on international treaties?” [21]

The potential legal impact of this kind of legislation on international treaties is likely to be modest. The potential political impact of this kind of legislation on the international treaties is likely to be sizable. Disagreement should be expected as to the meaning of this kind of legislation. Opinio juris is crucial to the development of international space law and the meaning of treaties.[22] Without it, potential legal results cannot be realized. The legal status of some of the issues contained in the proposed bill is unclear and the concomitant international politics are highly contentious. It is to be expected that opinio juris will be further divided on some of the issues presented in this bill.

The international space law legal regime contains a number of well- accepted legal principles: nonappropriation of space by nation-states;[23] a liability regime;[24] and national supervision of nongovernmental entities,[25] for example. However, what constitutes customary legal principles of international space law beyond the well-accepted principles is uncertain. Only those issues most relevant to private sector asteroid resource exploration and utilization will be addressed here.

There is a distinction between the appropriation of territory and the appropriation of natural resources. The treaty regime is clear that appropriation of territory is prohibited.[26] The treaty regime[27] is unclear and contradictory regarding the appropriation of natural resources.  Although there are specific provisions proscribing appropriation there are also specific provisions for the “exploitation of…natural resources.”[28] There are also specific provisions that permit the placement of “personnel, space vehicles, equipment, facilities, stations and installations”[29] needed to extract resources. Further the appropriation of resources appears to be among the rights included in the “use” clauses of the treaties.[30]  Taken together, the plain meaning of the word “use” in all of these provisions as well as the clearest and most important treaty provisions[31] indicates that the drafters and the signatories approved of the use, including extraction, of outer space resources.

What remains unclear is the ownership status of the resources when they are collected. Unlike other global commons[32], no agreement has been reached as to whether title to extracted space resources passes to the extracting entity. On the high seas, for example, it is long settled law that title to fish extracted from the ocean passes to the extracting entity. On the seabed “title to minerals shall pass upon recovery in accordance” with the governing treaty.[33] In the Antarctic mineral resource activities are to be conducted in accordance with the terms of the Antarctic Treaty System.[34] In the absence of agreement legal opinion, opinio juris, is divided regarding the ownership status of extracted space resources.[35]  Unsurprisingly, much of it divides along lines of political opinion.

In sum, the treaty regime does seem to allow asteroid resource exploration and utilization entities to extract resources if those activities are consistent with international law and United States obligations. There is no legal clarity regarding the ownership status of the extracted resources. It is foreseeable that an entity’s actions will be challenged at law and in politics.

Related to the issue of extraction is the definition of “commercial.” In the United States, the term “commercial” is defined by who the actor is. “Commercial” means the “private sector.” In most of the rest of the world including in western, industrialized democracies, “commercial” is defined by what the actor does. In those nations, “commercial” means “generates revenue.”[36] In the systems that use this definition, governments can, and do, generate revenue through commercial activities. The definition of “commercial” as it applies to space has also been discussed in the United States Congress.[37] The draft bill uses the term “commercial entities” and “private entity” interchangeably. This bill, were it to become law, will draw the attention of the international space community.  It would be prudent to clarify that the intent of the law is to facilitate the commercial activities of the United States private sector.

As with the ownership status of extracted resources, there is no legal clarity regarding the superior status of a claim found to be “first in time.” World history is filled with examples of terrestrial land claims being perfected by making the first claim to a piece of land and then productively using it. No analogous claims have ever been made in space. Therefore the status of an intentionally asserted superior right to conduct specific commercial asteroid resource utilization activities is a question of first impression.

The world’s most successful space-based commercial activity to date is satellite telecommunications. Telecommunications law had to address the issue of “first in time” claims as they applied to geosynchronous orbital slots early in its history. Some nation-states championed a slot allocation system based on “first-come, first-served.” Others advocated a slot allocation system based on principles of equity. Satellite telecommunications law is a complex and dynamic body of law the scope of which is beyond the invited testimony.  Suffice it to say that these two positions—“first come first served” and equity—continue to compete in a complicated and highly politicized international legal regime. The competition between the positions has included producing some practical results such as distinguishing between access and appropriation as well as creating different categories of orbital allotments and assignments. Attempts may be made to apply these kinds of distinctions to asteroids.

