An overview of the American Space Renaissance Act (part 2)
by Michael Listner
|The overall effect of the act’s Pioneering Doctrine is to refocus NASA’s mission from scientific discovery and exploration to development.|
Of note, the definition offered in the amended section 20103(3) does not appear to create or address the issue of a definition of where the atmosphere ends or where outer space begins, however; it would be judicious to amend this section to clarify that the definition of “space” in this chapter does not conflict with the international policy of the United States with regards to the delimitation of where outer space begins.10
Section 202(c) further directs the Administrator, consistent with the Pioneering Doctrine, to enter into an agreement with an independent entity outside of NASA to prepare a report that identifies:
Section 202(c) requires this report to be filed no later than one year after the Act’s authorization, for the Administrator to implement any of the report’s recommendations permitted by law no later than 30 days after the act’s authorization, and for Congress to consider legislation necessary to implement appropriate recommendations in the report no later than 90 days after receiving the report.12
The overall effect of the act’s Pioneering Doctrine is to refocus NASA’s mission from scientific discovery and exploration to development. This policy change might be supported by many in the space advocacy community, but the potential is high the scientific community would oppose the policy shift as it would take the emphasis away from outer space, Earth science missions, and funding for them. This will create a forceful lobbying effort by the scientific community and substantial political resistance from the Democrats on the House Science Committee, not to mention other special interests that benefit from the current policy.
Section 202(d) begins by amending 51 U.S.C. § 20111(a), which stipulates the establishment and appointment of the NASA Administrator. Specifically, it modifies the language of § 20111(a) to set the term of the NASA Administrator to five years and requires the President to nominate a successor to the position of Administrator from a list provided by the vacating Administrator and the NASA Leadership and Advising Commission, which is established by Section 202(d)(2) of the Act.13
Section 202(d) then stipulates the creation of the NASA Leadership and Advising Commission (the Commission).14 The required duties of the Commission are:
Section 202(d) specifies the Commission will consist of 21 members, including a Chairperson. Section 202(d) requires the members other than the Chairperson to be appointed four each by the President, the Speaker of the House of Representatives, the minority leader of the House of Representatives, the Senate majority leader, and the Senate minority leader.18 The Chairperson is required to be a former NASA Administrator or Deputy Administrator. The Chairperson will be selected by the other members of the Commission, unless it is not practicable or appropriate to do so. In that case, the other members of the Commission will appoint an appropriate alternative.19
|Noticeably lacking from the Commission is a representative of the commercial space industry.|
Members of the Commission are appointed for a five-year term.20 Four of the initial members of the Commission will serve staggered terms with, one of the initial members each serving two-, three-, four-, and five-year terms respectively.21 A member appointed to fill a vacancy before the expiration of the term of the member’s predecessor will only be appointed for the remainder of that term.22 A member whose term has expired may continue to serve until a successor has taken office; vacancies in the Commission will be filled in the same manner the original appointment was made.23 The membership of the Commission must consist of professionals in space and aerospace policy, engineering, technical, science, legal, and finance.24
Section 202(d) enumerates the powers of the Commission to:
Members of the Commission are not allowed additional compensation for their service.26 However, each member of the Commission is allowed travel expenses, including per diem in lieu of subsistence.27
The initial meeting of the Commission must take place no later than 30 days after a quorum has been appointed.28 A quorum consists of at least 11 members of the Commission.29 The Commission is required to meet not less than once per quarter; not less than 30 days after receipt of each long-term plan per Section 202(e)(4) of the Act, and at the call of the Chairperson.30 The Commission is authorized to appoint a director, a press secretary, and five additional staff members to support the Commission. Appointments are subject to appropriations made in advance.31
Noticeably lacking from the Commission is a representative of the commercial space industry. Considering the growing role of commercial actors in NASA activities, it would be reasonable to include a non-voting, non-compensated member to act as a liaison to the commercial space community. Consider the following amendment:
202(d)(2)(K) – Representative of the Commercial Space Industry
The Commission shall within 90 days of convening its first meeting consider and vote on a candidate from the commercial space industry to serve as a liaison to the Commission. The Representative shall have none of the required duties, powers or privileges of the Commission or its members and shall be granted observer status and other privileges at the discretion of the Commission. The Representative shall interact with and report to the Commission on the position of the commercial space industry with regard to matters of mutual interest to NASA and the industry, including how the commercial industry fits into NASA’s long-term plans under Section 202(e), and perform other duties as deemed appropriate by the Commission.
