The following events may be of interest in the coming week.  The Senate is in session through Saturday, then will take a week off for the Memorial Day recess.  The House left for its Memorial Day recess on Friday (other than pro forma sessions) and will return on May 30. 

During the Week

The marquee event for the week will be whether SpaceX tries again to launch its Falcon 9 rocket and Dragon spacecraft to the International Space Station (ISS).  The first launch attempt today (May 19) was scrubbed with less than one second to liftoff when the engine chamber pressure on one of the Falcon’s nine engines was too high.   If the problem can be fixed in time, the next launch opportunity is May 22 at 3:44 am ET.  Another possible launch opportunity is May 23 at 3:22 am ET, but NASA and SpaceX did not know immediately if the range was available at that time.  Stay tuned for updates from SpaceX or NASA.

Separately, the Senate Armed Services Committee (SASC) will markup its version of the FY2013 National Defense Authorization Act this week.  Subcommittee markups are early in the week, with the Strategic Forces subcommittee marking up on Wednesday at 9:30 am.  Full committee markup begins later that day at 2:30 and continues the next day.  The meetings are closed to the public so are not listed below.   The House passed its version of the bill, H.R. 4310, yesterday.

Tuesday, May 22

• Possible second launch attempt for SpaceX, Cape Canaveral, FL, 3:44 am ET

Tuesday-Thursday, May 22-24

• AIAA/IAF Global Space Exploration (GLEX) Conference, L’Enfant Plaza Hotel, Washington, DC

Wednesday-Friday, May 23-25

• National Research Council Space Studies Board Committee on Astrobiology and Planetary Science (CAPS), Keck Center, 500 5th Street, NW, Washington, DC

Thursday-Monday, May 24-28

• International Space Development Conference, Grand Hyatt Washington, Washington DC

Friday, May 25

• NASA Aerospace Safety Advisory Panel (ASAP), NASA Marshall Space Flight Center, Huntsville, AL, 10:00-11:00 am CT (11:00-12:00 ET)

The House will continue debate today on the FY2013 National Defense Authorization Act (NDAA), H.R. 4310, turning its attention from general debate to a long list of amendments.

One of those many amendments (click on “amendments” tab) could change the export control environment for commercial satellites.  Amendment 152, offered by Representatives Adam Smith (D-WA), Howard “Buck” McKeon (R-CA and chairman of the House Armed Services Committee), Dana Rohrabacher (R-CA), and Kevin McCarthy (R-CA and House Majority Whip) would authorize the President to remove commercial satellites and related components from the U.S. Munitions List (USML).  The Administration would have to submit various determinations and reports, and exports to certain countries are prohibited, but in essence the amendment would restore to the President the authority to make the decision on whether commercial satellites are governed by the USML or the Commerce Department’s Commerce Control List (CCL).   Congress took away that authority in the FY1999 National Defense Authorization Act in the wake of the “Loral-Hughes” controversy where Congress found that those companies had assisted China in developing missile capabilities by helping them determine why several Chinese launches of U.S.-built communications satellites failed.  

China is on the list of countries to which exports of commercial satellites still would be prohibited.  The others are Cuba, Iran, North Korea, Sudan, Syria, and “any other country with respect to which the United States would deny the application for licenses and other approvals for exports and imports under section 126.1 of the International Traffic in Arms Regulations” or ITAR.

The amendment comes in the wake of a long-awaited report from the Departments of State and Defense — the “section 1248 report” — on the national security implications of moving commercial satellites and their components from the USML to the CCL.  The U.S. commercial communications satellite industry has been arguing stridently for more than a decade to ease export controls for their products arguing that European competitors are benefitting by making “ITAR-free” satellites that are not subject to U.S. export control regulations.

The White House said yesterday that it would veto the FY2013 National Defense Authorization Act (NDAA) if it passed Congress in its current form.  The House will begin debate on the bill, H.R. 4310, today.

The White House veto threat was just one shot fired in the escalating debate over the nation’s economic future as the election season ramps up.  Though not an economic issue, one of the provisions to which the White House objects would prohibit the Administration from agreeing to an International Code of Conduct for space activities without the advice and consent of the Senate or unless it is authorized in law.

