A bill introduced Thursday by two members of the House Science Committee seeks to promote commercial asteroid ventures, including securing property rights for resources extracted from asteroids by American companies.
The American Space Technology for Exploring Resource Opportunities in Deep Space (ASTEROIDS) Act of 2014, HR 5063, was introduced Thursday by Reps. Bill Posey (R-FL) and Derek Kilmer (D-WA), members of the House Science Committee. The relatively short bill (about four and a half pages in the copy provided by Posey’s office late Thursday, since the bill is not yet posted on Congress.gov) would direct the president, through the FAA and other agencies, to “facilitate the commercial exploration and utilization of asteroid resources to meet national needs,” “discourage government barriers” to asteroid resources ventures, and promote the right of American companies involved in those activities to both explore and utilize asteroids as well as transfer and sell them.
Perhaps most importantly, the bill provides property rights to resources extracted by those companies: “Any resources obtained in outer space from an asteroid are the property of the entity that obtained such resources, which shall be entitled to all property rights thereto, consistent with applicable provisions of Federal law.” The bill does not extend those property rights beyond the resources a company extracted, such as a claim of property on the asteroid, or of an asteroid itself. The bill also provides for freedom from harmful interference, noting that “any assertion of superior right to execute specific commercial asteroid resource utilization activities in outer space shall prevail if it is found to be first in time,” at least among companies subject to US law.
“Asteroids are excellent potential sources of highly valuable resources and minerals,” said Posey in a press release announcing the bill. “Our legislation will help promote private exploration and protect commercial rights as these endeavors move forward.”
“We may be many years away from successfully mining an asteroid, but the research to turn this from science fiction into reality is being done today,” said Kilmer in the same release. “Businesses in Washington state and elsewhere are investing in this opportunity, but in order to grow and create more jobs they need greater certainty.” That’s a reference to Planetary Resources, a company headquartered in the Seattle area (although not in Kilmer’s district) that has long-term plans to mine asteroids.
Getting the bill passed, though, is no certain feat. Besides drumming up support for the bill in both the House and the Senate, the bill’s advocates have to deal with a tight legislative schedule the rest of this year: the House is scheduled to be in session for only ten weeks for the rest of the calendar year.
The White House has withdrawn the nomination of NASA’s current chief financial officer (CFO) to a position at the Energy Department. In a press release Wednesday, The White House said it was withdrawing Beth Robinson’s nomination to be Under Secretary of Energy, nearly a year after first announcing the nomination.
No reason was given for the withdrawal, but her nomination faced opposition from one senator because of her tenure as NASA’s CFO. Last October, Sen. David Vitter (R-LA) announced he had placed a hold on her nomination because of concerns he had about withholding of funding for some key NASA projects, like the Space Launch System (parts of which are being built at the Michoud Assembly Facility in New Orleans) to comply with the agency’s interpretation of termination liability requirements. In his letter to Robinson, which he released last October when he announced the hold, he also sought information on alleged use of personal email accounts by NASA officials to conduct agency business.
A rare joint hearing of subcommittees of the Senate Armed Services Committee and Senate Commerce Committee will examine American reliance on a Russian-manufactured rocket engine and other space access issues next week. The hearing, by Armed Services’ strategic forces subcommittee and Commerce’s space subcommittee, is scheduled for Wednesday, July 16, at 9:30 am. The Commerce Committee titled the hearing “Options for Assuring Domestic Space Access” and the Armed Services Committee calls it “Testimony on Assured Access to Space”; it will take place in Room 216 of the Hart Senate Office Building.
According to the Commerce Committee’s description of the hearing, it will “will consider the current state of the U.S. launch enterprise and the risks posed to U.S. space operations by relying on the Russian RD-180 rocket engine.” Also on tap is an examination of “civil, commercial, and national security launch requirements, as well as the potential cost and schedule implications of developing launch systems.”
The joint hearing will feature seven witnesses in two separate panels from government, academia, and companies, although noticeably absent are representatives of any launch providers, such as SpaceX or United Launch Alliance. The lineup:
Witness Panel 1
The Honorable Alan F. Estevez
Principle Deputy Under Secretary of Defense for Acquisition, Technology and Logistics
General William L. Shelton
Air Force Space Command
Mr. Robert M. Lightfoot Jr.