Section 202(e) requires the Administrator to develop a 10-year plan and a 20-year plan. The 20-year plan must outline broad goals starting with the year the 20-year is developed.32 The 10-year plan must provide specific objectives and budget profiles, which must be centered on broad goals outlined in the 20-year plan.33 The Administrator must present the most recent 10-year and 20-year plans to Congress and the NASA leadership and advising commission no later than one year after the act’s authorization and then every five years.34
This stipulation likely addresses criticism NASA is no longer focused and requires long-term goals in lieu of presentations and press releases that have been a substitute for NASA’s goals over the past decade. Depending on the political environment, long-term goals might either complement or contradict the National Space Policy. Considering each successor to the Executive Branch will have the opportunity to enact a National Space Policy, long-term plans under the act have the potential of creating political friction as they will overlap a new administration.
Section 202(f) requires the Administrator to submit a multi-year budget starting with fiscal year 2018 and for each subsequent fiscal year.35 Starting in fiscal year 2018, any appropriations of NASA will be no-year36 or multiyear, unless otherwise required by law.37 The act disallows the House of Representatives from considering any other appropriation for NASA that is not no-year or multi-year, unless the Chair of the House Committee on Science, Space and Technology files a statement to the effect one-year funding is suitable.38
Section 202(f) appropriates $250,000,000 for fiscal year 2017 to supplement spending for aeronautics and exploration programs, projects, or activities experiencing development challenges and for repair, maintenance, and upgrades of NASA infrastructure. Section 202(f) makes available necessary funding for each subsequent fiscal year so that the amount is $250,000,000 for these areas.39
Cost overruns in NASA programs are a frequent occurrence and the focus of concern and much media attention. Section 202(g) takes on the issue of cost overruns by creating accountability for NASA programs that overrun their cost projections.40 Section 202(g) stipulates accountability for programs that exceed their life-cycle cost projections by at least 15 percent, but less than 30 percent:
Section 202(g) requires any program that exceeds 30 percent to be cancelled with no additional funds being expended except for termination costs. Congress may authorize continuation of the program no later than six months after the end of the first fiscal year in which the program began to exceed the 30-percent limit.42
Section 202(g) also requires the NASA Inspector General to submit a report recommending a mechanism for the automatic removal of an Administrator who has failed to reach certain goals no later than six months after the Act is authorized. Such a mechanism would take into account:
The mechanism for automatic removal of the Administrator must be implemented no later than 60 days after the receipt of the report.
|Section 202(i) brings another level of culpability to commercial launch providers that would be found in private contracts and represents a positive step to integrate true commercial space and the subsequent private liability into the scheme of US government launch services.|
There is a question whether the mechanism sought in Section 202(g) would pass constitutional muster, as the factors in Section 202(g) would not reach an impeachable offense per Article II, Section 4 of the Constitution.44 There is also an argument that an automatic removal mechanism mandated in Section 202(g) would violate the Administrator’s right to due process and specifically procedural due process under the 14th Amendment of the Constitution, which could lead a federal court to find Section 202(g) unconstitutional if it was challenged.45 An alternative would be to amend Section 202(g) to require a hearing before the House Committee of Science, Space and Technology and the Senate Committee on Commerce, Science, and Transportation to consider the Administrator’s removal. This would satisfy the due process requirement of the 14th Amendment.
Section 202(h) requires NASA to transition technology and capabilities to corporations, individuals, academic institutions, and non-profit organizations when it is practicable, appropriate, and does not threaten national security. Section 202(h) stipulates intellectual property rights will not be infringed upon by these transfers.46
Section 202(i) amends 51 U.S.C. § 20138 –Insurance and Indemnification by adding section 20138(g).47 The new section requires commercial providers of launch services under the NASA Launch Services Program to obtain liability insurance or demonstrate financial responsibility sufficient to compensate for a maximum probable loss48 from third-party claims for death, bodily injury, property damage, or loss from a launch or reentry and claims by a federal, state, or local government for damage.49 A contractor under the NASA Launch Services Program is required to obtain insurance related to one launch and reentry in the amount of at least $500,000,000 for claims involving a third party and $100,000,000 for claims involving damage to local, state or Federal governments.50
Section 202(i)(1) extends the subject matter of the federal court and requires any claim by a third party for death, bodily injury, or property damage or loss under a contract with the NASA Launch Services Program to be filed in federal district court. This extension of the federal court’s subject matter jurisdiction is similar in scope to the law granting the federal district court exclusive jurisdiction over similar claims arising out of commercial launch/reentry license issued by the FAA per 51 U.S.C. § 50914(g).51
Section 202(i) is likely motivated in part by the explosion of an Antares rocket and the resulting damage to the launch facilities at Wallops Island in Virginia on October 28, 2014, and the subsequent dispute about financial liability to repair the damage. It is also dissimilar to state-limited liability laws in that it appears commercial space launch providers would not limited immunity for death or bodily injury incurred under the NASA Launch Services Program. This is a positive development in that Section 202(i) brings another level of culpability to commercial launch providers that would be found in private contracts and represents a positive step to integrate true commercial space and the subsequent private liability into the scheme of US government launch services.