The NDAA authorizes funding and provides policy guidance for the Department of Defense (DOD) and related activities.   In last year’s Budget Control Act (BCA), Republicans and Democrats on Capitol Hill and the White House agreed to drastic cuts in federal spending in return for congressional approval to raise the debt ceiling.   The House, however, has reneged on that deal.  It passed a bill last week exempting DOD from the spending cuts and imposing those cuts on other parts of the budget, particularly food stamps and other entitlement programs.

In its Statement of Administration Policy (SAP) on the bill, the White House says it will veto the final version of the bill “if the cumulative effects of the bill impede the ability of the Administration to execute the new defense strategy and to properly direct scarce resources” or if it contains language that would “impinge on the President’s ability to implement the new START Treaty and to set U.S. nuclear weapons policy.”

The SAP has a lengthy list of other provisions to which the White House objects.  One is opposition to Section 913, which would prohibit the President from agreeing to an International Code of Conduct for space activities without the advice and consent of the Senate or unless it is authorized by law.   Under the Constitution, treaties are subject to the advice and consent of the Senate, but the Administration argues that the space Code of Conduct would be a voluntary agreement with no enforcement provisions, not a treaty, and thus not subject to congressional action.   The extent to which the White House would consult with Congress before agreeing to a space Code of Conduct has been a sticking point since the concept emerged.

The European Union (EU) drafted a Code of Conduct for Outer Space Activities in 2008 and released a revised draft in October 2010.   In January 2012, Secretary of State Hillary Clinton announced that the United States would work with the EU and other countries on finalizing a version of the agreement after bringing more countries into the discussion, a process expected to take several years.  A major theme of the agreement is space sustainability — ensuring that the space environment remains usable in the future  — by defining responsible behavior so those who behave irresponsibly can be singled out.    A Chinese antisatellite (ASAT) test in 2007 and the accidental collision of an American commercial Iridium communications satellite and a defunct Russian Kosmos satellite in 2009 created thousands of pieces of space debris in the most heavily used part of low Earth orbit.  Those events prompted calls for limiting the creation of space debris and enhancing space situational awareness so countries and companies operating in space know the current and projected locations of satellites and debris so collisions can be avoided.

Some members of Congress, however, are concerned that the Code of Conduct is a back-door approach to arms control in space that could limit U.S. options.  They do not want the Administration agreeing to anything without their approval.   In the SAP, however, the Obama Administration said that Sec. 913 of the NDAA “encroaches on the Executive’s exclusive authority to conduct foreign relations and could severely hamper U.S. ability to conduct bilateral space cooperation actitivies with key allies.”

While important enough to make the list of Administration objections to the House version of H.R. 4310, the Code of Conduct is likely to be a minor issue compared to the funding disputes.   The sharp differences between Republicans and Democrats over how to reduce the federal deficit were once again brought into sharp relief yesterday as House Speaker John Boehner vowed not to approve another increase in the debt limit without deep spending cuts that nonetheless protect the defense budget.  Republicans continue to insist on not increasing taxes and, in fact, say that they will extend the Bush-era tax cuts that will expire at the end of this year.  Democrats want to reduce the decifit by a combination of spending cuts and tax increases and the President insists that he will not approve an extension to the Bush-era tax cuts for wealthier individuals.

The expiration of those tax cuts, and harsh spending reductions to defense and non-defense discretionary spending under the sequestration provisions of the Budget Control Act that automatically take effect on January 1, 2013 unless Congress changes the law, are driving the political and fiscal debate in Washington.  Sequestration could have dramatic consequences for the aerospace industry according to the Aerospace Industries Association (AIA).  It is leading the drive to raise awareness of what could happen to the U.S. aerospace industry if Congress and the White House do not agree on a different course of action.

The Satellite Industry Association (SIA) applauded the Department of Defense’s (DOD’s) final report on the national security implications of relaxing export control regulations on satellites.  The “sec. 1248” report was released today.

The report was prepared by DOD and the State Department in response to sec. 1248 of the FY2010 defense authorization act wherein Congress directed DOD to assess whether national security would be negatively impacted by moving satellites from the U.S. Munitions List (USML) controlled by the State Department to the dual-use Commerce Control List (CCL) administered by the Commerce Department. 

The White House issued a fact sheet summarizing the report.

