Space Law News
The Senate and House both passed a FY2017 Continuing Resolution (CR) today that will keep the government operating through December 9, 2016. Without it, government agencies would have had to shut down at midnight Friday, September 30, the end of fiscal year 2016. The President is expected to sign the bill.
Government departments and agencies like NASA, NOAA and DOD are funded through a set of 12 appropriations bills that provide money one fiscal year at a time. A U.S. fiscal year is October 1 - September 30. If the bills are not passed by Congress and signed into law by the President, their operations must cease other than exceptions for life and safety, for example.
When the 12 regular appropriations bills are not passed in time, Congress typically passes a CR that funds the departments and agencies at their previous year's levels for a set period. In this case, that is through December 9. By then, Congress must either pass another CR or, hopefully, the full year appropriations bills. This CR actually includes the full-year FY2017 Military Construction-Veterans Affairs (MilCon-VA) appropriations bill, leaving 11 of the 12 regular bills to be passed later.
The CR also includes funding to combat the Zika virus domestically and internationally, to respond to flooding in Louisiana and other states, and several other specialized needs.
Details of the legislation, H.R. 5325 as amended, are posted on the Senate Appropriations Committee's website. (Note that previous action on H.R. 5325 is not relevant. That bill, which began as the FY2017 Legislative Branch appropriations bill, simply is being used as the legislative vehicle for the CR. The original text was deleted and this new text was substituted.)
The bill's full title is "Continuing Appropriations and Military Construction, Veterans Affairs, and Related Agencies Appropriations Act, 2017, and Zika Response and Preparedness Act."
The President's FY2017 requested funding levels for NASA and NOAA are not so different from their current funding levels that a short-term CR like this one is not expected to make much difference on a day-to-day basis.
Here is our list of space policy events for the week of September 26-30, 2016 and any insight we can offer about them. The House and Senate are in session this week.
During the Week
It's quite a week coming up!
For the country: the first of the three presidential debates is tomorrow (Monday) and Congress hopefully will pass a Continuing Resolution (CR) to keep the government operating after Friday when fiscal year 2016 ends. The House and Senate are still working on the details of their separate versions of the CR, but they have five days left. Typically they leave appropriations deals to the last minute with the expectation that a hard deadline makes people more willing to compromise. The alternative is a government shutdown, which is not an appealing prospect in an election year. Word is the CR will keep the government open through December 9, by which time Congress must pass either another CR or, better yet, the actual FY2017 appropriations measures. Typically Congress combines all 12 regular appropriations bills into a single "omnibus" measure, but House Speaker Paul Ryan reportedly would prefer several smaller "minibuses" dealing with two or three of them at a time. The exception may be the Military Construction-Veterans Affairs bill, which the House wants to include in the CR this week. We'll see if the Senate is willing to go along with that.
For the space policy community: the International Astronautical Congress (IAC) will be held in Guadalajara, Mexico. IAC is the BIG international conference that combines annual meetings of the International Astronautical Federation (IAF), the International Academy of Astronautics (IAA), and the International Institute of Space Law (IISL). IAC will webcast all the plenary sessions. The one that has generated the most buzz is on Tuesday when Elon Musk will lay out his plans for making humanity a multiplanet species. It's at 1:30 pm local time in Guadalajara, which is on Central Daylight Time. So that's 2:30 pm Eastern.
Two congressional hearings of note are also scheduled for this week, both on Tuesday (most congressional hearings are webcast on the respective committee's website). In the morning, the House Science, Space, and Technology Committee's Space Subcommittee asks "Are We Losing the Space Race to China?" and four witnesses will give their answers: Dennis Shea, chairman of the U.S-China Economic and Security Review Commission; Mark Stokes from the Project 2049 Institute; Dean Cheng from the Heritage Foundation; and Jim Lewis from CSIS.
That afternoon, the House Armed Services Committee's Strategic Forces Subcommittee will hear from three eminent experts on the topic of "National Security Space: 21st Century Challenges, 20th Century Organization." The witnesses are John Hamre, former Deputy Secretary of Defense; Adm. James Ellis, Jr. (Ret.), former commander of U.S. Strategic Command; and Marty Faga, former Director of the National Reconnaissance Office (NRO) and former President and CEO of the MITRE Corporation. The great advantage of being "former," of course, is that one can speak freely. Should be especially interesting.
Those and other events we know about as of Sunday morning are listed below. Check back throughout the week for others that we learn about later and add to our Events of Interest list.
Monday, September 26
Monday-Friday, September 26-30
Tuesday, September 27
Tuesday-Wednesday, September 27-28
Wednesday-Friday, September 28-30
Thursday, September 29
Thursday-Friday, September 29-30
Correction: An earlier edition of this article listed the Beckman Center in Irvine, CA as the location of the National Academies Workshop Planning Committee meeting on September 27-28. It will be held in Washington, DC, not at Beckman. The workshop itself, scheduled for December 5-6, will be held at Beckman.
Here is our list of space policy events for the week of September 19-25, 2016 (through next Sunday) and any insight we can offer about them. The House and Senate are in session this week.
During the Week
On Friday, Resources for the Future (RFF) will hold a memorial service for Molly Macauley at the Metropolitan Club in Washington, D.C., from 3:30-5:30 pm ET. All of Molly's friends and colleagues are welcome to attend, but RFF would appreciate an RSVP so they know how many people to expect. Please RSVP to firstname.lastname@example.org. Molly, a renowned space economist and integral part of the space policy community for three decades, spent almost all of her career at RFF before her tragic death on July 8.
It will be a busy week before that.
