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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 

( 

Available via the World Wide Web: http://science.house.gov 
(II) 

COMMITTEE ON SCIENCE, SPACE, AND TECHNOLOGY 

HON. LAMAR S. SMITH, Texas, Chair 

FRANK D. LUCAS, Oklahoma 

DANA ROHRABACHER, California 

MO BROOKS, Alabama 

RANDY HULTGREN, Illinois 

BILL POSEY, Florida 

THOMAS MASSIE, Kentucky 

JIM BRIDENSTINE, Oklahoma 

RANDY K. WEBER, Texas 

STEPHEN KNIGHT, California 

BRIAN BABIN, Texas 

BARBARA COMSTOCK, Virginia 

GARY PALMER, Alabama 

BARRY LOUDERMILK, Georgia 

RALPH LEE ABRAHAM, Louisiana 

DRAIN LAHOOD, Illinois 

DANIEL WEBSTER, Florida 

JIM BANKS, Indiana 

ANDY BIGGS, Arizona 

ROGER W. MARSHALL, Kansas 

NEAL P. DUNN, Florida 

CLAY HIGGINS, Louisiana 

EDDIE BERNICE JOHNSON, Texas 

ZOE LOFGREN, California 

DANIEL LIPINSKI, Illinois 

SUZANNE BONAMICI, Oregon 

ALAN GRAYSON, Florida 

AMI BERA, California 

ELIZABETH H. ESTY, Connecticut 

MARC A. VEASEY, Texas 

DONALD S. BEYER, JR., Virginia 

JACKY ROSEN, Nevada 

JERRY MCNERNEY, California 

ED PERLMUTTER, Colorado 

PAUL TONKO, New York 

BILL FOSTER, Illinois 

MARK TAKANO, California 

COLLEEN HANABUSA, Hawaii 

CHARLIE CRIST, Florida 

SUBCOMMITTEE ON SPACE

HON. BRIAN BABIN, Texas, Chair 

DANA ROHRABACHER, California 

FRANK D. LUCAS, Oklahoma 

MO BROOKS, Alabama 

BILL POSEY, Florida 

JIM BRIDENSTINE, Oklahoma 

STEPHEN KNIGHT, California 

BARBARA COMSTOCK, Virginia 

RALPH LEE ABRAHAM, Louisiana 

DANIEL WEBSTER, Florida 

JIM BANKS, Indiana 

ANDY BIGGS, Arizona 

NEAL P. DUNN, Florida 

CLAY HIGGINS, Louisiana 

LAMAR S. SMITH, Texas 

AMI BERA, California, Ranking Member 

ZOE LOFGREN, California 

DONALD S. BEYER, JR., Virginia 

MARC A. VEASEY, Texas 

DANIEL LIPINSKI, Illinois 

ED PERLMUTTER, Colorado 

CHARLIE CRIST, Florida 

BILL FOSTER, Illinois 

EDDIE BERNICE JOHNSON, Texas 
(III) 

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 NebraskaLincoln, 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 
Page

IV 

Mr. Doug Loverro, Former Deputy Assistant Secretary of Defense for Space 

Policy ..................................................................................................................... 110

Mr. Dennis J. Burnett, Adjunct Professor of Law, University of NebraskaLincoln, 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 
(1) 

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. 
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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 nontraditional 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 
5 

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 
9 

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:] 
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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:] 
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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:] 
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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. 
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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. 
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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:] 
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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 Avail-
38 

ability, 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:] 
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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. 
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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:] 
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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. 
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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:] 
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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 quasigovernmental 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 
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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:] 
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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 nontransparency 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 in-
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vestment 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. 
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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? 
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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 mindexpanding, 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 
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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 be-
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tween 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 
93 

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 nontraditional 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 ac-
94 

tors, 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 governmentowned 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 lowEarth 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? 
95 

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. 
96 

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. 
97 

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. 
98 

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 
99 

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. 
100 

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 
101 

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? 
102 

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 
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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.] 

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Appendix I 

ANSWERS TO POST-HEARING QUESTIONS
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ANSWERS TO POST-HEARING QUESTIONS

Responses by Ms. Laura Montgomery 
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Responses by Dr. Eli Dourado 
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Responses by Mr. Doug Loverro 
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Responses by Mr. Dennis J. Burnett 
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Responses by Dr. Henry B. Hogue 
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Appendix II 

ADDITIONAL MATERIAL FOR THE RECORD
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