The report concludes that communications satellites that do not contain classified components and remote sensing satellites with performance parameters below certain thresholds do not contain technologies unique to the United States and are not critical to national security.  Thus, they would be more appropriately designated as dual-use on the CCL list instead of on the USML.  That also applies to systems, subsystems, parts and components associated with the satellites.  At a press conference today, Deputy Assistant Secretary of Defense for Space Policy Gregory Schulte said it would move “hundreds of thousands” of components from the USML to the CCL.

U.S. satellite manufacturers have been seeking relief from the comparatively onerous export control system dictated by the USML and its associated International Traffic in Arms Regulations (ITAR) for more than a decade.  The George H.W. Bush and Clinton Administrations had moved commercial communications satellites from the USML to the CCL in the early 1990s.   Congress reversed that decision in the FY1999 defense authorization act (P.L. 105-261) after a special congressional committee determined that U.S. satellite manufacturers violated export control laws and assisted China in developing its missile technology by aiding in analysis of launch failures of Chinese rockets that were carrying U.S.-built satellites.   No U.S.-built satellites or satellites containing U.S. components have been exported to China for launch since that time. 

European companies began building satellites without U.S. components that are “ITAR-free” — not subject to the U.S. ITAR rules — and selling them to customers who do not want to deal with the U.S. export control system.  Today’s report states that the current U.S. export control regime “places the U.S. industrial base at a distinct competitive disadvantage when bidding against companies from other advanced satellite-exporting countries that have less stringent export control policies and practices.”

This report does not recommend changing how China is treated, however.  Appendix 4 of the report points out that an earlier law, P.L.  101-246, that was enacted after the 1989 Tiananmen Square uprising would remain in effect.  It prohibits launching U.S. satellites on Chinese rockets without a presidential waiver.   Such waivers were granted in the first half of the 1990s, which allowed U.S.-built satellites to be launched by China and led to the problems addressed by the 1999 law.  The so-called Tiananmen Square restrictions also prohibit export of items on the USML to China.   If this report’s recommendations are followed and hundreds of thousands of items are transferred from the USML to the CCL, that restriction might no longer apply.  However, the report calls for changes to the CCL, too.   It recommends prohibiting items on the CCL from being transferred to any “embargoed country,” a category that includes China, Syria, North Korea and others.

Some influential members of Congress remain adamantly opposed to allowing transfer of any satellite technology to China, so that recommendation may assuage those concerns.  The anti-China sentiment is quite strong with some Members, however, as illustrated by Rep. Frank Wolf’s (R-VA) long standing opposition to any U.S.-Chinese space cooperation.

SIA, a U.S.-based trade association for the commercial satellite industry, hailed the report.   SIA President Patricia Cooper said it represents “a more contemporary picture of the national security, space and satellite environments.”   She added that SIA and its members hope Congress will pass H.R. 3288, an export control reform bill sponsored by Rep. Howard Berman (D-CA) that contains provisions similar to what is recommended in the report.

Congressional action is needed because the FY1999 defense authorization act removed presidential authority to decide how to regulate satellite exports.  It requires that satellites, their components, associated technical data and related ground equipment be treated as munitions.    The report and the SIA both point out that the satellite industry is the only sector where Congress has mandated export policy by law.   “Space-related items, even if they have civilian applications, are the only dual-use items that are required by law to be controlled as defense articles,” the report states, while the President has the authority to determine which set of export regulations govern any other sector. 

Schulte said today he believes the approach recommended in the report will strengthen U.S. national security “by energizing the industrial base” and allowing U.S. companies to better compete globally.  He is hopeful that Congress will agree.   He and Lou Ann McFadden, Chief of the Strategic Issues Division at the Defense Technology Security Administration (DTSA), stressed that by removing these items from the USML, the government can focus on preventing the transfer of technologies that really could affect national security.

McFadden expressed frustration that DTSA is required by law to sit in on meetings with companies that over the past 15 years have demonstrated a “culture of compliance” with the current export control laws.  “We are frustrated that we have to be present at low risk activities when there are high risk activities we want to monitor,” she said.  “We’re forced to monitor the same people over and over on the same activities.”  Instead, she believes they should be focusing on helping new companies, for example, “get off on the right foot” in understanding and complying with export controls.