Space Policy, Funding Legislation Still on the Congressional To-Do List

The 115th Congress will draw to a close in about eight weeks.  Congress is currently scheduled to be in session for roughly half that time, just four weeks.  Many pieces of legislation, including several significant space funding and policy bills, are still awaiting action in the House, Senate, or both.  Those that do not get enacted before the 116th Congress gavels into session will have to go back to the starting gate.

Under the Constitution, a new Congress begins at noon ET on January 3 of every other year.  Congress can decide to move the date, especially if January 3 falls on a weekend, but it is usually only by a few days. January 3, 2019 is a Thursday.  If they keep that date, the 115th Congress will end at 11:59 am ET that day.

Any legislation not enacted by then will die.  It could be reintroduced in the 116th Congress, but the legislative process would begin anew.  Because party control  will switch to the Democrats in the House, the leadership of all committees and subcommittees in the House will change.  That could impact the prospect for any legislation that has not cleared the 115th Congress.

Thus, there may be an effort to reach compromises and get it all done in the short time remaining.  Here are key pieces of space-related legislation still on the table.

Appropriations for NASA and NOAA

The FY2019 Commerce-Justice-Science (CJS) appropriations bill, which funds NASA and NOAA, was approved by the House and Senate Appropriations Committees, but neither chamber has voted on those bills.  The Senate Appropriations Committee is chaired by a strong supporter of NASA’s human spaceflight program, Sen. Richard Shelby (R-AL), who previously chaired the Senate CJS subcommittee and is particularly well known for adding money for the Space Launch System (SLS) being built in his state.  The Senate will remain in Repubican hands and he is expected to continue as committee chair.

His House CJS counterpart is another strong NASA supporter, Rep. John Culberson (R-TX).  Culberson, however, lost his reelection bid.  Completing action on the FY2019 bill before he leaves Congress likely will be a priority for him, at least.

Culberson is best known for his determination to send two spacecraft, an orbiter and a lander, to investigate Jupiter’s moon Europa.  Some scientists, and Culberson, believe microbial life may exist in the ocean thought to lie under Europa’s icy crust.  NASA had no plans to build Europa probes before Culberson became chair of the CJS subcommittee, but he directed NASA to do so, to launch them in specific years (2022 and 2024, respectively) and on a specific launch vehicle (SLS). Culberson is unique in Congress in his passion for exploring Europa so the future of those probes is iffy once he is gone especially since NASA’s science budget will be under increasing strain as it pays for cost overruns on the James Webb Space Telescope.

More generally,  Culberson and Shelby have added substantial money to NASA’s budget above requests from both President Obama and President Trump.  This was enabled in part by decisions to waive budget caps set by the 2011 Budget Control Act (BCA), thus making more money available to be spent. The BCA caps have been relaxed two-years-at-a-time since sequestration went into effect the first and only time in FY2013.  The consequences were so grave Congress has not been willing to do it again.  The most recent budget deal, struck earlier this year, waived them for FY2018 and FY2019, but they go back into effect for FY2020 and beyond.

That may be another factor puting pressure on the House and Senate to complete FY2019 appropriations before the end of this Congress, although the political dynamics are not yet clear.  They could instead decide to pass another CR and delay final decisions until newly elected Members and Senators are sworn in and the Democrats are in control of the House.

If it slips to next year, Rep. José Serrano (D-NY), the top Democrat on the House CJS committee, may well become chairman, although committee and subcommittee assignments have not been made yet.  He has been quite supportive of NASA and NOAA, but it is not clear if he sees them as priorities compared to other activities funded in the CJS bill, like community policing at the Department of Justice or execution of the 2020 Census in the Department of Commerce.

As it stands now, for FY2019 the House Appropriations Committee approved $21.546 billion for NASA, an increase of $1.654 billion above President Trump’s request and $810 million more than FY2018.  The Senate Appropriations Committee approved $21.323 billion, an increase of $1.431 billion above the President’s request and $587 million more than FY2018.  [Learn more in our NASA budget fact sheet on our Fact Sheets page.]  Although typically the final appropriations amount is be a compromise between House and Senate figures, for both FY2017 and FY2018, the final number for NASA was greater than either committee recommended.

