A draft bill being circulated for discussion would assign to the Department of Commerce (DOC) responsibility for registering non-government space activities to ensure, among other things, compliance with U.S. treaty obligations.  For more than a year, the FAA’s Office of Commercial Space Transportation (FAA/AST) has been in the forefront of such discussions.  The draft bill instead would consolidate most of the government’s authority for overseeing commercial space activities in DOC’s Office of Space Commerce and elevate that office to a higher level in the department.

The draft American Space Commerce Free Enterprise Act of 2017 is a comprehensive commercial space regulatory streamlining bill being circulated for comment by Reps. Lamar Smith (R-TX), Brian Babin (R-TX) and Jim Bridenstine (R-OK).  Smith chairs the House Science, Space, and Technology Committee.  Babin chairs its Space Subcommittee.  Bridenstine is a member of both and a candidate to become the next NASA Administrator. 

Last year, Bridenstine was championing the idea of expanding FAA/AST’s responsibilities to include what is sometimes called “mission authorization” — providing the authorization and continual supervision of non-governmental space activities required by Article VI of the 1967 Outer Space Treaty. It was also the position of the Obama White House’s Office of Science and Technology Policy (OSTP), which was required by the 2015 Commercial Space Launch Competitiveness Act (CSLCA) to submit a report to Congress with recommendations on how to fulfill those treaty obligations.  OSTP submitted the report on April 4, 2016.  FAA is part of the Department of Transportation (DOT) and OSTP recommended that DOT take on the mission authorization task.

SpacePolicyOnline.com obtained a copy of the new draft legislation.  It does not use the term “mission authorization,” but the function would be assigned to the Department of Commerce instead of FAA.  The bill is much more far-reaching, however.  It basically would reset U.S. government oversight and regulation of commercial space activities, consolidating most of it at Commerce and giving the department only a very light regulatory hand.

In a written statement to SpacePolicyOnline.com, Bridenstine said that although his American Space Renaissance Act (ASRA) last year called for expanding FAA’s regulatory role, he now is supporting the approach proposed in this draft legislation.  “I laid out one legislative solution in [ASRA], but my objective over the past several years has been to find a solution that can gain a consensus on Capitol Hill and achieve that policy outcome.  Working closely with Chairman Smith and Chairman Babin, we have developed proposed legislation to create certainty with minimal regulatory burden for the commercial space industry.  This is a strong starting point and I look forward to working with the chairmen and stakeholders to strengthen the bill.”

Responsibilities today are split.  FAA/AST regulates and facilitates commercial space launch and reentries (but not what takes place in space).  The Federal Communications Commission (FCC) assigns radio spectrum to commercial satellite operators ensuring compliance with International Telecommunication Union (ITU) requirements and promulgates space debris mitigation regulations. NOAA, part of the Department of Commerce, licenses commercial earth remote sensing satellites.

The Office of Space Commerce (OSC) also is part of NOAA.  Created in the 1980s, originally it was part of the Secretary of Commerce’s office, but later was renamed the Office of Space Commercialization and transferred to NOAA, one of the dozen bureaus and offices in the Department.  CSLCA restored its original name and this bill would restore its original status.  Instead of being part of NOAA and headed by a director appointed by the Secretary of Commerce, the office would be physically located at the same place as the Secretary of Commerce and headed by an Assistant Secretary of Commerce for Space Commerce appointed by the President with the advice and consent of the Senate.  That person would report directly to the Secretary.

Today, OSC is a very small office with a budget in the hundreds of thousands rather than millions.  It is responsible for promoting commercial space activities, but its budget in FY2015 and in FY2016 was only $600,000.  The Obama Administration requested a $1.4 million increase for FY2017, bringing the total to $2 million, but Congress provided only $200,000 of that increase, giving the office a total of $800,000 for FY2017.

The revitalized OSC envisioned in this draft legislation would play a much bigger role.  U.S. non-governmental entities would need to register their activities with OSC, which could accept or deny the registration based on strict rules and timetables established in the bill.  For example, the Secretary of Commerce would have 60 days to approve an application or not.  If it is disapproved, a clear explanation must be provided and the applicant may reapply to address the shortcomings.  If the Secretary does not act within 60 days, the application is automatically approved. The Secretary could waive registration for a space object if it is “too
trivial or minor to merit consideration” or would be operated in
conjunction with another space object that is registered. 

Once a registration is approved, no other part of the government could prevent launch or reentry on the basis of national security, foreign policy, or U.S. international obligations. It is solely the Secretary of Commerce’s responsibility to determine if the proposed activity conforms with U.S. international obligations such as preventing the launch of nuclear weapons or weapons of mass destruction, as required under the Outer Space Treaty.  In a sense, this is the mission authorization function envisioned by OSTP, although it is not called that in the draft bill.