The Senate plans to bring a Continuing Resolution (CR) to the floor tomorrow (Monday) for a cloture vote. If it gets 60 votes, the Senate can proceed to debate, and, hopefully, pass it. Word is that it will keep the government funded through December 9. The bill reportedly has controversial policy provisions ("poison pills") that could delay its approval, but rumors are that once it passes, the Senate will adjourn until after the elections instead of remaining in session through the end of the month. That would put the House in the position of either agreeing to the Senate bill or allowing the government to shut down on October 1, which would not play well in the upcoming elections. A budget deal was crafted last fall by then-House Speaker John Boehner, Senate Majority Leader Mitch McConnell, and President Obama that set the spending limit for FY2017. The draft CR reportedly sticks to that agreement, but very conservative House Republicans disapproved of the deal and are not happy at the prospect of passing a CR that adheres to it (because it spends too much on non-defense programs), so there is indeed a chance that a government shutdown could occur. We think it is only a very small chance in an election year, but as we've said many times, trying to predict what Congress will do is risky.
The Air Force Association is holding its Air, Space, Cyber conference at National Harbor, MD (outside Washington, DC) Monday-Wednesday. Secretary of the Air Force Deborah Lee James kicks it off tomorrow morning. There is no indication on the conference's website as to which sessions might be livestreamed, but James tweeted an invitation yesterday for everyone to listen to her talk, so presumably hers will be, at least. Hopefully AFA will make iivestreaming information available soon. [UPDATE: the link to watch James, from 10:20-11:15 am ET, is http://www.afa.org/airspacecyber/streaming. Two other sessions Monday afternoon also will be livestreamed as noted at that site. The list of livestreamed sessions for the rest of the conference are not posted yet.]
While that's underway, on Tuesday, the Senate Armed Services Committee will hold a nomination hearing for Gen. John Hyten to become Commander of U.S. Strategic Command. He currently is Commander of Air Force Space Command. He seems to be well liked and respected on the Hill, so apart from the usual Senate challenges on getting any nomination approved (usually for reasons completely unrelated to the nominee), it should go smoothly.
On the civil space side, it's Mars, Mars, Mars this week. Explore Mars holds a seminar on Capitol Hill on Tuesday morning on "Humans to Mars: Why, How, and When." On Wednesday afternoon, Lou Friedman, former executive director of the Planetary Society, will discuss his new book "Human Spaceflight From Mars to the Stars" at George Washington University's Space Policy Institute. From Thursday-Sunday, the Mars Society holds its annual conference at Catholic University in Washington, D.C.
The Senate Commerce Committee will markup its "NASA Transition Authorization Act" on Wednesday that, among other things, seeks to protect NASA's human spaceflight program -- which is aimed at sending humans to Mars in the 2030s -- from any major changes as the result of the upcoming presidential transition. Congress directed NASA to build a new, big rocket, the Space Launch System (SLS), and a crew spacecraft to go with it (Orion) in the last NASA authorization act that became law (in 2010). It has diligently ensured that the Obama Administration (through NASA) implements those programs, often providing more funding than the President requested. They want to make sure a new President doesn't disrupt that effort the way President Obama did when he came into office and cancelled President Bush's Constellation program. The NASA authorization bill is one of several bills the committee will markup that day, including the STEM education-related INSPIRE Women bill that the House passed earlier this year.
SLS is managed by NASA's Marshall Space Flight Center and its Director, Todd May, will address the Space Transportation Association on Capitol Hill on Thursday. Also speaking to STA on Thursday is the President of the Japan Aerospace Exploration Agency (JAXA), Naoki Okumura.
Those and other events we know about as of Sunday morning are shown below. Check back throughout the week for other events we learn about later and add to our Events of Interest list.
Monday-Wednesday, September 19-21
Tuesday, September 20
Tuesday-Friday, September 20-23
Wednesday, September 21
Wednesday-Thursday, September 21-22
Wednesday-Friday, September 21-23
Thursday, September 22
Thursday-Saturday, September 22-24
Thursday-Sunday, September 22-25
Friday, September 23
Rep. Jim Bridenstine (R-OK) used a teleconference meeting of the FAA's Commercial Space Transportation Advisory Committee (COMSTAC) today to explain why he believes legislation is indeed necessary to ensure that the U.S. government complies with the 1967 Outer Space Treaty in authorizing and continually supervising U.S. companies engaged in non-traditional commercial space activities. His draft legislation was the topic of the teleconference, a timely discussion coming just one day after Rep. Brian Babin (R-TX) expressed a very different point of view.
The COMSTAC meeting was announced weeks ago with the single purpose of discussing Bridenstine's draft legislation. COMSTAC advises the FAA's Office of Commercial Space Transportation (AST). Its members represent many of the companies involved in both traditional and non-traditional space businesses. Mike Gold, Vice President of Washington Operations for SSL (formerly Space System Loral), chairs the committee, which reports to FAA/AST Associate Administrator George Nield.
The purpose of the telecon was to allow government experts -- from Bridenstine's office and executive branch agencies -- to explain to COMSTAC's industry members what the draft legislation would do and why, and get their input.
Bridenstine, Nield and Gold have been in the forefront of an ongoing debate over how to create a U.S. regulatory system that facilitates new space ventures like private space stations or asteroid mining while complying with U.S. obligations under the Outer Space Treaty (OST). Article VI of the OST requires governments to authorize and continually supervise the activities of their non-governmental entities, like companies.
