Legislative history. Next, when Congress granted the FAA authority to authorize and supervise the reentry of a reentry vehicle, it emphasized that the FAA was not to exercise its authority on orbit, further clarifying that Congress envisioned unregulated activities for which the FAA should not deny access to space. Unlike some other countries, the United States has not passed a law saying that anything anyone does anywhere in outer space requires federal oversight. Instead, Congress has taken a measured, incremental approach. So far, it has determined that launch, reentry, remote sensing, and satellite transmissions require authorization and supervision.

The FAA Does not Get to Name Itself the Regulator. Were the FAA to deny an operator access to space on the grounds of Article VI, it would be taking on the role of regulator—but deciding who that regulator should be is a decision that Congress makes. Indeed, indications so far suggest that Congress may have a different agency fill that role. Last year’s House bill named the Department of Commerce. Were the FAA to deny private actors access to space, it would be saying it was the space regulator.

The FAA Does not Get to Decide What Activities Require Federal Oversight. Most importantly, Congress may have different views than the FAA about what activities require regulation. This means the FAA and the rest of the executive branch must wait for Congress’s determination to learn what those activities are. As a matter of policy, Congress may determine that there are good reasons to expend government resources and taxpayer dollars on regulating a particular activity. Congress could say that bringing platinum-group minerals back to Earth will wreak havoc on the economy, and decide to set up an agency to oversee pricing. Or, it could decide that robotic mining of rocks in space really far away does not require regulation because no one lives on those rocks, they have no visitors, and no one will get hurt by the mining. Even if Congress ignores asteroid mining itself, it might forbid the reentry of anything large enough to make a crater the size of the Yucatan. There are a number of considerations that may lead to legislation and regulatory oversight. But they are not in Article VI of the Outer Space Treaty.

Just as there are serious activities that arguably require oversight, there are a host of other activities that don’t. SpaceX and Orbital ATK engage in orbital transportation without orbital transport licenses. One hears no lamentations over the lack of authorization of space tourists. Yet space tourists exist now. Lunar habitats and space mining do not; but when the time comes, only those activities identified by Congress require authorization.