Telecommunications law, per se, is not a precedent for asteroid resource utilization rights. However, as both telecommunications satellite activities and asteroid resource utilization activities occur in space they both have to contend with some of the same international space law principles and international politics. It is to be expected that an assertion of a superior right to conduct commercial asteroid resource utilization activities will be challenged at law and in politics.

Conclusion

H.R. 5063 acknowledges and addresses some issues that arise from the unprecedented activity of private sector asteroid resource utilization. It also acknowledges and addresses some of the United States’ existing international obligations regarding activities in space. Not all relevant issues are provided in the bill, and given the ambiguities existing in space law, it is unlikely that it is possible to do so. If made into law, it should be expected that there would be both legal and political challenges to its terms. International space law contains many gaps and ambiguities. It is logical and appropriate to attempt to resolve those ambiguities in favor of the U.S. national interest. At the same time, the final results must be consistent with international law and the obligations of the United States.  

I thank the committee for giving me this opportunity and thank you for your work to develop the law of space.



* Joanne Irene Gabrynowicz is Director Emerita of the National Center for Remote Sensing; Air and Space Law and Research Professor Emerita of Law at the University of Mississippi Law School; Editor-in-Chief Emerita of the Journal of Space Law; Visiting Professor at the Beijing Institute of Technology School of Law; and a founding faculty member of the Space Studies Department at the University of North Dakota.

[1] Letter from Rep. Steven Palazzo, Chair, Space Subcommittee of the U.S. House of Representatives Committee on Science, Space, and Technology, to Joanne Irene Gabrynowicz, Prof. Emerita (Aug. 22, 2014) (on file with author).

[2] ASTEROIDS Act, H.R. 5063, 113th Cong. § 51301 (2014) (“The President, through the Administration, the Federal Aviation Administration, and other appropriate Federal agencies . . . .”).

[3] Memorandum of Understanding Between the Federal Aviation Administration (FAA) and the National Aeronautics and Space Administration (NASA) for Achievement of Mutual Goals in Human Space Transportation (June 4, 2012) available at https://www.faa.gov/about/office_org/headquarters_offices/ast/media/NASA-FAA_MOU-signed.pdf.

[4]  See 51 U.S.C. § 50112 (2006).

[5] Licensing of Private Land Remote-Sensing Space Systems, 15 C.F.R. § 960.1 (2006).

[6] Palazzo, supra note 1, at 1.

[7] 51 U.S.C  § 50901 (2006).

[8]  See 51 U.S.C. § 50902(9) (2006) (“‘[O]btrusive space advertising’ means advertising in outer space that is capable of being recognized by a human being on the surface of the Earth without the aid of a telescope or other technological advice.”); 51 U.S.C. § 50911 (2006).

[9] Nemitz v. N.A.S.A., 126 F. App’x 343 (9th Cir. 2005).

[10]  Robert Kelly, Note, Nemitz v. United States, A Case of First Impression: Appropriation, Private Property Rights and Space Law Before the Federal Courts of the United States, 30 J. Space L. 297, 298 (2004).

[11]  See id. at 309.

[12] Palazzo, supra note 1, at 1.

[13] Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies, art. III, opened for signature Jan. 27, 1967, 18 U.S.T. 2410, 610 U.N.T.S. 205  [hereinafter Outer Space Treaty].

[14]  Id. at art. VI.

[15] Timothy Robert Hughes & Esta Rosenberg, Space Travel Law (and Politics): The Evolution of the Commercial Space Launch Amendments Act of 2004, 31 J. Space L.1, 49-50 (2005).

