Moon Express Reveals Need for Space Law
TechFreedom
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Although we appreciate the adulation and being called “poster child for free enterprise in space”, for the record, we have never had a dialog with Tech Freedom about our ‘Mission Approval’ framework proposed to the U.S. government via the Federal Aviation Administration (FAA). Although this independent article about us, also issued as a press release ‘media statement’, illuminates some important points underpinning regulatory challenges for Moon Express and all commercial missions wanting to travel beyond near Earth orbit, Tech Freedom does not appear to have understood that the ‘payload review’ we have requested is in the context of an enhanced framework we call ‘Mission Approval’, designed to accomplish the needed compliance with the Outer Space Treaty (OST) as a temporary measure in the short term, without the need for new laws for our 2017 lunar mission.

The Tech Freedom media statement also contains some errors and draws some conclusions we do not necessarily agree with… so with constructive intent for clarity, we offer the following:

CORRECTIONS:

1) “Moon Express…has asked the FAA to review its payload, a 20-lb robotic rover.”
- We are not carrying a rover on our maiden lander mission
- Our FAA ‘payload review’ submission is for our MX-1E spacecraft and related mission parameters. The cargo we carry is a component of the review; not the subject of it.

2) “the FAA is now trying to ‘leverage’ that limited authority to cover activity on the Moon through the payload review process”
- No, we are. Moon Express independently initiated our ‘Mission Approval’ framework, socialized widely within many government agencies, proposing to leverage the existing FAA payload review process with enhance additional voluntary disclosures intended to cover treaty related aspects of our mission within the interagency review process that is not normally addressed. The FAA, White House, State, NASA and other federal agencies have all been very supportive of our initiative, are working very hard to answer it, and we remain hopeful of a positive determination.

3) “the 2015 mining law won’t help Lunar Express ultimately mine the Moon because it only covers asteroids”
- Our company name is “Moon Express” (although Lunar Express is pretty good too…)
- The Space Resource Exploration and Utilization Act of 2015 covers all space resources, including lunar resources, not just asteroids.

From the Space Resource Exploration and Utilization Act of 2015:

“‘A United States citizen engaged in commercial recovery of
an asteroid resource or a space resource under this chapter shall
be entitled to any asteroid resource or space resource obtained,
including to possess, own, transport, use, and sell the asteroid
resource or space resource obtained in accordance with applicable
law, including the international obligations of the United States.’’

“‘(2) SPACE RESOURCE. — 
‘(A) IN GENERAL. — The term ‘space resource’ means
an abiotic resource in situ in outer space.
‘(B) INCLUSIONS. — The term ‘space resource’ includes
water and minerals.”

INTERPRETATIONS WE DISAGREE WITH:

1) “Even if the FAA can get the State Department to sign off on those letters today, they won’t be binding in the future, and it’s not clear they’ll be adequate if challenged internationally.”
- This is true, but moot for us. The issue here is not what will be eventually instituted as a permanent solution to the regulatory gap, but what works for Moon Express, now, in its need for certainty about a process for licensing our 2017 lunar mission. Our ‘Mission Approval’ scenario, or whatever variation may ultimately be approved for our 2017 mission, is a pathfinder and may become a good test case, and maybe even a template for future applications, but we are not asking this to be the case.

2) “If so, this would be essentially similar to a payload review determination letter issued to Bigelow Aerospace in December 2014”
- We view the payload review applications as very complementary but different. Bigelow Aerospace used a FAA payload review to elicit a government determination of whether “non-interference” provisions of the Outer Space Treaty would apply. The Moon Express ‘payload review’ is for an actual spacecraft and mission proposal seeking an advance determination of USG approval under compliance with the Outer Space Treaty.

3) “it’s not clear this payload review letter is what they’ll really need,”
- Yes it is, otherwise we wouldn’t have initiated it.
- Our ‘payload review’ is in the context of our ‘Mission Approval’ framework, which is a proposed patch to the gap in regulatory authority satisfying Article VI “continuing supervision” and other obligations the U.S. has under the Outer Space Treaty. We have stated that we are not proposing any long term permanent solutions or attempting to displace any of the work underway by Congress and the Executive Branch to find one.

4) “What Moon Express and other space pioneers really need is an update to U.S. space law,”
- Well yes, but that is already underway as per the provisions of the Space Resource Exploration and Utilization Act of 2015, signed into law last November and requiring:

(From the Space Resource Exploration and Utilization Act of 2015:)

‘‘(b) REPORT. — Not later than 180 days after the date of enactment
of this section, the President shall submit to Congress a
report on commercial exploration for and commercial recovery of
space resources by United States citizens that specifies — 
‘‘(1) the authorities necessary to meet the international
obligations of the United States, including authorization and
continuing supervision by the Federal Government; and
‘‘(2) recommendations for the allocation of responsibilities
among Federal agencies for the activities described in paragraph (1).”

5) “Congress passed, and the President signed, a major update just last year but they completely missed this fundamental issue”
- The REPORT required by the Space Resource Exploration and Utilization Act of 2015 was drafted by the Executive Branch and submitted to Congress as required, and is undergoing iteration and conferencing. We fail to see what Tech Freedom is taking issue with when the process of updating U.S. space law is already underway under H.R. 2262 Title IV or how this Act “completely missed this fundamental issue” when it in fact addresses it.

6) “Failing to ask for new legislation means failing to lead.”
- They did ask for new legislation supporting commercial space companies, it’s in process, and the U.S. is the world leader here.

7) “Congress needs to finish what it started last year,”
- Yes, we agree, but it’s underway (See 4–6), but in our view there are unlikely to be any vehicles for the enactment of any new space law legislation this year (thus our interim ‘Mission Approval’ proposal).

8) ‘SPACE PROPERTY RIGHTS”
- ‘Space property rights’ is an incendiary phrase that is widely interpreted by the international community to mean “territory”. The claiming or appropriation of territory in space is clearly forbidden by the Outer Space Treaty (Article II), although the right of use for peaceful purposes is clearly recognized (Article I). The right of private sector ownership of “extracted resources” is widely viewed by professional space law institutions to not be in violation of the OST. The U.S. is the first country to formally acknowledge and protect under law private sector rights to space resources peacefully obtained, and other countries like Luxembourg and the UAE are following the U.S. lead. There is a strong and sensible movement worldwide to support commercial space activities, including resource extraction. However, we strongly suggest/urge that the usage of “space property rights” by U.S. advocates without proper definition be avoided due to its incendiary nature and tendency to be misinterpreted in the international community.

- MOON EXPRESS

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