by Connor Haffey – May 2024

The Outer Space Treaty (OST), a keystone legal body of international space law, cemented
fundamental obligations for its State Parties. Article VI of the OST requires
“authorization and continuing supervision” of any national space activities, including those
carried out by a nongovernmental entity. This requirement has been heavily deliberated over the
years, with each State Party taking their own approach to its implementation. For example, the
UK and Japan, among other State Parties, have an authorizing national space law that dictates a
single agency or ministry to authorize and oversee commercial space activities. The US, on the
other hand, has a patchwork of laws and designated regulators making up its commercial space
mission authorization framework.

This patchwork approach was likely due to the US only regulating what was feasible in the
respective Congress’s horizon. In the late 1960s it was satellite communications which operated
via radio frequencies thus the Federal Communications Commission (FCC) became the
regulator; in the 1980s it was launch and reentry of commercial space vehicles which was given
to the Federal Aviation Administration (FAA); and in the early 1990s commercial remote sensing
regulations became a national security concern and the Department of Commerce (DOC) was
designated as the authorizing agency, which delegated the task to the National Oceanic and
Atmospheric Administration (NOAA).

Patchwork approaches to growing projects inevitably have gaps that protrude and must also be
covered. By 2015, there was discussion that certain foreseeable, but not yet developed, space
activities might have some aspects that fall outside the purview of the current US authorization
framework. The US’s SPACE Act of 2015 was most talked about at that time because it allowed
a US citizen or entity to “recover” and own resources from outer space, but Section 108 of this
Act also required an assessment from the White House on proposed commercial space activities
and recommendations for an authorization and supervision approach to these activities. Known
as the Section 108 Report, this assessment recognized the current adequacy of the US’s
authorization framework, but shone a light on the regulatory gap for future missions that may
implicate Article VI concerns, igniting a debate over how to address the gap.

As all great debates, this one is centered around practical questions. What is adequate
authorization and continuing supervision? How much actual regulation is necessary to fulfill the
US’s requirements under Article VI? What happens if the US does not authorize novel nascent
missions? Which agency (or agencies) is best suited to undertake novel space mission
authorization? These are all examples of the questions needed to be answered.
The Section 108 Report identified potential missions that might fall outside the current
framework and proposed its own draft bill to fill the gap, designating the FAA as the lead agency
for commercial space mission authorization. Shortly thereafter in 2016, Senator Bridenstine
(prior to his NASA Administrator position), introduced the American Renaissance in Space Act
(ASRA), which also designated the FAA as the lead agency, but granted a more comprehensive
remit for the FAA to issue regulations relating to specifics of authorizing novel space missions.

Others in Congress were not as keen to fill this gap at the time, citing worries of stifling
innovation in the nascent technologies. One such member was Representative Babin, who
initiated hearings to gather testimony from industry experts regarding the regulatory gap.
Whether it was the hearings, or general disfavor from industry stakeholders, both the Section 108
Report proposal and the ASRA stalled.

Now, nearing a decade since the last proposals, two new draft bills have been proposed. Again,
one from a White House report and one from a Congressional space subcommittee leader. It
appears the time of inaction has passed, as one of the bills’ authors is none other than
Representative Babin, who lauded restraint from regulation back in 2017. What has changed in
the industry over the past decade that is incentivizing those formerly opposed to regulation to
now introduce laws leading to regulation? And do these new proposals take into account the true
needs of the industry in the long-term? These questions will be discussed in Part II of this Blog

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