The question of extending launch indemnification isn’t the only space policy issue that Congress will be facing when they return for their lame-duck session next month. Also on their plates will be the ongoing export control reform effort, in the form of legislation returning to the president the authority to remove satellites and related components off the US Munitions List (USML) and thus out of the purview of the International Traffic in Arms Regulations (ITAR). The space industry has sought to get such reforms passed for years, and now they’re closer to success than ever before—but with no guarantee they’ll make it past the finish line before Congress adjourns at the end of the year.
The most likely way export control reform would make it into law is through the defense authorization bill, formally known as the National Defense Authorization Act (NDAA). The House version of the NDAA, HR 4310, included a provision returning authority for determining export controls for satellites and related components to the president, reversing the language in the 1999 version of the NDAA that explicitly placed them on the USML. There is a standalone bill in the Senate, introduced in May by Sen. Michael Bennet (D-CO), that would do the same, but including the language in the NDAA is considered a better path to passage. (There is no requirement that there be a defense authorization bill passed every year, but congressional observers note it’s been decades since a year went by without one.)
The Senate has scheduled a week to take up its version of the NDAA during the lame-duck session after the election, participants at a meeting of the Export Control Working Group of the Commercial Space Transportation Advisory Committee (COMSTAC) on Tuesday in Washington said. There are a range of scenarios, from one where the Senate “pre-conferences” its version of the legislation with the House before passing it (allowing the House to then pass that version without a formal conference committee) to those where the Senate passes a separate version and a conference committee works out the differences between the two, including any differences in export control language.
Adding to the challenges of the legislative hurdles associated with getting the export control reform provision incorporated into the final version of the NDAA is a dispute between the Obama Administration and Congress about the language of that provision. At the COMSTAC working group meeting, Eric Hirschhorn, Under Secretary of the Commerce Department’s Bureau of Industry and Security (BIS), said the administration had issues with the language in the House version of the NDAA. “Unfortunately, the House bill also included some unacceptable positions that, in their current form, would cripple the broader export control reform initiative, including the satellite portion,” he said. “We oppose the other provisions in their current form. We are open to compromise, and we hope to find a compromise.”
Hirschhorn said that the administration’s specific concern with the House language was the requirement to “enumerate to the extent practicable” everything that the administration seeks to transfer from the USML to the Commerce Control List (CCL). (That’s a reference to Section 1243 of the NDAA, which requires a notice to Congress “to the extent practicable, an enumeration of the item or items to be removed and describe the nature of any controls to be imposed on the item or items under any other provision of law”.) Hirschhorn said the administration was concerned about the potential paperwork burden that provision might create. He said the administration was also concerned the bill would limit the administration’s ability to use waivers to the Tiananmen sanctions in place since 1990, which have never been used for satellite exports to China.
Later at the same working group meeting, though, Tom Moore, a Republican member of the staff of the Senate Foreign Relations Committee, fired back. “They will not compromise,” he said of the administration. “There will be time for improvement [of the House bill]. But I just have to be very frank: the administration has done a very poor job of explaining the particulars to me and to other people who care a lot about this.” The administration, he concluded, “needs to do a better job in terms of negotiating with us and asking us, rather than telling us, and to date they have not done that.”
That lack of communication is perhaps the biggest obstacle to passage of export control reform. “I have dire concerns relative to the communication, or lack thereof, between the administration and Congress, between the two branches, as well as between the Armed Services Committee, which handles the NDAA, and the Foreign Affairs/Foreign Relations Committees, who actually have purview over the export control issue,” said Mike Gold, chairman of the export control working group, at the full COMSTAC meeting on Wednesday.
Still, Gold sounded optimistic about the prospects for export control reform, even while emphasizing the high stakes involved. “If there was ever a time to get behind the reform effort—call your senator, call your congressman—now is it,” he said. “I am told by congressional staff that if we don’t succeed with this NDAA effort, it will be at least another two to three years before we can rally another serious go at the legislation.”
“It is all down to this one last shot,” he concluded.