Until recently, private sector space activities fell under existing regulatory authorities established by law: FAA (launch and reentry), the Federal Communications Committee (spectrum use), or NOAA (commercial remote sensing). No agency has yet been designated, however, to regulate new commercial space ventures to put space stations in Earth orbit, send spacecraft to the Moon, Mars and asteroids, perform on-orbit satellite servicing, or a host of other non-traditional space businesses. Many of those companies argue that potential investors want to know what the regulatory environment will be before putting their money on the table. They want the government to make decisions now.
Moon Express, which plans to launch a lunar lander next year, recently received government approval using the interagency payload review process currently implemented by FAA/AST, but it took 7 months and is only for that one launch. It did not set a precedent for future such endeavors by Moon Express or other companies.
Bridenstine has been a leader in Congress in drafting legislation to address these issues and advocates for the FAA to be assigned the role of issuing "mission authorizations" for non-traditional space activities. He personally participated in the telecon today along with Christopher Ingraham, his staffer working on these issues. Bridenstine explained that his top concern is that a U.S. company will proceed with a plan to put a spacecraft on the Moon or conduct on-orbit servicing or some other new type of activity only to have a "near-peer" country like Russia or China complain at the last minute that the United States is violating the OST. That would put the United States "in a difficult position," he argues. Therefore he sees the need for "airtight" legislation that sets up a process by which the government authorizes and supervises these private companies. Once a company has gone through the process, the United States can unequivocally demonstrate to the international community that it has, in fact, complied with the treaty.
The Obama Administration has been open to working with these new companies, but he wonders if that will remain true over the long term future. He insisted that Congress "needs to exert its authority and power so that whatever administration comes next or is in place 50 years from now, the process exists" and is not subject to a new administration's "whims." He also worried that without a legislative solution, it could become a matter of "executive branch regulation by default." That opens the possibility of some agency saying no, with no recourse for the private sector.
Others participating in the telecon brought up another concern -- that an agency other than FAA, with less experience in a broad range of commercial space businesses, might decide that it wants to regulate these new commercial space activities and "fill the void." Several mentioned that the FCC apparently is indicating such an interest. Ingraham said that he has heard over the past few months that FCC wants to regulate on-orbit servicing and space traffic management, for example.
The State Department and the White House Office of Science and Technology Policy (OSTP) have been closely involved in these issues. OSTP's Ben Roberts stressed that the Obama Administration's interest is not to add regulations or burden companies, "but to make it easy for us to say yes." Section 108 of the last year's Commercial Space Launch Competitiveness Act (CSLCA) required OSTP to submit a report on how to deal with these issues and recommend a solution. It sent the report to Congress earlier this year along with draft legislation to implement it. It proposed that the FAA's parent, the Department of Transportation (presumably delegating it to FAA), be assigned the role of issuing mission authorizations for these new types of commercial endeavors using an "enhanced" payload review process. Roberts said today that OSTP is not wedded to that proposal, however. "We're not tied to a particular solution," but need a mechanism that allows the government to authorize such activities "clearly and crisply," he said.
It is the State Department that must explain to other countries how the United States is fulfilling its treaty obligations and thus has a keen interest in these issues. Brian Israel of State's Office of Oceans, International Environmental and Scientific Affairs, said one problem State has today is that under the interagency process for payload reviews it can only can say "yes" or "no," not "yes, but." Although it may agree with what an applicant wants to do, it cannot set conditions, approving the application as long as a company takes certain actions. For example, the State Department could say yes to the Moon Express application because it is launching a technology demonstration mission with limited capabilities and the company proactively agreed to abide by international planetary protection requirements, but that might hold true for a future application, he said.
A number of the COMSTAC members expressed reservations about various provisions in Bridenstine's draft bill, however. Bridenstine assured them that additional input is welcomed. He also acknowledged that there is little time left in this session of Congress to get such legislation passed and he may wait until the next session to introduce it.
Others see a need for more immediate action. In an interview after the telecon, Gold told SpacePolicyOnline.com that "there are no three words more pernicious to commercial space operators than 'continuing government supervision' and we need to take rapid action to lock in a benign light-touch regulatory approach" as exemplified in the Bridenstine draft bill. Gold, who worked for Bigelow Aerospace until recently, is a veteran of the years-long effort to get relief for commercial communications satellite companies from stringent International Traffic in Arms Regulations (ITAR) put in place at the turn of the century. He sees many parallels between the ITAR debate and this discussion.
Laura Montgomery, a former FAA attorney now in private practice, challenged this entire approach to these issues, however. She is not a member of COMSTAC, but the public is allowed to participate in these meetings. She argued that the treaty creates obligations for the government, not the private sector.
Her comments were along the same lines as those of Rep. Babin at a Commercial Spaceflight Federation breakfast yesterday. Babin argued that the OSTP proposal places the burden on companies to demonstrate their consistency with U.S. obligations, foreign policy and national security when it should be the other way around. He thinks there should be a presumption that the private sector activities are authorized and the government should only become involved if it has met certain conditions.
COMSTAC plans to continue the discussion about Bridenstine's draft legislation at its October meeting. Gold said that Observations, Findings and Recommendations (OFRs) might be adopted at that time to provide COMSTAC's formal views to FAA/AST.
UPDATE, September 15: The Senate Commerce Committee will markup the Senate version of a FY2017 NASA authorization bill on September 21 at 10:00 am ET.
Original Story, September 13, 2016: Rumors have been circulating for months that NASA's authorization committees will try to get a new NASA authorization bill enacted before the 114th Congress gavels to a close at the end of the year. Rep. Brian Babin (R-TX) yesterday again exhorted the Senate to act on a NASA authorization bill the House passed last year and a Senate draft bill -- different from that one -- is circulating, but time is getting short. One goal is to provide stability to NASA during the presidential transition and passage of legislation would give Congress a chance to get its policy choices formally on the table.
