Representatives Brian Babin and Frank Lucas introduced the Commercial Space Act of 2023, H.R. 6131, on November 2. The Committee will mark up the bill on Wednesday, November 15, at 10 a.m. Eastern.
The advent of novel space operations such as space mining and commercial space habitats led to this legislative proposal. H.R. 6131 would establish a federal certification process for the operation of space objects, requiring an operator to obtain authorization from the Department of Commerce’s Office of Space Commerce. Someone operating a space tug, a company attempting to mine asteroids, or a consortium drilling for water ice on the moon, would require certification under this bill The press release describes this new approval process as intended to reduce an administrative burden and ensure compliance with treaty obligations. I have a couple thoughts.
New regulatory approvals required. First, to minimize a possible source of confusion: despite the press release’s claim of reducing an administrative burden, the bill would create a new regulatory structure and approval process. The operator of a space object would have to apply for and receive a new federal authorization to conduct its activities. Rather, the bill’s administrative-burden-reducing provisions are aimed at existing federal regulators, even as it would create a new regulatory apparatus. For example, the bill would extend the “learning period”–under which the FAA may not issue regulations for the safety of occupants of a launch or reentry vehicle–until October 1, 2031.
Ambiguities surrounding treaty provisions. Second, although the bill treats the treaty obligations in a mercifully limited fashion, it could perhaps stand some clarification as to how those limitations would work. As drafted, it would assign the Secretary of Commerce the task of ensuring compliance with the outer space treaties while somewhat–although not entirely clearly–limiting that new task. The bill would charge the Secretary with addressing possible violations of the Outer Space Treaty while at the same time noting that no agency, which would presumably include the Department of Commerce, could prevent the launch or operation of a space object in order to comply with a treaty obligation that is not self-executing. How do we reconcile the tensions between these when so many OST provisions are not self-executing with respect to the non-governmental entities?
As background, Article VI of the Outer Space Treaty of 1967 (OST), requires that for countries who have signed the treaty:
The activities of non-governmental entities in outer space, including the moon and other celestial bodies, shall require authorization and continuing supervision by the appropriate State Party to the Treaty.
The bill attempts to respond to this provision. In other words, if a U.S. company were mining an asteroid, the Secretary of Commerce’s certification and oversight would address Article VI.
The bill offers industry some protections from the treaty obligations. For example, as part of Sec. 2 (b), the bill states that it is the policy of the United States that:
(2) to the maximum extent practicable, the Federal Government shall interpret and fulfill United States international obligations in a manner that minimizes regulations and limitations on the freedom of United States nongovernmental entities to explore and use outer space;
This particular provision could prove useful in slowing the historic tendencies of government agencies to expand their regulatory reach over time.
Nonetheless, under the bill, if the Secretary were to determine that a certificated space operator was violating the Outer Space Treaty, the bill would have the Secretary impose conditions on an applicant’s certification or deny the application.
Given that the OST seldom addresses non-governmental activities, there might be little for the Secretary to enforce. The vast majority of the Outer Space Treaty’s requirements apply to nation states rather than to non-governmental entities. The bill itself reflects this reality when it tells the Secretary of Commerce not to automatically assume that if a treaty requirement applies to the U.S. government it must also apply to its private citizens. H.R. 6131 states:
The Federal Government may not presume all obligations of the United States under the Outer Space Treaty are obligations to be imputed upon United States nongovernmental entities.
Rebuttable presumptions. The quoted language gets us halfway to the goal of avoiding the Secretary’s misinterpretation of the OST. Unfortunately, it contains two loopholes. First, it is part of the nature of a presumption that it may be rebutted. Accordingly, the bill would allow the Secretary to impute such obligations so long as he or she provided a sound rationale. Second, it would allow the Secretary to impute some obligations so long as he or she did not impute all.
A brief example may illustrate the point. Article II of the Outer Space Treaty states that “outer space is not subject to national appropriation.” Some construe this to prohibit not just national appropriation of outer space but private appropriation as well. As drafted, the bill would prevent the federal government from presuming Article II prohibits private appropriation of outer space. However, presumptions may be rebutted, and the Secretary of Commerce might look to Article VI, which also says that “States Parties to the Treaty shall bear international responsibility … for assuring that national activities are carried out in conformity with the provisions set forth in the present Treaty.” Under a loose reading of this part of Article VI, the Secretary might construe Article II to determine that, indeed, the prohibition on national appropriation applies to the private sector, too. (The Secretary’s determination would be wrong, but is conceivable for purposes of illustrating the hazard the bill’s phrasing causes.)
To truly carry out the intent underlying this provision, it should perhaps say instead:
No agency of the Executive Branch may impute an obligation of the United States under any covered space treaty, including the Outer Space Treaty, upon any United States nongovernmental entity.
This would prevent the Secretary from rebutting any presumption and apply to the other space treaties, too. Also, it would show how Congress itself interprets the Outer Space Treaty. Congress gets to do that.
If the Secretary disagreed, he or she would have recourse. Should the Secretary believe that an obligation of the United States under the Outer Space Treaty should be imputed to a nongovernmental entity, the Secretary could propose a legislative change to the U.S. Congress.
The version I propose would comply with Article VI’s principle that the United States “shall bear international responsibility… for assuring that national activities are carried out in conformity with the provisions set forth in the present Treaty.” National activities are governmental, not private. When the treaty drafters wanted something to apply to non-governmental actors, it referred to them as “non-governmental,” not as “national.”
Prohibition on enforcement of treaty provisions that aren’t self-executing. Lastly, the bill’s proposed 51 USC 50924 would prevent an agency of the Executive Branch from stopping a launch or the operation of a space object to enforce a non-self-executing treaty provision:
No agency may prohibit the launch or operation of a private sector space object in order to comply with a treaty obligation that is not self-executing.
A treaty provision is self-executing when it can go into effect as soon as the treaty does. For example, the Executive branch has the authority to stop fighting a war when a peace treaty goes into effect. It need not wait for Congress to pass a law. However, when a treaty imposes an obligation on the United States that must be carried out by another branch of government, the Executive branch must wait before it may carry out that treaty provision. In Medellin v Texas, the Supreme Court emphasized that the responsibility for turning a non-self-executing treaty’s obligations into domestic law falls to Congress. Accordingly, if Congress does not, for example, legislate that the OST’s Article IX’s harmful contamination provisions apply to the private sector, then neither the FAA, the FCC, nor Commerce using its new authority, could enforce those provisions against the private sector.
What I confess I find confusing about this is that the Secretary of Commerce might have grounds to argue that Congress has passed such a law. This bill would, after all, assign the Secretary responsibility for assessing violations of the Outer Space Treaty. Do the provisions contradict each other? Or is one an exception to the other? It would be useful to see an example of how this would play out with a particular treaty provision. It would also help if such an example reflected Ambassador Goldberg’s testimony during the OST’s Senate ratification hearings that only some provisions are self-executing. Another question is why the bill doesn’t simply identify which provisions the Secretary will be monitoring for compliance. As noted earlier, most of the provisions apply to nation states, not non-governmental entities. Perhaps the markup will shed some light on these questions.
Laura. As always, thoughtful. I don’t completely agree, but two attorneys rarely do. Thank you.
Thank you, Robin.
Interesting insights. I thought you’d hone in on the broadness of the scope provided in the draft bill.