National Aeronautics and Space Administration
Witness Panel 2
Major General Howard J. Mitchell
USAF (Ret.), Vice President, Program Assessments
The Aerospace Corporation
Mr. Daniel L. Dumbacher
Professor of Practice
Department of Aeronautics and Aerospace Engineering, Purdue University
Dr. Yool Kim
Ms. Cristina Chaplain
Director, Acquisition and Sourcing Management
U.S. Government Accountability Office
United Launch Alliance (ULA) has formally joined the Air Force’s call for the Court of Federal Claims to dismiss SpaceX’s protest of the Evolved Expendable Launch Vehicle (EELV) block buy contract. As first reported by Space News yesterday, ULA, in its role as “defendant-intervenor” in SpaceX’s suit against the Air Force, filed a motion to dismiss the suit. (The document was released on Tuesday, although it is a redacted version of the original, sealed motion filed with the court on July 2.)
ULA’s arguments for dismissal mirror those in the Air Force’s motion filed with the court early last week. SpaceX, ULA claims, lacks standing since it is not an “interested party” in the case since it is not yet certified by the Air Force to perform launches and thus isn’t an “actual or prospective bidder” for the EELV contract. ULA also argues that SpaceX was nearly two years later in filing its protest and thus “has plainly waived any right to protest the Air Force’s acquisition strategy and terms of the sole-source requirements contract.”
“To allow this untimely bid protest to continue any further would broadly and improperly expand this Court’s jurisdiction to parties who are not capable of performing the work until several years after an RFP has [been] issued and contract work long begun, and who had never even submitted a proposal or filed a formal protest prior to the proposal submission deadline,” ULA argues. “The Court should reject SpaceX’s attempt to rewrite the Court’s well-settled decisions regarding interested party status and timeliness of protests.”
An engineer working on NASA’s Space Launch System program will appear on the ballot as an independent in November’s general election against Rep. Mo Brooks (R-AL). In a Facebook post yesterday, Mark Bray said the Alabama secretary of state certified the petitions his campaign submitted to appear on the ballot in the November general election for the state’s 5th Congressional district, which includes the city of Huntsville and NASA’s Marshall Space Flight Center.
Bray, who works for Jacobs Engineering on the SLS program, announced his plans to run for the seat in February as an independent. Brooks easily won the Republican primary for the district last month and faces no Democratic opposition. While the seat remains “Solid Republican” in the latest Cook Political Report, Bray tells the Huntsville Times he is buoyed by Rep. Eric Cantor’s upset loss in the Republican primary in Virginia last month. “The message was clearly sent that if you are an incumbent with a large pot of money, you shouldn’t discount contenders,” Bray told the newspaper.
The Commerce, Justice, and Science (CJS) appropriations bill remains in the Senate, after action on the bill stalled out on the Senate floor two weeks ago due to matters unrelated to NASA. The earliest debate on the bill could resume is early next week, although it’s unclear exactly when they’ll take up the bill again.
The absence of action, though, has not meant an absence of commentary about the bill, in particular a provision in report language accompanying the bill requiring “certified cost and pricing data” from companies receiving commercial crew and cargo contracts from NASA. As floor debate on the bill began two weeks ago, Sen. Richard Shelby (R-AL), who requested that provision, defended it by arguing that it ensures “the price NASA has agreed to pay for vehicle development matches actual development expenditures.” Many in the commercial spaceflight industry, and advocates of that industry, opposed the language, arguing it would drive up costs.
In an op-ed in Space News this week, Eric Sterner of the Marshall Institute argues that, at first look, it makes sense to apply those cost requirements to the commercial crew program, since it is primarily funded by the government, which will also be the primary customer of those services. “Despite constant rhetoric to the contrary, there is nothing ‘commercial’ about the commercial crew program,” he writes.
