Senate Passes NASA Authorization at Last Minute, Too Late for House Action This Year

The Senate completed its legislative business for the 114th Congress in the early hours this morning.   In its last legislative day, it passed dozens of bills by unanimous consent, including the NASA Transition Authorization Act.  The House already has left, so it is too late for the bill to be finalized this year, but it could serve as the basis for a new bill in the next Congress.  A link to the text of the bill as passed is available below.

The most recent NASA authorization act was enacted in 2010.  It recommended funding levels only through FY2013, but the policy provisions remain in force until or unless changed by future legislation.  The House passed a bill in 2014, but the Senate did not take it up.  In February 2015, the House passed another bill (H.R. 810), very similar to the one passed in 2014.  In April 2015, the House Science, Space, and Technology (SS&T) Committee approved a new bill, H.R. 2039, for FY2016-2017, but on a strictly party-line vote primarily because it included deep cuts to NASA’s Earth science program.  The bill never advanced out of committee.

In September 2016, the Senate Commerce, Science, and Transportation Committee approved its own bill, S. 3346.  Since that time, the House and Senate have been negotiating a final bill that blends the Senate committee’s bill, H.R. 810, and H.R. 2039.

The fruit of that negotiation is the version of S. 3346 that passed the Senate overnight.

The House and Senate have gone home for the year. In the past, Congress would adjourn “sine die” — “without a day” for returning. That signaled the end of a Congress (which lasts two years, divided into two sessions) and everyone would go home.  However, under the Constitution, the President may appoint people to government positions that require Senate confirmation without such action if the Senate is in recess for three days or more (“recess appointments”).  To avoid that, in recent years the Senate (and often the House) has scheduled “pro forma” sessions at three-day intervals whenever it takes a break where one Senator arrives at the chamber and gavels it in and out of session so it is not in recess for more than 3 days. Under the Constitution (Amendment XX), Congress must meet at noon on January 3 each year.  Strictly speaking the 114th Congress, 2nd session ends at 11:59 am ET on January 3 and the 115th Congress, 1st session, begins at 12:00 pm ET on January 3.  The Senate has pro forma sessions scheduled between now and January 3 so recess appointments are not possible, but no legislative business takes place during such sessions.  

Legislation that does not pass in a Congress dies and the effort must begin again in the next Congress.  Bills like this may serve as the basis for new legislation, however, so although there will be no further action in the 114th Congress, its text may remain relevant. 

Congress also did not pass the Commerce-Justice-Science (CJS) appropriations bills that fund NASA.  They were approved by the House and Senate Appropriations Committees, but were not passed by either chamber.  NASA is operating under a Continuing Resolution that passed the Senate just before midnight that lasts through April 28, 2017. 

Most of the key congressional players for NASA will still be in their positions when the 115th Congress convenes on January 3.  Three exceptions are Rep. Donna Edwards (D-Maryland), the top Democrat on the House SS&T’s Space Subcommittee, who ran for Senate and lost; Rep. Mike  Honda (D-California), top Democrat on the House CJS appropriations subcommittee, who lost his reelection bid; and Sen. Barbara Mikulski (D-Maryland), top Democrat on the full Senate Appropriations Committee as well as its CJS subcommittee, who retired.

The hope was to get a new NASA authorization bill passed before a new President took office to codify congressional direction before any changes were made.   Theoretically, that could still happen.  Donald Trump will not become President until January 20, and the House and Senate will be back in session for legislative business beginning January 3.  The text of this bill could be introduced as new legislation and passed in the first weeks of the new Congress.  Anything can happen.  Thus, it is summarized below even though officially it is dead now.

In brief, the 139-page Senate-passed bill does the following:

• Funding: authorizes $19.508 billion for NASA for FY2017 (future years are not addressed).  That is the same amount as approved by the House Appropriations Committee in the FY2017 CJS bill, and $202 million more than what the Senate Appropriations Committee approved ($19.306 billion).  Authorization bills do not actually provide any money. Only appropriations bills do that, although authorization bills provide guidance to appropriators on how the committees that oversee an agency, like NASA, think the money should be spent.  In this case, the authorization bill allocates the money differently than either appropriations bill.
• International Space Station (ISS):  offers a sense of Congress that ISS should continue at least until 2024, with an evaluation of extending it to 2028. Amends the 2010 NASA authorization act to direct that NASA may not acquire human spaceflight transportation services to and from ISS from a foreign entity unless certain conditions exist. Requires that commercial crew systems meet NASA human rating requirements. States that it is U.S. policy for NASA to procure commercial cargo services through fair and open competition in compliance with Federal Acquisition Regulations. Offers a sense of Congress that an orderly transition is needed to a future where NASA no
  longer is the primary supplier and consumer of low Earth orbit (LEO)
  human spaceflight capabilities and requires biennial reports from NASA on how to achieve that transition.
• Space Communications: requires a plan on how to meet NASA’s LEO and deep space communications and navigation needs for the next 20 years.
• Indemnification of NASA Launch and Reentry Services:  states that the United States will indemnify launch and reentry service providers from third-party claims, with conditions, for launches that are unusually hazardous or nuclear in nature.
• Human Deep Space Exploration: amends the 2010 NASA authorization act to state, among other things, that a key objective is to achieve human exploration of “Mars and beyond” through a steppingstone approach. Directs the NASA Administrator to manage programs, including the Space Launch System (SLS) and Orion, to enable humans to explore “Mars and other destinations” by defining “a series of sustainable steps and conducting planning, research, and technology development on a timetable that is technically and fiscally possible” and the sustainable steps may include intermediate destinations such as the “surface of the Moon, cis-lunar space, near-Earth asteroids, Lagrangian points, and Martian moons.” Directs the NASA Administrator to engage with international, academic and industry partners to maximize cost-effectiveness. States that the President may invite ISS partners “and other nations, as appropriate” to participate in a human mission to the surface of Mars “under the leadership of the United States.”
• SLS/Orion:  reaffirms congressional support for these programs and directs the NASA Administrator to develop an SLS upper stage to enable human exploration of deep space.  Directs NASA to conduct the uncrewed Exploration Mission-1 (EM-1) launch by 2018 and crewed EM-2 by 2021 “subject to applicable human rating processes and requirements”; to conduct future missions at a rate to ensure safety and operational readiness (and assess other uses for SLS); and to develop a habitat as a key element of the deep space human exploration program.
• Human Exploration Roadmap:  requires NASA to submit a human exploration roadmap, with extensive language about what it must include, beginning December 1, 2017 with biennial updates.
• Advanced Space Suits:  requires the NASA Administrator to submit a plan for achieving a new space suit capability for future deep space missions that might also be used on ISS.
• Asteroid Redirect Robotic Mission (ARRM): requires an evaluation of alternatives to ARRM for demonstrating technologies and capabilities needed for the Journey to Mars.
• Mars 2033:  requires a study by an independent, non-governmental systems engineering and technical assistance organization to study a human mission to Mars to be launched in 2033 (it does not specify whether it is to orbit or land).
• Health Care for Former Astronauts:  incorporates the TREAT Act (H.R. 6076), which passed the House (amended) on Wednesday.  The current language is similar to what was in the Senate Commerce Committee version of the bill allowing NASA to provide health care to former astronauts and government payload specialists for conditions resulting from their spaceflights.
• Science: reaffirms congressional intent that NASA have a balanced and adequately funded science portfolio including small, medium and large space missions, suborbital missions, research and analysis grants, and technology development, with science priorities guided by Decadal Surveys from the National Academies of Sciences, Engineering and Medicine.  Expresses support specifically for planetary science, especially the Mars 2020 rover and a mission to Europa; the James Webb Space Telescope; and the Wide-Field Infrared Survey Telescope.  Amends the list of U.S. objectives for aeronautical and space activities (51 U.S.C. 20102(d)) to add a 10th item — “the search for life’s origins, evolution, distribution, and future in the universe.”  Directs the NASA Administrator to contract with the National Academies to develop a science strategy for the study and exploration of exoplanets, to develop a science strategy for astrobiology, and make an assessment of the architecture of the robotic Mars exploration program.  Requires the Administrator to submit reports on how to utilize public private partnerships to study astrobiology and Near Earth Objects (NEOs). Requires the Director of the White House Office of Science and Technology Policy (OSTP) and the NASA Administrator to submit reports on carrying out a NEO survey program, an analysis of options to divert an object on a collision course with Earth, and a description of efforts to coordinate and cooperate with other countries on discovering and mitigating hazardous asteroids and comets.  Allows NASA to conduct its senior reviews of science mission extensions on a triennial (rather than biennial) basis.  Prohibits NASA from terminating the SOFIA program. Directs OSTP to conduct an analysis of needs for radioisotope power system material for solar system exploration missions.  (The bill does not mention Earth science.)
• Aeronautics:  expresses support for a robust aeronautics program.  Requires the NASA Administrator to submit roadmaps for research and development of hypersonic and supersonic aircraft and rotorcraft and other runway-independent air vehicles.
• Space Technology:  establishes as policy that NASA shall develop technologies to support NASA’s core missions.  Sets as a goal development of propulsion technologies to shorten the human travel time to Mars.  Requires a report from NASA comparing the agency’s space technology investments to the high priority areas identified by the National Academies report on NASA’s Space Technology Roadmaps.

The bill also has extensive language on “maximizing efficiency” at NASA that includes a host of issues too numerous to summarize here.  Among them are direction regarding NASA’s information technology and cybersecurity activities and the leveraging of commercial satellite servicing capabilities across mission directorates, and requirements for an OSTP report on issues relating to protecting the Apollo landing sites on the Moon, a National Academy of Public Administration review of the effectiveness of the NASA Advisory Council, and a NASA report on concepts and options for removing orbital debris.  The bill also extends by one year NASA’s Extended Use Leasing (EUL) authority (51 U.S.C. 20145(g)), which currently sunsets on December 31, 2017.