[16] NASA, Process for Limiting Orbital Debris, NASA-STD-8719.14 (with Change 4), NASA, Washington, D.C. (2009), available at http:// www.hq.nasa.gov/office/codeq/doctree/871914.pdf.

[17]  In the Matter of Mitigation of Orbital Debris, Second Report and Order, 19 FCC Rcd, 1157, ¶¶ 84-85 (2004), available at http://hraunfoss.fcc.gov/

edocs_public/attachmatch/FCC-04-130A1.pdf.

[18]  See Commercial Remote Sensing Regulatory Affairs, NOAA,   http://www.nesdis.noaa.gov/CRSRA/licenseHome.html (last modified Oct. 22, 2014).

[19] Memorandum from the NAC Planetary Protection Subcommittee to Jack Burns, Chair of the Science Committee (Nov. 6-8, 2008), available at http://science.nasa.gov/media/medialibrary/2010/03/31/NASArecommendationNov08_.pdf.

[20]  See Joanne Irene Gabrynowicz, One Half Century and Counting: the Evolution of U.S. National Law and Three Long-Term Emerging Issues, 4 Harv. L. & Pol’y Rev.  405, 423-25 (2010).

[21] Palazzo, supra note 1, at 1.

[22]  See Leo Malagar, International Law of Outer Space and the Protection of Intellectual Property Rights, 17 B.U. Int’l L.J. 311, 341 (1999).

[23] Outer Space Treaty, supra note 13, at art. II.

[24] Convention on International Liability for Damage Caused by Space Objects, opened for signature Mar. 29 1972, 24 U.S.T. 2389, 961 U.N.T.S. 187.

[25] Outer Space Treaty, supra note 13, at art. VI.

[26] Outer Space Treaty, supra note 13, at art. II; Agreement Governing the Activities of States on the Moon and Other Celestial Bodies, art. 11(2), opened for signature Dec. 18, 1979, 1363 U.N.T.S. 21 (hereinafter Moon Agreement).

[27] The United States has not ratified the Moon Agreement. Therefore the United States is not legally bound by it. However, to effectively address the lack of legal clarity regarding space-based resources the Moon Agreement must be included in a discussion of the full corpus of international space law. Further, it must be noted that the United States was a leading participant in the development of the Moon Agreement and its adoption by the U.N. General Assembly.

[28] Moon Agreement, supra note 26, at art. 11(5).

[29]  Id. at art. 8.2(b).

[30] Outer Space Treaty, supra note 13, at art. I, III, and IX; Moon Agreement, supra note 26, at art. 2-6, 8-11, and 15.

[31] Outer Space Treaty, supra note 13, at art. I; Moon Agreement, supra note 26, at art. 4.

[32] A comparative analysis of the law applicable to terrestrial and space resource extraction is beyond the scope of this testimony. It is necessary to note however that agreements regarding extraction of resources from other global commons’ have been reached.

[33] United Nations Convention on the Law of the Sea art. 1, Dec. 10, 1982, 1833 U.N.T.S. 397.

[34] See U.S. Dep’t of State, Handbook of the Antarctic Treaty System (2002) available at  http://www.state.gov/e/oes/rls/rpts/ant/.

[35]  Compare Alan Wasser & Douglas Jobe, Space Settlements, Property Rights, and International Law: Could a Lunar Settlement Claim the Lunar Real Estate it Needs to Survive?, 73 J. Air L. & Commerce 72 (2008), with Press Release, International Institute of Space Law, Statement of the Board of Directors of the International Institute of Space Law (IISL) (Mar. 22, 2009), available at http://www.iislweb.org/html/20090322_news.html.

[36]  See Frans von der Dunk, The Moon Agreement and the Prospect of Commercial Exploitation of Lunar Resources, 32 Annals Air & Space L.  91, 93 (2007).

[37]  See NASA Authorization Act, Pub. L. No. 106-391 §§ 303, 309, 114 Stat 1577, 1593 (2000); Human Space Flight Assurance and Enhancement Capability Act, H.R. 4804, 111th Cong. § 8 (2010).