Whereas Section 202 of the Act creates a fundamental policy shift in NASA’s priorities, oversight and its funding, Section 203 takes a step further and specifically addresses one of the more controversial aspects of NASA: a human mission to Mars. The bearing of NASA towards a human mission to Mars over the past decade has been lackadaisical and otherwise used as a talking point for public relations and favorable political optics without a concerted effort to fulfill that aspiration.
Section 203(a) directly addresses a human mission to Mars and articulates a policy stance, noting in its findings that NASA continues to act contrary to a study and report by the National Research Council that, in part, called for Mars to be a “horizon goal” for human exploration.52 Specifically, the act concludes:
In light of these findings, the Act takes the following policy stance in Section 203(b):
In support of this policy direction, Section 203 stipulates the following:
To facilitate a human mission to Mars, Section 203(f) of the act requires strategic planning from NASA via the long-term planning provisions in Section 202(e). Specifically, Section 203(f) requires the NASA to designate under its first 20-year plan a five-year period when it intends to for American astronauts to land on Mars, and update this range when in any successive 20-year plans before a landing occurs.58
|If the goal of landing humans on Mars is a target, Section 203 is a proactive policy step for not only that, but also to cease the procrastination and gapfiller programs that have epitomized NASA’s existence for the past decade.|
Section 203(f) also instructs NASA to address the concerns raised in the National Research Council Report to include concerns directed at budget projections, launch frequency of the Space Launch System, and the value of the Asteroid Redirect Mission.59 With respect to the Asteroid Redirect Mission, Section 203(f) calls for its cancellation, unless NASA can persuasively demonstrate the usefulness of the mission.60 Section 203(f) also requires NASA to explain how it intends to avoid missions that lead to dead-end technologies, and explain what approach it will take to look at all options to maximize early launches of SLS.61 Finally, Section 203(f) requires each 10-year and 20-year plan to specify how NASA proposes to expand a permanent human presence beyond LEO.62
The approach Section 203 takes is bold considering NASA’s marking-time approach to a human mission to Mars, and is consistent with the Pioneering Doctrine outlined in Section 202. However, an undertaking of this magnitude needs the political support of the Executive Branch and the National Space Policy to harmonize a human mission to Mars as a stated goal and not just political fiat. Otherwise, competing political interests will continue to undermine each other, with NASA being pulled in opposing directions and little or no tangible benefit for the money spent, much in the same way SLS is currently playing out.
Irrespective of the political factor, there also needs to be agreement on the architecture of the mission, and while the Act lays a good foundation to direct NASA down that path, NASA needs to flesh out the details of the how and when of a human mission to include whether a such a mission would benefit as a public-private partnership. Surely, there are competing views and staunch commercial space advocates will decry the intent of Section 203. Nonetheless, if the goal of landing humans on Mars is a target, Section 203 is a proactive policy step for not only landing humans on Mars, but also to cease the procrastination and gapfiller programs that have epitomized NASA’s existence for the past decade.
Section 204 takes the position the United States should maintain a continuous human presence in LEO and activities involving the transport of crew, LEO development, and on-orbit facilities to house government astronauts63 and science experiments should be relegated to the commercial sector to the great extent practicable.64
Section 204(b) requires NASA to prepare a plan to address the remaining life of the International Space Station (ISS), which must be included in the first and subsequent 10-year plans mandated per Section 202(e)(1).65 The plan must:
Section 204(b) postures that ISS should be fully funded per the President’s annual budget for the remainder of its needed life.67 When commercial habitats become available, which meet NASA’s published requirements and upon the completion of a successful demonstration,68 NASA must implement the transition strategy required by Section 204(b)(1)(D).69
Section 204(c) gives a nod to commercial habitat providers like Bigelow Aerospace and addresses NASA’s use of commercial habitats post-ISS. Section 204(c) requires NASA and the Commercial Space Transportation Advisory Committee (COMSTAC) to develop and publish necessary requirements for on-orbit habitats to meet NASA’s human exploration and science missions.70 Section 204(c) further requires NASA to establish, no later than December 31, 2018, a Commercial Habitat Pilot Program that meets NASA’s requirements per Section 204(c)(1) to demonstrate the feasibility of using commercially-built on-orbit habitats. Under the pilot program, NASA is required to enter into at least one competitively-bid agreement with a commercial provider to demonstrate the viability and capabilities of commercial LEO platforms. A commercial entity entering into an agreement with NASA would be required to fund the development and the construction of the demonstration platform.71
Significantly, this is the antithesis of programs like Commercial Crew, where the government is subsidizing the development of a commercial launch capability that NASA will eventually contract to use. This puts the onus on private industry to finance the development and construction costs of a prototype. It may provide an impetus for the financial sector to become involved and may lead to partnerships in the industry, especially if the end result is government contracts for the orbital platforms. The downside is this approach will limit the entrants to some of the major players, such as Bigelow Aerospace, Lockheed Martin, and Boeing.