The FAA/AST would retain its role in regulating commercial space launch and reentries, but no longer could review U.S. payloads for anything other than safety.  Its current authority to review payloads for safety, national security, foreign policy and international obligations would apply only to foreign payloads under this draft bill. The FCC would still assign radio spectrum, ensure compliance with ITU international obligations, and regulate communication satellite operations, but no longer would be involved in on-orbit space debris or end-of-life satellite operations or ensuring compliance with any U.S. foreign obligations. NOAA’s Office of Commercial Remote Sensing Regulatory Affairs would be abolished, with OSC taking on those duties.

The House Science, Space, and Technology Committee has already held several hearings on commercial space topics over the past year or so, including regulation of commercial remote sensing satellites. That committee took the lead in crafting and passing existing law on that topic — the 1992 Land Remote Sensing Policy Act.   Despite its best efforts to set time limits on how long the government can take to approve applications to build, launch and operate commercial remote sensing satellites, however, national security agencies have “stopped the clock” on some applications, turning what should be a 120-day process into one that can take years.  Much has changed in the commercial remote sensing satellite marketplace since 1992 as well, making the regulatory environment ripe for review.

This draft legislation would streamline that process.  It states as U.S. policy that “to the maximum extent practicable, the Federal government shall take steps to protect the national security interests of the United States that do not involve regulating or limiting the freedoms of United States non-governmental entities to explore and use space, which shall include Federal government agencies mitigating against any threats to national security posed by United States citizen exploration and use of outer space by changing Federal government activities and operations.”

The Secretary of Commerce, and only the Secretary of Commerce, is authorized to permit U.S. entities to operate commercial remote sensing satellites: “No other agency has the authority to authorize, place conditions on, or supervise space-based remote sensing systems.”  Furthermore, the Secretary may not place conditions on the permits approved for such U.S. systems if substantially similar capabilities are already available or expected to become available in 3 years from other domestic or foreign commercial sources.  As with the other commercial space activities, the Secretary has 60 days to make a decision or the permit is automatically approved.  If the Secretary determines the system poses a “significant” national security threat, the permit may be granted with conditions to ameliorate those concerns, or denied.  The word significant is defined as imminent, cannot practically be mitigated by changes to federal government activities or operations, and is not currently presented by a foreign actor or expected to be within 3 years.

This draft bill builds on hearings already held by the committee, including one in March that aired different points of view on how to ensure U.S. compliance with the Outer Space Treaty.  Whether the committee will hold a hearing specifically on this bill or not remains to be seen.  The purpose of circulating the discussion draft is to gather input from those who would be affected by it and then determine the next steps.

Over the weekend, congressional leaders agreed on a final FY2017 omnibus appropriations bill.  NASA would be funded at $19.653 billion, a substantial increase over the amount requested last year by President Obama and somewhat more than approved by the House and Senate appropriations committees.  The recommendations approved by the committees were never finalized by Congress last year.  In the intervening months, the committees obviously found a way to direct even more funding to the space agency.

The bill, H.R. 244 as amended, still must pass the House and Senate, but key members of both chambers clearly believe they have the votes to do so.  President Trump would then have to sign it into law.  Presumably congressional leaders have coordinated with the White House to ensure that happens even though the bill does not include elements of the supplemental request Trump sent to Congress in March, such as funding for the border wall with Mexico.  That will be debated as part of the FY2018 appropriations process.

Congress is using H.R. 244 as the legislative vehicle for the omnibus appropriations bill.  It originally was on an unrelated topic (HIRE Vets).  It is common for Congress to use an existing, unrelated bill as a vehicle for an appropriations measure like this because it has already gone through part of the legislative process so can move along quickly.

FY2017 is more than half over already.  It began on October 1, 2016.  The government has been operating under a series of Continuing Resolutions (CRs) that fund agencies at their FY2016 levels. The most recent CR, passed last Friday, expires this Friday, May 5.  This new “full year” omnibus appropriations bill is expected to pass the House as early as Wednesday, followed by Senate passage soon thereafter to complete action on the FY2017 budget before that deadline.

This is an omnibus appropriations bill that combines 11 of the 12 regular appropriations bills into one package (the 12th bill, Military Construction/Veterans Affairs, is the only one that cleared Congress last year).   The Commerce-Justice-Science (CJS) portion, which funds NASA and NOAA, is Division B.

President Obama’s FY2017 budget request for NASA was convoluted.  Although NASA budget materials show the request as $19.025 billion, only $18.262 billion was requested from appropriated funds — the money over which appropriations committees have jurisdiction.  The remaining $763 million comprised $663 million that somehow was supposed to be extracted from the “mandatory” portion of the budget that funds programs like Medicare and Social Security, plus $100 million from a tax Obama wanted to impose on oil companies. The appropriations committees ignored that part of the request and dealt only with the $18.262 billion request for appropriated funds.

The Senate Appropriations Committee approved $19.306 billion, close to the $19.285 billion Congress provided for NASA in FY2016.   The House Appropriations Committee was more generous, approving $19.508 billion. 

The final bill adds even more, providing a total of $19.653 billion, an increase of  $1.391 billion over Obama’s request for appropriated funds. 

