Yesterday, the Senate Committee on Commerce, Science and Transportation voted unanimously in favor of a bill to protect lunar heritage sites. As noted in the press release from Senator Cruz’ office, “the One Small Step to Protect Human Heritage in Space Act would provide legal recognition and protection for the Apollo sites and artifacts from intentional and unintentional disturbances from future missions.”
Specifically, the bill states that “any Federal agency that issues a license to conduct a lunar activity shall require each applicant for such a license–to agree to abide by ‘NASA’s Recommendations to Space-Faring Entities: How to Protect and Preserve the Historic and Scientific Value of U.S. Government Lunar Artifacts'” (2011) and to abide by any successor heritage preservation recommendations, guidelines, or principles NASA may issue.
For Congress to rely on guidelines NASA hasn’t even written yet delegates a whole lot of Congress’ lawmaking power to NASA, which is not even a regulatory agency. The first part does, too, of course, but we may assume that Congress has read the 2011 NASA guidelines, knows what’s in them, and agrees.
Also interesting is the question of what regulatory agencies this requirement to implement an agreement applies to. The bill would define “lunar activity” to mean “an action or endeavor in space that is intended to be lunar in nature, including lunar orbit, landing, and impact; or has a greater likelihood than not of becoming lunar in nature, including unintentional orbit and impact.” Currently, no regulatory agency licenses lunar activity. The FAA licenses launch and reentry to and from space. The FCC licenses satellite transmissions to and from the United States. NOAA licenses the remote sensing of Earth (and maybe eventually the Moon.) No one issues lunar landing or orbit licenses.
As drafted, this looks like it could arguably apply to the FCC and NOAA, since most persons engaging in lunar activity as defined here will need a license from at least one of these agencies. Any private American lunar lander will want to be able to phone home, and will need an FCC license to do so. So, although not technically granting a license for one of the lunar activities described above, the FCC’s licensee would at least be engaged in a lunar activity. The same logic could apply to NOAA.
Why not the FAA? The FAA only licenses launch and reentry. It doesn’t even license activities in orbit around Earth, except to the extent they are part of launch or reentry. Under 51 USC 50902, launch means “ to place or try to place a launch vehicle or reentry vehicle and any payload or human being from Earth — (A) in a suborbital trajectory; (B) in Earth orbit in outer space; or (C) otherwise in outer space,….” The launch vehicle gets you off of planet Earth. A reentry vehicle gets you back. See 51 USC 50902(16). Typically, a launch vehicle’s payload is what reaches the Moon, and the FAA doesn’t license that.