The House passed a FY2015 NASA authorization bill by voice vote in February 2015. Although the funding recommendation were only for that fiscal year, which is long past, the policy provisions were adopted on a bipartisan basis. Some have been overtaken by events, but Babin, who spoke at a Commercial Spaceflight Federation breakfast meeting yesterday morning, called it a "perfectly good bill" and urged the Senate to pass it or "quickly work with the House to negotiate a compromise." He noted that the House and Senate versions of the FY2017 Commerce-Justice-Science appropriations bill, which includes NASA, are in a "mature" stage and their funding levels could be "reconciled" into a new authorization bill.
Authorization bills set policy and recommend funding levels, but only appropriations bills actually provide money to agencies like NASA.
The last NASA authorization act was enacted in 2010. Its policy provisions remain in force, but the funding recommendations were only for three years, FY2011-FY2013.
Babin chairs the House Science, Space, and Technology Committee's Space Subcommittee. The committee approved a more recent bill for FY2016 and FY2017 (H.R. 2039), but on a strictly party-line basis because, among other things, it recommended deep cuts to NASA's earth science program that Democrats strongly opposed. No further action has occurred on that bill.
The FY2015 bill, H.R. 810 (itself is an update of a FY2014 bill that passed the House, but not the Senate), avoided highly charged partisan issues. The 128-page bill covers a lot of ground.
A 49-page staff draft of a Senate authorization bill for FY2017 is circulating that is more narrowly focused, but at a top level has similar themes. One key point on which the bills agree is that human exploration is a core NASA mission. Both bills support continued use of the International Space Station (ISS) and sending humans to Mars and other locations in deep space. Both want more details from NASA on how that will be accomplished. H.R. 810 requires NASA to develop and provide to Congress a "Human Exploration Roadmap" detailing capabilities and technologies needed. The draft Senate bill calls for a "strategic framework" and a "critical decision plan." Both require that the role of international and commercial partners be included.
One focus of the draft Senate bill not included in H.R. 810 is stability at NASA during the presidential transition. It includes a "sense of Congress" section that "the United States, in collaboration with its international and commercial partners, should sustain and build upon our national space commitments and investments across Administrations with a continuity of purpose..." As discussed at a recent hearing before the Senate Commerce, Science, and Transportation subcommittee that oversees NASA, there is bipartisan concern that NASA's programs could be disrupted again as they were when President Obama took office and cancelled the Constellation program begun under his predecessor, George W. Bush.
It should be noted that passage of a new NASA authorization bill may not provide any such assurance, however. Congress passed two NASA authorization laws supporting Bush's Vision for Space Exploration and its Constellation program to return humans to the lunar surface by 2020 and then go on to Mars. One passed in 2005 when Republicans controlled Congress, the other in 2008 when Democrats were in control. The pair of laws signaled not only bipartisan congressional consensus, but agreement between the White House and Congress on the path forward for human exploration, a long sought goal of human spaceflight advocates who had seen earlier presidential initiatives fail to win congressional support.
The existence of those laws did not, however, deter President Obama from cancelling Constellation after a review by a blue ribbon panel concluded that NASA's budget would have to ramp up to $3 billion more per year to implement it. Similarly, a new President could decide that the current program, with the goal of putting astronauts in orbit around Mars in the 2030s, is unaffordable.
Another place where H.R. 810 and the draft Senate bill agree is skepticism about the Asteroid Redirect Mission (ARM) as one of the elements of that plan to get to Mars. At the time H.R. 810 was written it was called the Asteroid Retrieval Mission and the bill requires a report explaining the need for and cost of the program. The draft Senate bill points out that the cost for ARM has risen and the NASA Advisory Council has raised concerns, and the program is competing for resources with other aspects of the human exploration program. It does not call for the program to be terminated, but offers a sense of Congress statement that alternatives should be considered for demonstrating the technologies needed for the humans-to-Mars mission and requires a report from NASA on those alternatives.
NASA's earth science program remains contentious in Congress, with many House and Senate Republicans arguing that NASA should focus on space exploration, not studying Earth, which other agencies could do. Democrats insist that earth science research from space is a key aspect of NASA's science program and no other agency launches earth science research satellites. NOAA is responsible for operational weather satellites and until recently was planning to launch some climate research sensors, but the White House decided to transfer those to NASA. H.R. 810, written in 2015, apparently foresaw such a turn of events and stated that if NASA is given additional responsibilities in earth science, the White House needed to provide it with additional money. The draft Senate bill is silent on earth science policy.
As for funding, the figures in H.R. 810 are no longer relevant. The draft Senate authorization bill would authorize $19.508 billion, the same total that is in the House Appropriations Committee's version of the FY2017 Commerce-Justice-Science appropriations bill. The Senate Appropriations Committee approved $19.306 billion, which is $202 million less. The draft Senate authorization bill allocates that $202 million to the Exploration account. NASA's other accounts are funded at the same level as in the Senate Appropriations Committee's bill.
Congress is scheduled to be in session for the rest of this month before adjourning until after the November elections, although there are indications that the Senate may leave earlier than that if it can pass a FY2017 Continuing Resolution (CR) to keep the government funded for the first part of FY2017. If it does, that would compress the time for reaching agreement on a NASA authorization bill. H.R. 810 and the draft Senate bill are similar enough to provide a basis for compromise, but different enough to prevent one. It is a matter of how motivated the involved parties are to pass a bill prior to this next presidential transition.