Yet, he notes that such pricing data is not required for NASA’s existing contracts for crew transportation services from Russia, which “means is that the need for FAR-compliant cost and pricing data is not absolute, required above all other things.” The need to expedite development of commercial crew systems to end reliance on Russia and maximize their use over the remainder of the International Space Station’s lifetime calls for approaches that minimize the bureaucratic red tape associated with conventional contracting approaches, he argues, among other reasons. “When it comes to human spaceflight in the United States, NASA cannot pursue ‘business as usual’ approaches. It lacks funding and time for a traditional procurement or development program.”
Meanwhile, the Houston Chronicle takes a different, and more Texas-centric, approach to its criticism of Shelby’s report language in an editorial Tuesday. Shelby, the paper argues, “wants to drag companies like SpaceX back to Earth and force them to comply with NASA’s usual regulatory paperwork. This idea threatens to kill the goose that could lay the golden egg,” adding that Shelby is perhaps motivated to protect the Marshall Space Flight Center in his state.
“As fans of the Johnson Space Center, we can sympathize with Shelby’s desire to protect his constituents’ jobs against a perceived competitor. But Shelby’s policy is misguided,” the editorial continues. The editorial concludes by asking Texas’s two senators to fight back: “Texas’ own senators should go to bat for SpaceX and ensure that its multimillion dollar investment outside Brownsville doesn’t get tied up in Shelby’s red tape. Shelby is fighting for his state. Where are the Texans fighting for Texas?” The Brownsville reference is to the likely site of a future SpaceX commercial launch site, although it’s unlikely that facility will be used for commercial crew or cargo missions to the ISS.
In a motion filed with the Court of Federal Claims this week, the Air Force seeks to dismiss SpaceX’s lawsuit against it protesting the Evolved Expendable Launch Vehicle (EELV) block buy contract the service awarded to United Launch Alliance (ULA), arguing that SpaceX missed its chance to protest the award by two years.
“SpaceX’s complaint is amorphous,” the Air Force motion, filed with the court on Monday, states. “Rather than challenge a single procurement action, SpaceX broadly protests any sole-source purchase of single-core evolved expendable launch vehicles (EELV) and associated launch services.” [emphasis in original] The Air Force argues that the court should narrow the scope of SpaceX’s protest to the latest block buy award.
And, the Air Force goes on to argue, SpaceX should have filed that protest not in late April, but instead back in 2012, when the Air Force issued a request for proposals for what became the block buy contract formally awarded in December 2013. “SpaceX knew about the agency’s intent to award a sole-source contract to ULS, and received a copy of the RFP less than a month after it was issued. Yet SpaceX failed to object—or to indicate that it too could compete for the eventual contract,” the Air Force stated. “Although SpaceX may have ongoing concerns regarding the EELV program that it wishes to explore, SpaceX’s own failure to timely object to the RFP means that it does not have standing to bring those complaints to this Court by challenging what it calls the ‘block buy’ contract.”
The motion then goes to lay out that argument in greater detail, setting out a timeline of events involved in the Air Force’s block buy contract with ULA and the opportunities SpaceX previously had to protest the award, dating back to a “justification and approval” (J&A) the Air Force published through the Federal Business Opportunities website in January 2012. “SpaceX did not protest the J&A at the time it was issued,” the Air Force’s motion states. “Nor did SpaceX protest the J&A at any other point in the two years before it commenced this action.” [emphasis in original]
The Air Force agues that SpaceX lacks standing to protest since it was not an “interested party” to the EELV block buy contract: it was not an “actual or prospective bidder” as defined by law, as it did not object to the original RFP in 2012 or submit a “capability statement” in response to it. “Of course, the reason that SpaceX did not submit such a capability statement—or for that matter, the reason that it did not protest—is obvious,” the Air Force argues. “Simply put, at the time that the Air Force issued the RFP, SpaceX would not have been a qualified bidder” as its Falcon 9 rocket had not been certified by the Air Force.
Although SpaceX has since completed the three successful flights of its Falcon 9 v1.1 that are a key, but not sole, part of the certification process, the company does not have standing now to protest the contract and reopen the procurement, the Air Force claims. “Rather, only now that SpaceX believes it can compete does it raise—for the very first time—an argument that implicates the solicitation’s terms. This tactic is explicitly barred.”
