President Signs Law Protecting Lunar Heritage Sites

President Signs Law Protecting Lunar Heritage Sites

Last night as many were celebrating New Year’s Eve, President Trump was busy signing legislation into law including a bill to protect heritage sites on the Moon like the Apollo 11 landing site. As enacted, the bill applies only to NASA’s partnership agreements with companies to conduct lunar activities, not to companies licensed to conduct lunar activities, the focus of the original version.

As passed by the Senate in July 2019, the bill would have required agencies issuing licenses to conduct lunar activities to require applicants to agree to abide by recommendations in the 2011 report “NASA’s Recommendations to Space-Faring Entities: How to Protect and Preserve the Historic and Scientific Value of U.S. Government Lunar Artifacts” and any successor reports.

The bill, One Small Step to Protect Human Heritage in Space Act (S. 1694), suddenly appeared on the House’s suspension calendar two weeks ago and passed by voice vote on December 16.

A joint press release from the leadership of the House Science, Space, and Technology (SS&T) Committee and the bill’s Senate sponsors, Senators Gary Peters (D-MI) and Ted Cruz (R-TX), that day heralded passage of the bill and noted it now honors the contributions of the 400,000 people who made the Apollo landings possible, including African-American “Hidden Figures,” but not that the text of the bill had changed substantially.

Instead of applying to agencies that license lunar activities, which does not include NASA since it is not a regulatory agency, it applies only to NASA.  The agency is required to add the 2011 recommendations “as a condition or requirement to contracts, grants, agreements and partnerships or other arrangements pertaining to lunar activities carried out by, for, or in partnership” with NASA.  It also must inform other relevant agencies of the recommendations and encourage “the use of best practices, consistent with the recommendations” by those agencies.

During floor consideration on December 16, Rep. Kendra Horn (D-OK), Chairwoman of the House SS&T’s space subcommittee, said the bill now “recognizes NASA’s central role in working with partners on lunar activities and ensures they follow best practices regarding U.S. lunar landing site artifacts. This approach strikes an important balance in preserving lunar heritage sites, while not imposing regulatory framework.” Rep. Brian Babin (R-TX), Ranking Member of the space subcommittee and sponsor of a companion bill (H.R. 3766), said the bill “correctly balances these two competing interests: respecting the past and enabling the future.”

The bill does not create any additional regulatory authority. Instead, the bill offers a carrot rather than a stick. If the private sector wants to leverage the vast experience and resources that NASA offers, they simply must abide by NASA’s own internal policies.

NASA is not a regulatory agency, and this bill does not grant any other agency any new power or mechanism to influence commercial space activities. This will allow our Nation’s emerging and vibrant commercial space sector to continue to innovate, while also respecting the rich archaeological, anthropological, historical, scientific, and engineering accomplishments of the Apollo program. — Rep. Brian Babin

Because the text changed, the bill had to go back to the Senate again.  It passed by voice vote without debate on December 19.  Trump signed it into law last night (December 31, 2020).

Many companies are developing plans for lunar activities, but initially most are in partnership with NASA through the Commercial Lunar Payload Services (CLPS) robotic program of lunar landers, or the Artemis human landing program.

In fact, no U.S. agency currently has clear-cut authority to license activities on the Moon or, indeed, anywhere in space. The only formalized licensing regimes are for launch and reentry (FAA), commercial remote sensing satellites (NOAA), and spectrum (FCC). Companies including Moon Express  (for a lunar lander mission that has not taken place) and SpaceLogistics (for the MEV-1 satellite servicing mission) have obtained authorization through ad hoc processes, but the question of what agency should be in charge of licensing in-space activities is unresolved. The Obama-Biden Administration wanted “mission authorization” for non-traditional space activities added to the FAA’s jurisdiction, but the Trump-Pence Administration prefers the Department of Commerce as a “one-stop shop” for commercial space regulation.  Congress has not passed legislation to settle the matter.

S. 1694 stems from earlier congressional interest in protecting the Apollo sites. The NASA Transition Authorization Act of 2017 required the White House Office of Science and Technology Policy (OSTP) to assess the issues and report back within a year.  OSTP’s March 2018 report essentially recommended the U.S. government work with commercial entities and foreign governments and space agencies to develop best practices.

Earlier this year, NASA included protecting lunar heritage sites in the Artemis Accords it is negotiating with countries that want to be partners in the Artemis program. Seven countries joined the United States in signing the Accords on October 13 (Australia, Canada, Japan, Italy, Luxembourg, the United Kingdom, and the United Arab Emirates) and Ukraine joned on November 12.  In addition, protecting the sites from a biological standpoint is included in a July 9, 2020 NASA Interim Directive (NID) on planetary protection for the Moon.

For All Moonkind, a U.S. non-profit headed by Michelle Hanlon, Associate Director of the National Center for Air and Space Law at the University of Mississippi, has been advocating for protecting lunar heritage sites domestically and internationally.  They tweeted today that the new law is itself just a first step.

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