Rep. Brian Babin (R-TX) wants a complete rethinking of the government's role in regulating new commercial space ventures like asteroid mining. Rep. Jim Bridenstine (R-OK) has been championing an expansion of the regulatory authority of the FAA's Office of Commercial Space Transportation (AST), an approach also endorsed by the Obama Administration. The FAA's Commercial Space Transportation Advisory Committee (COMSTAC) will discuss a draft Bridenstine bill tomorrow. Babin is saying wait -- expanded government regulation may not be the answer.
Babin chairs the Space Subcommittee of the House Science, Space, and Technology (SS&T) Committee and gave a comprehensive address on the topic at a Commercial Spaceflight Federation (CSF) breakfast meeting this morning. Offering historical examples of where government attempts to regulate new technologies were "ill-conceived," he contended that other ways should be found to satisfy U.S. obligations "without stifling innovation or smothering the embers of creativity."
The issue stems from U.S. government obligations to authorize and continually supervise the space activities of non-government entities, like companies, under Article VI of the 1967 Outer Space Treaty. Babin defended the Treaty itself, saying it is "just as relevant today" as it was 50 years ago. It was adopted by the U.N. General Assembly on December 19, 1966; opened for signature on January 27, 1967; and entered into force on October 10, 1967. He characterized negotiations over the treaty in that Cold War era as reflecting two very different philosophies, communism and freedom. "Fortunately, the United States position was accepted" and Article VI allows for non-government entities to engage in space activities freely.
Another positive feature is that the treaty does not dictate how signatories should fulfill their Article VI obligations, he pointed out, leaving it up to each nation. Today, as innovative non-traditional space activities are emerging, the United States needs to decide what to do, but it should not quickly jump to the conclusion that more regulation is the answer. "While some may see regulations as the easiest way to 'check the box' on satisfying our international obligations ... I would challenge all of you to explore more creative options."
Section 108 of last year's Commercial Space Launch Competitiveness Act (CSLCA) required a report from the White House Office of Science and Technology Policy (OSTP) recommending an approach. The report was delivered to Congress earlier this year recommending that FAA/AST's authority be expanded to approve "mission authorizations" for companies that want to build space stations in Earth orbit, create lunar bases, mine asteroids, or other non-traditional commercial space activities. That approach is favored not only by OSTP and FAA/AST, but by Bridenstine who has been in the forefront of raising these issues in Congress and the space policy community.
Some of the companies interested in non-traditional space activities are represented on COMSTAC, which provides advice to FAA/AST. It is scheduled to discuss a draft Bridenstine bill tomorrow at 3:00 pm ET via teleconference. The meeting is open to the public (dial-in instructions are available here.)
Babin wants other options considered, however. He feels the OSTP proposal places the burden on companies to demonstrate their consistency with U.S. obligations, foreign policy and national security when it should be the other way around. "Instead, we should have a regime in which the private sector activities are presumed authorized and only after the government has met certain conditions can it place restrictions on an activity."
He is particularly concerned about language in the OSTP proposal that requires interagency concurrence. He noted that it is very similar to requirements NOAA must observe in granting licenses for commercial remote sensing satellites. NOAA is supposed to make decisions on license applications within 120 days, but that has turned into three years for one applicant, with no information provided on who in the interagency process objects, why, or when a resolution might be forthcoming. Babin does not want the same fate for the new non-traditional commercial space efforts. He used the NOAA example to counterbalance arguments that FAA/AST's authority should be expanded so companies can have regulatory certainty to ease investor concerns. With regulations like that, he argued, uncertainty is created, not resolved. His subcommittee held a hearing on NOAA's commercial remote sensing license process last week (SpacePolicyOnline.com will post a hearing summary soon).
Babin cited FAA/AST's recent approval of an application by Moon Express to launch a lunar lander as an example of how the current system can be made to work, but argued that Moon Express should have had a "framework -- not necessarily predicated on federal regulations -- that presumes their activity is authorized and places the burden on the government to demonstrate otherwise." Moon Express co-founder and CEO Bob Richards said that it took about 7 months for the company to get that approval by going to each involved government agency and voluntarily disclosing information each needed to sign off.
"America is great because it is a country where you have the freedom to create without government permission. ... Whether or not our system of values will be carried by the future pioneers of outer space will likely hinge on the degree to which America is able to unleash the awesome power of freedom and protect against government regulatory intervention."
Babin went on to discuss Space Traffic Management (STM) and Space Situational Awareness (SSA), two other areas where expanded FAA/AST authorities are being discussed. Babin argued that other options with greater private sector involvement should be explored. "That isn't to say that nothing can or should be done [by the government], just that we should be cognizant of existing authorities and consider a wide array of solutions, rather than resorting to the crutch of regulatory expansion."
He plans "substantive hearings" once several outstanding reports required by CSLCA are delivered and "legislative solutions, if necessary."
Here is our list of space policy events for the week of September 12-16, 2016 and any insight we can offer about them. The House and Senate are in session.
During the Week
From Long Beach, California to Vienna, Austria, it's a busy week in space policy.
Starting in Long Beach, AIAA holds its Space 2016 conference Tuesday-Thursday. Many sessions will be livestreamed and others will be posted later. The agenda on the livestream site tells you which is which. Note that all the times are Pacific Daylight Time, so add three for Eastern Daylight Time. NASA Administrator Charlie Bolden, DOD's Winston Beauchamp, and DFJ's Steve Jurvetson formally kick things off on Tuesday at 8:00 am PDT/11:00 am EDT. There are many very interesting plenary and "Forum 360" presentations throughout the conference, as well as the Yvonne C. Brill Lectureship on Thursday evening (6:30-7:30 pm PT/9:30-10:30 pm ET). The Brill Lectureship is awarded every two years by AIAA and the National Academy of Engineering. This year's honoree is Wanda Austin, President and CEO of the Aerospace Corporation, who will speak on Engineering Leadership. It will be livestreamed.