The suit has seen little progress since SpaceX filed it in late April, particularly after the court issued at the end of April—and lifted about a week later—an injunction on purchases of RD-180 engines that was tangential to the case itself. SpaceX must reply to the Air Force motion to dismiss by the end of this month.
The mid-May publication of the “draft final” export control rule for satellites and related components largely brought the saga of export control reform to an end, with the exception of a few loose ends, such as aperture limits for remote sensing systems. The administration’s decision was a major, but not complete, victory for the space industry. One area where they sought but did not win change was in human spaceflight: crewed vehicles, both suborbital and orbital, will remain on the US Munitions List (USML) and thus under the jurisdiction of the International Traffic in Arms Regulations (ITAR).
“Spacecraft specially designed for human space flight that have integrated propulsion present another security concern, for such capabilities may be used for the purposes of weapons targeting from space,” the State Department noted in its final ruling. “So, although these technologies and capabilities are used in commercial endeavors, they continue to merit control on the USML.”
While the State Department appears to have no immediate plans to revisit this decision, the organization representing many developers of such spacecraft is keeping the agency aware of the issue. “As commercial space companies continue to test and develop their vehicles, it is vital to have an export control regime that will not illegitimately inhibit the potential of this growing industry,” wrote the Commercial Spaceflight Federation (CSF) in a June 27 letter, signed by CSF president Michael Lopez-Alegria, to the Directorate of Defense Trade Controls in the State Department. “Steps should be taken to further investigate how to modernize the USML to appropriately move these vehicles to the Commerce Control List (CCL).”
The CSF notes in the letter that the State Department had not formally requested comment on its decision to retain human spaceflight vehicles on the USML, it says it plans to “submit further detailed comments to the State Department along with our submission to the Department of Commerce in response to their request for comments on the continued application of USML controls to commercial space launch vehicles and human spaceflight.”
The letter comes during a time of transition for the CSF. As Space News reported last week, executive director Alex Saltman stepped down last week, a move planned long ago as he is heading to California with his family; he will stay on with the CSF in the role of senior advisor. Lopez-Alegria is also planning to leave the CSF by the end of the year.
While there have been no major developments in the legal, political, and public relations battles among SpaceX, United Launch Alliance (ULA), and the Air Force regarding competition for Evolved Expendable Launch Vehicle (EELV) class launches, the two companies traded jabs on Thursday in the form of court filings and advertisements.
A spokesperson for SpaceX said Thursday that the company filed a motion with the Court of Federal Claims on Wednesday regarding its suit against the Air Force, seeking to amend their original complaint. The amendment deals with allegations of inflated prices for RD-180 engines raised by Sen. John McCain (R-AZ) in a statement last Friday.
SpaceX argues, in its motion, that McCain’s statement shows that ULA and the Air Force failed to provide and certify EELV costs before the Air Force awarded a “block buy” EELV contract to the company in late 2013. “Had ULA complied with its legal obligation to provide certified cost and pricing data for the RD-180 engines and other rocket component parts, it would have been forced to confront the fact that at least one of its suppliers is fleecing the United States taxpayer,” SpaceX states in its motion. “The Air Force would not have been able to determine that ULA’s prices were fair and reasonable, and the Air Force would have rejected ULA’s proposal and not entered into the December 2013 sole source contract.”
ULA, meanwhile, is responding in the court of public opinion, so to speak, with a series of advertisements emphasizing the company’s track record in launching critical government satellites. The company released the second in that series, which it calls “Reliability over Recognition.” (The first, released last week, was dubbed “Results over Rhetoric.”)
“As ULA CEO Mr. [Michael] Gass has publicly stated,” ULA spokesperson Jessica Rye wrote in an email accompanying the ad, “there has been misinformation and we want to make clear that there is a lot at stake when launch services provide critical national security support to our military and first responders and help predict dangerous weather events.”
Tuesday’s 90-minute hearing by the House Science Committee on the final report National Research Council’s Committee on Human Spaceflight broke little new ground about the report or its conclusions about where, why, and how humans should explore space beyond Earth orbit. The committee’s two co-chairs, Mitch Daniels and Jonathan Lunine, discussed the report’s conclusions as some members used the report to back up their own—and often negative—opinions of NASA’s current space exploration plans.