NOAA’s satellite-related budget has been much less controversial in recent years now that its two biggest programs, GOES-R and JPSS, have passed their peak funding.  Differences still remain on future polar-orbiting weather satellites, however. The Trump Administration wants to merge the remainder of the JPSS program (which pays for JPSS-1 and -2) with the Polar Follow On (PFO) program that funds JPSS-3 and -4.  The House committee disagreed with combining them,  but approved the requested amounts.  The Senate committee agreed to merge them, but added $50 million.  The Senate committee also added $37.4 million to Cooperative Data/Rescue Services without explanation, following similar action in FY2018.  All in all, the House committee approved $1.412 billion for NOAA’s satellite program while the Senate committee recommended $1.498 billion.  [Learn more in our NOAA budget fact sheet on our Fact Sheet page.]

Five of the 12 regular appropriations bills have been enacted and four more are in conference.  That leaves just three — CJS, Homeland Security, and State-Foreign Ops — that have not passed either the House or Senate.  It is entirely possible they will be combined into a single bill that will have to transcend remaining hurdles jointly, including the controversial funding for President Trump’s border wall in the Homeland Security bill.  They also might be combined with the four bills in conference.  It is too early to tell, but Congress will have to act before midnight December 7 or NASA and the other agencies under the CR will have to cease all but essential operations.

Commercial Space Regulation, Space Traffic Management, NASA Authorization, Future of ISS

Pending legislation would reauthorize NASA and address President Trump’s three Space Policy Directives (SPDs) affecting the future of the human spaceflight program (SPD-1), updating and expanding regulatory authorities for commercial space activities (SPD-2), and transferring responsibility for space situational awareness (SSA)/space traffic management (STM) for non-military users to a civilian agency (SPD-3).

Three House bills have been approved by the House Science, Space, and Technology (SS&T) committee, one of which has passed the House, that take the topics one at a time.  One Senate bill has been approved by the Senate Commerce, Science, and Transportation Committee that addresses some of these areas.  All the bills cover myriad topics, but the key issues are as follows.

• House NASA Authorization for FY2018-2019 (H.R. 5503), approved by House Science, Space, and Technology (SS&T) Committee April 17, 2018.  Broad NASA reauthorization for all agency activities, including human spaceflight, the subject of SPD-1.
• House American Space Commercialization Free Enterprise Act (H.R. 2809), passed House April 24, 2018.  Reforms commercial remote sensing regulations, assigns responsibility for regulation of new, non-traditional space activities to Department of Commerce (DOC), as in SPD-2.
• House American Space SAFE Management Act (H.R. 6226), approved by House SS&T Committee June 27, 2018.  Assigns responsibility for civil SSA/STM to DOC as in SPD-3.
• Senate Space Frontier Act (S. 3277), approved by Senate Commerce, Science & Transportation Committee August 1, 2018.  Reforms commercial remote sensing regulations, allows FAA to continue using enhanced payload review for new, non-traditional space activities (instead of DOC as in the House bill and SPD-2), continues government funding of the International Space Station (ISS) through 2030 (instead of ending it in 2025 as proposed by the Trump Administration).

The House NASA authorization act passed the committee with bipartisan support, but only after Republicans agreed to restore funding they wanted to cut from NASA’s Earth science program.  Rep. Eddie Bernice Johnson (D-TX), the top Democrat on the committee who likely will be the new chair, strongly objected to the cuts to Earth science and a last minute compromise was reached during the markup.  The bill has not progressed further, however.

Johnson and other Democrats also raised objections to H.R. 2809 and H.R. 6226, but were not successful in making changes.  As called for in SPD-2 and SPD-3, those bills would assign DOC the lead role in regulating non-traditional space activities and civil SSA/STM instead of the Federal Aviation Administration (FAA), which already regulates commercial space launches and reentries.  Democrats opposed those provisions in H.R. 2809 during committee markup, but agreed to pass the bill on the floor with cautionary remarks from Space Subcommittee Ranking Member Ami Bera (D-CA) and Rep. Ed Perlmutter (D-CO) that they would seek improvements as the bill progresses through the legislative process.