Just south of Long Beach, in Irvine, the National Academies Committee on Astrobiology and Planetary Sciences (CAPS) is meeting on Wednesday-Thursday. It will be available by WebEx and telecon. Among the topics are updates on robotic Mars exploration, the Europa mission, efforts to ensure a reliable supply of plutonium-238 (needed to power spacecraft that travel too far from the Sun or will land somewhere that make solar power infeasible), and NASA's astrobiology program.
Jumping 3,000 miles to the East, astrobiology will also be a topic in Washington, DC at the Library of Congress's Kluge Center on Thursday. The day-long symposium will discuss "The Emergence of Life: On the Earth, in the Lab, and Elsewhere." It will be filmed and the video posted later on the Kluge Center's website and YouTube.
Many other events are on tap in the Washington area. We'll highlight just two here. First. the FAA's Commercial Space Transportation Advisory Committee (COMSTAC) will meet via telecon to discuss draft legislation proposed by Rep. Jim Bridenstine (R-Oklahoma) to allow the FAA to perform an enhanced version of its current payload review process to authorize companies to conduct certain operations in Earth orbit, on the Moon and elsewhere in compliance with the 1967 Outer Space Treaty. The FAA did that for Moon Express recently, but it was an ad hoc process. The legislation apparently would codify that or a similar arrangement. Anyone may listen in on the telecon.
Second, the Senate Armed Services Committee (SASC) will hold a hearing on Thursday morning on long term military budget challenges. It's a broad topic and the witnesses are the service chiefs so it is difficult to anticipate the extent to which national security space issues will arise, but it would not be surprising. Most SASC hearings are webcast.
The House and Senate are in session this week and still discussing what to do about the FY2017 budget. They need to pass something by September 30 (probably a Continuing Resolution that lasts until mid-December, but we know the peril of trying to guess what Congress will do) and what to do about the rest of the fiscal year. Typically they end up passing one huge "omnibus" appropriations bill incorporating all 12 regular appropriations bills, but House Speaker Paul Ryan reportedly prefers several smaller "minibus" bills combining two or three at a time. As a former chairman of the House Budget Committee, he is well versed in budget matters, but there are critical top-level issues to resolve starting with the total amount of money that Congress should approve. The House and Senate reached agreement last fall on the total for FY2017, but very conservative Republicans did not vote in favor of it and want to more tightly constrain the amount for non-defense activities.
Moving even further East, the European Space Agency is sponsoring a "Space for Inspiration" conference at the London Science Museum on Wednesday-Thursday. It will be webcast on ESA's website. ESA Director General Jan Woerner heads an impressive set of government, industry, academic and non-profit speakers from Europe, Japan, and the United States, including several current and former astronauts.
A bit further East, Euroconsult will hold its annual World Satellite Business Week in Paris Monday-Friday. The website does not indicate if any of the sessions will be webcast. The "week" includes the 20th Summit for Satellite Financing, the 13th Symposium on Satcom Market Forecasts, the 8th Summit on Earth Observation Business, and SMARTPlane 2016.
Vienna, Austria is the last stop on this week's space policy journey. The European Space Policy Institute (ESPI) will hold a two-day (Thursday-Friday) symposium on Space for Sustainable Development.
Meanwhile, we'll be keeping an ear out for any news on SpaceX's investigation of the on-pad explosion on September 1. Elon Musk tweeted on Friday that it is the "most difficult and complex failure" the company has encountered.
Also, Chinese media report that the launch date for China's second space station, Tiangong-2 is in the September 15-20 time period. It will launch on a Long March 2F from Jiuquan. The first launch of China's new heavy lift Long March 5 from the new Wenchang launch site on Hainan Island is also coming up soon.
Those and other events we know about as of Sunday morning are shown below. Check back throughout the week for others we learn about later and add to our Events of Interest list.
Monday-Wednesday, September 12-14
Monday-Friday, September 12-16
Tuesday, September 13
Tuesday-Thursday, September 13-15
Wednesday, September 14
Wednesday-Thursday, September 14-15
Thursday, September 15
Friday, September 16
Saturday, September 17
Note: this article was updated on September 12.
Here is our list of space policy events for the week of September 5-9, 2016 and any insight we can offer about them. The House and Senate return to work on Tuesday.
During the Week
Monday is a U.S. Federal holiday, Labor Day. Congress returns to work on Tuesday. As we reported last week, its essential task is to pass appropriations legislation to keep the government operating past September 30 when FY2016 ends. They have a lot of work to do in the next four weeks. None of the 12 regular appropriations bills has passed yet (see our table of where the 12 appropriations bills stand at this point).
The House plans to go into recess again on October 1 and the Senate will follow suit before October 10 (the exact date is TBD). They won't return until after the November 8 elections. Whether they return at all in 2016 for a "lame duck" session or wait until the new 115th Congress begins in January 2017 is being debated. This is a standard debate in election years. Some argue that those who lost their elections should not continue to legislate and any issue not resolved before the pre-election recess should wait until the new Congress is in place. Others insist that the nation's work must be done and that time is needed to pass critical legislation. Congress is virtually certain to pass a Continuing Resolution (CR) to fund the first part of FY2017, so whether or not there will be a lame duck session makes a big difference in how long the CR lasts. Many in Congress want a short term CR that carries the government through to mid-December, meaning that Congress must still be meeting at that time to pass either another CR or, hopefully, final FY2017 appropriations. The most conservative House Republicans, however, reportedly want to push final FY2017 funding decisions into next year. We'll see what happens, but if what's past is prologue, there will indeed be a lame duck session.