“The administration’s continued focus on costly distractions is harmful to our space program and does not inspire future generations to go into innovative fields in science and math,” said Rep. Lamar Smith (R-TX), chairman of the committee, in his opening statement, referring to NASA’s Asteroid Redirect Mission (ARM) plans. ARM, he said, “is a mission without a realistic budget, without a destination, and without a certain launch date.” That is similar to past criticism he has levied against ARM.
The NRC report did not reflect favorably on an exploration “pathway” that included ARM, indicating that it contained a large number of technological leaps and dead-ends. However, the committee co-chairs were not, despite some questioning along those lines from members, critical of ARM itself, saying they did not closely study it while working on the report. “The task statement that we responded to in our report did not include a detailed assessment of the ARM,” Lunine said in response to a question on it from Rep. Mo Brooks (R-AL). “We did not conduct a scientific or technical assessment of the ARM, specifically.”
While some Science Committee members, like Smith, seemed willing to lay the blame for the current state of NASA human spaceflight efforts at the feet of the Obama Administration, the witnesses stayed above any partisan fray, arguing that any lack of direction in human space exploration has roots that go back far deeper. Language in the report, Daniels said, was “meant to refer not to any one administration, but really to a persistent pattern now, and I think we speak in terms of decades.”
Members also pressed Daniels and Lunine on the costs of the proposed pathways that would get humans to Mars. The report was deliberately vague about it, other than stating the need for spending increases above the rate of inflation, as well as a greater use of international partnerships, points the co-chairs emphasized in their testimony. “I think that, quite properly, the committee didn’t want to go beyond expressing bands and ranges” for the costs of mission architectures, Daniels said when asked by Rep. Donna Edwards (D-MD) for a “ballpark” budget estimate. “The ultimate budget would be driven by the pathway chosen” and that the committee “didn’t want to commit the sin of false precision.”
Edwards sounded a little frustrated by that response. “I don’t think we want NASA committing to those sins, either, but we do have to have a budget from the Congress,” she responded. As they stated at the rollout of the report earlier in the month, Daniels and Lunine said during the hearing that the total costs of achieving the “horizon goal” of landing humans on Mars would run into the hundreds of billions of dollars over several decades.
One issue the witnesses emphasized throughout the hearing was the importance of a long-term commitment from government and the American public for an exploration pathway, including the budget increases the committee concluded were needed to carry out the missions in that path in a “reasonable” period. (Daniels and Lunine didn’t define “reasonable,” but the example pathways included in the report have people landing on Mars some time between the late 2030s and mid 2050s.) “If there is not that strong national commitment, then it’s going to be difficult to pull off human exploration missions into deep space at all,” Lunine said.
The report, though, doesn’t discuss how to develop and sustain such a long-term commitment, only that one is necessary. “We recognize that calling for an approach like this flies in the face of everything back to the ’70s,” Daniels said. “But we also say that if it seems unrealistic to believe that sort unity and that sort of continuity could be brought off in our system, then we might as well face up that Mars itself is unrealistic.” He added in what he acknowledged was “wild, wishful thinking” that such sustained support for space exploration could be an area of cooperation for people who “disagree strongly and sincerely” about other issues.
Some members mentioned one of the more controversial aspects of the report that did not deal with exploration destinations and pathways: its finding that greater international cooperation should also include China. Rep. Frederica Wilson (D-FL) expressed concerns about intellectual property theft should China be involved in future space exploration efforts. Rep. Dana Rohrabacher (R-CA) drew an historical analogy. “What if someone said in 1937, ‘We really want to develop this rocket to go to the Moon and this guy over there in Germany really has got a good rocket program. Maybe we should cooperate with him.’”
“The committee recognized how difficult and complex this subject is,” Daniels responded. “Remember the incredible timeframes over which we’re talking. Countries that are friends today with might not be friends in 2040 or 2050, which might be as soon as we can get there in the best of circumstances. And vice versa.”