|Section 205 provides a much-needed domestic focus of the orbital space debris issue to emphasize remediation.|
In the event a private entity successful funds the development and construction of an orbital platform, Section 204(c) requires NASA to enter an agreement with that entity where NASA must provide the launch through the Commercial Resupply Services Program and include a contingent contract that allows NASA to utilize at least 50 percent of the orbital platform for an initial three-year period.72 Section 204(c) is silent on what happens if a private entity cannot fund the development and fabrication of a prototype orbital habitat, and whether NASA would be authorized to use discretionary funds to facilitate development and construction in that case.
Section 204(d) requires NASA to continue to utilize partnerships with commercial entities for re-supply and transportation of government astronauts for the duration of US presence in LEO.73 Section 204(d) takes the position NASA should continue to request budget levels necessary for the commercial crew and cargo programs, and Congress should continue to appropriate the necessary funds and provide rigorous oversight to keep the programs on track and on budget.74
Section 204(e) provides a reciprocal mandate to the one found in Title I, Section 106(a) of the act, whereby NASA must consider any bid after December 31, 202275 that proposes to use an engine built in the United States as 25 percent less than the total cost of the bid.76 Similar to the reciprocal requirement in Title I, Section 106(a), the ambiguity of the application of this political calculus potentially leaves bids open to challenge in the Federal Court of Claims and otherwise moot as all US-domiciled vehicles will likely use US-built engines by 2023. Section 204(e) also encourages NASA to utilize international partnerships to the extent they are not prohibited by law, and to continue to enter into Space Act Agreements and other mechanisms to partner with the commercial space providers.77
Section 205(a) recognizes the growing hazard orbital space debris poses to safety and cost-effectiveness of future civil, commercial and national security space activities, and that the United States does not have a coherent plan to develop remediation capabilities.78 Section 205 requires the Administrator to cooperate with NOAA, DoD, and the FAA to submit a report to Congress within one year of the date of the act’s authorization, which will report on the feasibility of orbital space debris remediation.79 The report must provide the following:
Section 205 provides a much-needed domestic focus of the orbital space debris issue to emphasize remediation. Nonetheless, Section 205 should also require the Department of State to join with the other agencies to collaborate in the mandated report because the issue of orbital space debris remediation will involve international law, including the obligations of the United States under the Outer Space Treaty, and will have international geopolitical ramifications. These areas are the prerogative of Foggy Bottom and their diplomatic and legal resources.
Additionally, the mandated report under Section 205(b) should also include the following:
Section 206 requires the Comptroller General to submit a report to the House Committee on Science, Space and Technology and the Senate Committee on Commerce, Science and Transportation no later than one-year after the authorization of the Act, which will report of the viability of NASA insuring its Class C and Class D81 payloads and cargo.82 The required report must include:
Section 206 is likely in part a response to the loss of cargo on two commercial cargo missions in 2014 and 2015. Addressing the issue of insuring cargo is a natural progression to commercial space involvement as the commercial space model becomes dominant in transporting government medium- to low-priority payloads.
Title II of the American Space Renaissance Act takes a proactive step to bring purpose and direction to NASA in a time when it appears to be meandering from project to project with no definitive objectives. Title II looks to restore accountability to NASA’s programs in an atmosphere that otherwise labels NASA’s efforts as a job program. Title II recognizes NASA does indeed have a place in the era of commercial space and that the future is not necessarily one of private space acting alone but instead a symbiotic correlation between civil and commercial space. That being said, the provisions of Title II will find resistance in the political sphere, the science lobby, and the space advocacy community. Notwithstanding, the steps proposed by Title II present an earnest effort to revitalize NASA to create a long-term outlook instead of frequent public relations presentations.