Labor Day marks the end of "summer" and signals a resumption of the usually busy schedule of space policy events in Washington, far too many to highlight here (see full list below). One of special interest is Wednesday's hearing before the Space Subcommittee of the House Science, Space, and Technology Committee on "Commercial Remote Sensing; Facilitating Innovation and Leadership." Witnesses include the former chair of NOAA's Advisory Committee on Commercial Remote Sensing (ACCRES), Kevin O'Connell; the Executive Director of the Center for Spatial and Law Policy, Kevin Pomfrel; the President of Sunesis Nexis, LLC, Michele Weslander; University of North Dakota Assistant Professor of Space Studies Michael Dodge; and University of Mississippi School of Law Professor Emerita Joanne Gabrynowicz. The committee is dissatisfied with NOAA's regulatory oversight of the industry (taking too much time to decide on company requests, for example), although there are no NOAA witnesses on the list. NOAA is part of the Department of Commerce and the committee's Republican leaders recently wrote a letter to Secretary of Commerce Penny Pritzker asking for a statutorily required report that is overdue by more than 3 months. It is the fourth letter they have written to her about commercial remote sensing issues since February.
Congress's return is certainly important news, but Thursday's launch of the robotic asteroid sample return mission OSIRIS-REx surely will take the spotlight. NASA has scheduled pre-launch briefings over two days (Tuesday and Wednesday) and will provide live coverage of the United Launch Alliance (ULA) Atlas V launch on Thursday evening. The 2-hour launch window opens at 7:05 pm ET. NASA TV coverage begins at 4:30 pm ET and a post-launch press conference will begin about 2 hours after launch. The weather forecast as of today (Sunday) is 80 percent go. (As we've said before, it's important not to confuse OSIRIS-REx with the Asteroid Redirect Mission, which also will return an asteroid sample to Earth, but is part of NASA's human spaceflight program, not its science program, and has very different objectives.)
Speaking of human spaceflight, three ISS crew members return to Earth on Tuesday night ET. Jeff Williams, Alexey Ovchinin and Oleg Skripochka will land in Kazakhstan at 9:14 pm ET (7:14 am Wednesday local time at the landing site). NASA TV will provide live coverage of undocking and landing.
George Washington University's Space Policy Institute and the Maureen and Mike Mansfield Foundation are having a seminar on Friday on U.S.-Japan Space Cooperation featuring government, academic, and industry officials from both countries. It is part of a series of meetings of the U.S.-Japan Space Forum that began in 2014 to address how the two countries could work together to use space for common interests.
Those and other events we know about as of Sunday morning are shown below. Check back throughout the week to see others that we learn about later and add to our Events of Interest list.
Tuesday, September 6
Wednesday, September 7
Wednesday-Thursday, September 7-8
Thursday, September 8
Friday, September 9
Here is our list of space policy events for the next TWO weeks, August 29-September 9, 2016 and any insight we can offer about them. The House and Senate return for legislative business on September 6.
During the Weeks
We have one last relatively light week before Congress returns on September 6. The House and Senate leadership and congressional committees have not announced their schedules yet, but we should learn more as the week progresses,
Meanwhile, this week NASA has a press conference on Tuesday to introduce the three International Space Station (ISS) crew members who will launch in November (Whitson, Pesquet and Novitsky) and on Thursday NASA TV will provide live coverage of the second ISS spacewalk by Jeff Williams and Kate Rubins. Two of the panels of the ongoing National Academies Earth Science and Applications from Space (ESAS) Decadal Survey will meet Tuesday-Wednesday (Solid Earth, in Washington DC) and Thursday-Friday (Hydrology, in Irvine, CA).
Next week begins with a U.S. Federal holiday, Labor Day, on Monday. On Tuesday, Congress returns to work. As usual, it is facing the task of passing some sort of appropriations bill -- probably a Continuing Resolution (CR) -- to keep the government operating when FY2017 begins on October 1. They have four weeks to do it and it is possible that final agreement could be reached on at least one of the 12 regular appropriations bills -- Military Construction-Veterans Affairs (MilCon-VA). It has already passed the House and Senate, a conference agreement was reached, and the House approved the conference report. An attempt to bring the conference report to the Senate floor. however, failed even though the bill is the legislative vehicle being used to provide funding to deal with the Zika virus. Senate Democrats assert that it contains "poison pill" provisions Republicans know Democrats will not accept. Even if that issue gets cleared up by the end of September, there are still the other 11 regular appropriations bills. Here's a snapshot of where all 12 stand as of today.
One issue is that the House Appropriations Committee approved more funding in its bills than allowed under the budget caps, so that will have to be fixed to avoid sequestration. The Senate bills are below the caps, though, so it can probably be resolved in conference committee(s).