Key elements of the funding provided for NASA include the following.  Comparisons to “the request” are to the amounts requested from appropriated funds (i.e., excluding the mythical $763 million).  An updated version of SpacePolicyOnline.com’s NASA budget fact sheet will be posted soon (available from our left menu under “Our Fact Sheets and Reports”).  It includes a table comparing FY2016 appropriations with the FY2017 request as it worked its way through the authorization and appropriation processes.

• Science:  $5.765 billion (the request was $5.303 billion).
  • Earth science: $1.921 billion, including $90 million for PACE and $130.9 million for Landsat 9 (President Trump has proposed cancelling PACE in his FY2018 budget request).  The request was $1.973 billion.
  • Planetary science: $1.846 billion, including $363 million for outer planets of which $275 million is for the Europa mission.  The request was $1.391 billion. 
  • Astrophysics: $750 million, including $105 million for WFIRST, $85.2 million for SOFIA, and $98.3 million for Hubble.  The request was $696.5 million.
  • James Webb Space Telescope:  $569.4 million, the same as the request.
  • Heliophysics: $678.5 million.  The request was $673.7 million.
  • Education and Public Outreach:  $37 million to be derived equally from planetary science and astrophysics and administered by the Astrophysics Division (this amount is included in the $750 million for astrophysics, not in addition to it, according to a table in the report accompanying the bill)
• Aeronautics:  $660 million (the request was $634.5 million).
• Space Technology:  $686.5 million (the request was $690.6 million), including $35 million for nuclear propulsion, $30 million for small launch capabilities, $35 million for additive manufacturing, $25.718 million for optical communications, and $66.6 million for solar electric propulsion.
• Exploration:  $4.324 billion (the request was $3.164 billion), including direction that NASA continue to develop advanced propulsion, asteroid deflection and grappling technologies associated with the Asteroid Redirect Mission but “these activities should not distract from the overarching goal of sending humans to Mars” and $75 million is designated for habitation augmentation activities.  
• Space Operations: $4.951 billion (the request was $5.076 billion), including the full request of $1.185 billion for commercial crew and “up to” $1.028 billion for commercial cargo.  No further breakdown was provided.
• Education:  $100 million (the request was $100.1 million), including $18 million for EPSCoR, $40 million for Space Grant, $32 million for MUREP, and $10 million for STEM Education and Accountability Projects (President Trump has proposed eliminating NASA’s Office of Education in his FY2018 budget request).
• Safety, Security and Mission Services: $2.769 billion (the request was $2.837 billion).
• Construction and Environmental Compliance and Restoration (CECR): $360.7 million (the request was $419.8 million).
• Office of Inspector General:  $37.9 million (the request was $38.1 million).

The big winners were planetary exploration and human exploration.  Many other accounts also saw increases of varying magnitude.  Space Operations was the only area of flight programs to get less than requested — $4.951 billion instead of $5.0976 billion.  Since commercial crew and commercial cargo were funded at their requested levels, the reductions will have to come from other parts of the account such as International Space Station operations or Space and Flight Support.  The $68 million cut to Safety, Security and Mission Services and the $59 million cut to CECR could affect NASA’s internal operations.  They fund day-to-day operations and construction projects at NASA’s field centers around the country, for example, including cybersecurity activities.

The next step for the omnibus appropriations bill is to get a “rule” from the House Rules Committee spelling out what amendments may be offered (if any) and how much time is allowed for debate.  The committee will meet tomorrow (Tuesday) at 3:00 pm ET.   The text of the bill and explanatory statement are posted on the Rules Committee’s website.  The bill will then go the House floor for debate and a vote, then to the Senate, then to the President’s desk.  That is all expected to completed before Friday midnight when the existing CR expires.

Congress has been able to be generous to NASA for the past several years because Congress and the Obama White House agreed to relax spending caps imposed by the 2011 Budget Control Act (BCA).  The last agreement relaxed the caps through FY2017.  They return for FY2018.  Whether the Trump Administration and Congress will agree to relax them — or repeal the law entirely — remains to be seen.   President Trump asserted in his FY2018 budget blueprint that he had repealed the BCA for defense spending.  He cannot repeal a law; Congress must do that.  In any case, “repealing” only the limits for defense spending while keeping them for non-defense spending (like NASA) would certainly encounter strong resistance in Congress, especially from Democrats.

The point is that the largely happy outcome for NASA in FY2017 may not be a bellwether for FY2018 or future years.  NASA clearly has strong support in Congress, especially from the powerful chairmen of the House and Senate CJS subcommittees — Rep. John Culberson (R-TX) and Sen. Richard Shelby (R-AL) — but NASA is just one small part of federal spending, which is deeply affected by debates over tax reform and deficit reduction.  Anything can happen.

Correction: an earlier version of this article incorrectly stated that the bill and explanatory statement did not provide details on funding under the Exploration account.  A table in the explanatory statement does specify the following:  Orion, $1.35 billion; SLS, $2.15 billion; Exploration Ground Systems, $429 million, and Exploration R&D, $395 million.