Both of them broke ranks with Johnson during markup of H.R. 6226, however, siding with Republicans on assigning SSA/STM to DOC. Johnson argued that it was too early to make a decision and wanted a study by the National Academies of Sciences, Engineering and Medicine, but her amendment was defeated 13-17 when Bera and Perlmutter voted with the Republicans.  The bill has not gone to the floor for a vote yet.

With regard to the DOC versus FAA issue, the Senate bill is closer to Johnson’s point of view. It allows the FAA to continue using its enhanced payload review process to approve or disapprove non-traditional space activities.  It does not deal with SSA/STM.  The Senate bill also addresses the future of the International Space Station (ISS).  The Trump Administration wants to end direct government funding for ISS in 2025 and transition to an era of private sector space stations for which NASA is only one of many customers.  The Senate bill instead would require government support of ISS through 2030.  The House NASA authorization bill, by contrast, approves initial implementation of NASA’s ISS transition plan, although Rep. Brian Babin (R-TX) later introduced a stand-alone bill (H.R. 6910) that would continue government support for ISS through 2030 or until a sustainable lower cost alternative is demonstrated.  The bill has not been acted upon yet.

It is possible that all the stakeholders will find a way to reach a compromise on some or all of these issues, perhaps combined into a single bill, before the end of the 115th Congress.  There are topics on which there is broad agreement, such as the need to reform commercial remote sensing regulations. They already are regulated by DOC and have been controversial for years because licensing can take a very long time.  At a September 21 space law symposium in Washington, D.C. sponsored by the University of Nebraska College of Law, private sector representatives stressed the importance of getting some sort of legislation enacted before year’s end reflecting whatever agreement can be reached.  Mike Gold of Maxar Technologies, of which DigitalGlobe is part, urged that perfect not become the enemy of good enough: the “worst case scenario is to do nothing.” Peter Marquez, formerly with Planetary Resources and now a consultant, agreed that “not doing anything is the worst possible outcome.”

Sen. Bill Nelson (D-FL) is a key participant in these deliberations.  His Senate seat remains in limbo as a recount is underway to determine whether he or Governor Rick Scott won the election.

Space Weather Legislation

Space weather legislation is also awaiting final action.  The Senate passed S. 141 last year.  The House SS&T Committee waited a year to hold a hearing and approved an amended version of the bill this summer, but there has been no action since.  The legislation focuses on roles and responsibilities of various government agencies and does not recommend funding levels.

• Space Weather Research and Forecasting Act (S. 141), passed Senate May 2, 2017; approved by House SS&T Committee (amended) July 25, 2018

Johnson also objected to this bill both in terms of substance and the process by which it was brought before the committee.  Perlmutter again broke with her.  He had introduced a bill very similar to S. 141, but agreed to amend it substantially so it could pass the committee.  Johnson introduced his original bill (H.R. 3806) as a substitute for the version being considered by the committee, but it was voted down.  Perlmutter conceded that he was voting against his own bill, but it was a “reality” that the new text was needed in order to advance the legislation.  The version adopted by the House committee has a strong focus on the private sector, assigns the government coordinating role to the National Space Council instead of the Office of Science and Technology Policy (OSTP), and has other differences with the Senate-passed bill.

Whether the two chambers can reach a compromise in the next few weeks is an open question.

Nominations

Several nominations remain pending in the Senate.

• Barry Lee Myers to be Under Secretary of Commerce for Oceans and Atmosphere and Administrator of NOAA
• Kelvin Droegemeier to be Director of the Office of Science and Technology Policy (OSTP)
• Kimberly Reed to be President of the Export-Import Bank
• Spencer Bachus III, Judith Delzoppo Pryor, and Claudia Slacik to be members of the Board of Directors of the Export-Import Bank
• Mark Greenblatt to be Inspector General of the Export-Import Bank