There is little incentive, actually, for Congress to agree to final FY2017 appropriations before the election since who occupies the Oval Office and which part(ies) control the House and Senate will make a significant difference for the fiscal road ahead. Similarly, there is little incentive for Republicans to allow their most conservative members to force a government shutdown, since that could undermine their goal of retaining control of the House and Senate. The top Democrat on the House Budget Committee and Senate candidate Chris Van Hollen said last week that he could not rule out a shutdown, however, because some Republicans strongly oppose the budget deal worked out among then House Speaker John Boehner, Senate Majority Leader Mitch McConnell, and President Barack Obama last fall. That deal relaxed budget caps set by the 2011 Budget Control Act and those Republicans want to stick by the original caps (even though, as noted, the House Appropriations Committee approved funding in excess even of the revised caps). Still, convincing the electorate to let them retain control of Congress by showing they can keep the government operating probably will outweigh those complaints. Van Hollen said he hopes Congress will pass a CR that covers the time period past the election, with final resolution before the end of the calendar year.
Appropriations will be a key issue, but not the only one. The FY2017 National Defense Authorization Act (NDAA) is in conference already and there continues to be talk of getting a new NASA authorization bill completed this year. Plus a host of non-space related issues. September promises to be a busy month before Congress recesses again to continue campaigning in advance of the November 8 elections.
Apart from the congressional schedule, the first week of September offers two especially interesting conferences and a very important space science launch. The conferences are an aerospace workforce summit co-sponsored by AIAA and AIA to highlight issues for the next President, and a U.S.-Japan space cooperation seminar co-sponsored by the Mansfield Foundation and the Space Policy Institute at George Washington University. The launch is of the robotic asteroid sample return mission OSIRIS-Rex, scheduled for September 8.
Those and other events we know about as of Sunday, August 28, are shown below. Check back throughout the weeks for others we learn about later and add to our Events of Interest list.
Tuesday, August 30
Tuesday-Wednesday, August 30-31
Thursday, September 1
Thursday-Friday, September 1-2
Tuesday, September 6
Wednesday-Thursday, September 7-8
Thursday, September 8
Friday, September 9
The Office of Management and Budget (OMB) has informed the White House and Congress that the 12 appropriations bills reported from the House Appropriations Committee for FY2017 exceed budgets caps by $792 million -- $17 million in defense and $775 million in non-defense spending. If enacted, they therefore would be subject to automatic reductions (sequestration) to bring the total in line with the levels Congress and the President agreed to last fall. The companion bills reported from the Senate Appropriations Committee, however, are below the caps.
In an effort to curb deficits, the White House and Congress agreed to 10-year limits on federal spending in the 2011 Budget Control Act (BCA). After a congressional "supercommittee" could not agree on how to implement the reductions, automatic cuts -- the sequester -- went into effect for FY2013. The consequences were sufficiently dire for both defense and non-defense agencies that agreements were reached to relax the limits for FY2014-2015 (the Ryan-Murray agreement) and FY2016-2017 (the Boehner-McConnell-Obama agreement). Currently, the top line for defense spending for FY2017 is $609.868 billion and for non-defense (including NASA and NOAA) is $543.597 billion.
In a required "Sequestration Update" to the President and Congress on August 19, OMB reported that the House bills surpass the modified limits for FY2017 by $17 million in defense spending and by $775 million in non-defense spending. The Senate bills are under the limits, however. They provide $167 million less for defense and $2.032 billion less for non-defense.
Only one of the 12 bills (Military Construction-Veterans Affairs) has passed both the House and Senate. Four others have passed the House (Defense, Financial Services, Interior and Environment, and Legislative Branch). One other has passed the Senate (Transportation-HUD, as part of a package with MilCon-VA, but it was not incorporated into the House-passed bill).
Congress will have to do something about appropriations before October 1 when FY2017 begins or the government will shut down. The House and Senate reconvene on September 6, giving them four weeks. They most likely will pass a Continuing Resolution (CR) to keep the government funded at FY2016 levels for a period of time, although Rep. Chris Van Hollen, the top Democrat on the House Budget Committee, said earlier this week that he could not rule out a shutdown because of Republican opposition to last fall's Boehner-McConnell-Obama agreement. His hope, however, is that a CR will be enacted to cover through the November elections, with final agreement on FY2017 funding levels before the end of 2016 and the 114th Congress.
How the House and Senate resolve their differences to avoid breaching the budget caps and what effect that will have on civil or national security space programs is unknowable at this point. The caps are not broken down by agencies, only into defense and non-defense categories. It is up to Congress to decide how to allocate the funds, which involves a lot of give-and-take.
At this point, FAA's space office, NOAA's satellite programs, and NASA have fared well in the House and Senate appropriations committees. The committees have been especially generous to NASA when compared to the President's request for FY2017, although the amounts are similar to what Congress appropriated for FY2016.
The House Appropriations Commerce-Justice-Science (CJS) bill provides $19.508 billion for NASA and the Senate committee approved $19.306 billion. Congress appropriated $19.285 billion for FY2016, but for FY2017 the President requested $18.262 billion in appropriated funds -- a $1 billion cut. (As explained in SpacePolicyOnline.com's fact sheet on NASA's FY2017 budget request, NASA displays its request as $19.025 billion because it includes $763 million in non-appropriated funding from mandatory accounts and a tax on oil companies. NASA has never received money from the mandatory part of the federal budget, which pays for programs like Social Security and Medicare, and how the White House imagined that it would this year is a mystery. The tax on oil companies was part of a White House "clean transportation" initiative that never materialized. The inclusion of the $763 million is widely viewed as an attempt to obscure the fact that the President's request was a significant cut for NASA.)
Congress's ability to provide so much more than the request is largely because the budget caps were relaxed and NASA has powerful champions on the House and Senate Appropriations committees.
As a new President takes office and a new Congress convenes next year, decisions will need to be made on whether to change or eliminate the sequester rules. They are set in law and will go back into full effect with the FY2018 budget, the first that will be submitted by the incoming President.