By Jeff Foust on 2014 May 6 at 8:06 pm ET Late Tuesday the US Government, the defendant in SpaceX’s EELV lawsuit, formally filed a motion with the US Court of Federal Claims to lift the injunction the court issued last week blocking the government from purchasing RD-180 rocket engines from Russian company Energomash. The government provided letters from the Departments of Treasury, Commerce, and State that demonstrate “purchases from or payments to NPO Energomash would not directly or indirectly contravene Executive Order 13,661,” the order that levied sanctions against several officials, including Russian Deputy Prime Minister Dmitry Rogozin.
The letters from Treasury and State argue that while there may be a “potential basis” for sanctions to be triggered, the order requires the departments to “make an affirmative determination to trigger blocking under the ‘controlled by’ provisions of the [court] order,” in the words of the State Department letter. Since the government has not made a formal determination that Rogozin controls Energomash, the departments concluded that payments to and from Energomash are not in violation of that executive order. (The Commerce Department deferred to Treasury and State in its letter.)
In the government’s motion, it requested “expedited consideration” of the request. As of early Tuesday evening, the court hasn’t acted. However, a spokesperson representing SpaceX emailed late Tuesday afternoon, before the motion was filed, that the company expected the court to lift the injunction “as early as today.”
By Jeff Foust on 2014 May 6 at 10:44 am ET While the concept of a human Mars flyby mission launching in 2021 got the attention of some in Congress in late February, the proposed mission, based on designs developed by Inspiration Mars, has maintained a low profile since then. The authorization bill that the House Science Committee approved last week does require NASA to perform a technical study of the concept and also assess whether the mission “is in the strategic interests of the United States in space exploration.” However, there hasn’t been a major push to advocate for the proposed mission. Even Inspiration Mars founder Dennis Tito is staying on the sidelines: a spokesperson said last month that “based on the dynamic state of play with the NASA budget right now” Tito is refraining from interviews or other public comment on the mission concept.
The same isn’t true, though, for former NASA administrator Mike Griffin, who completed a two-year term as president of the American Institute of Aeronautics and Astronautics (AIAA) last week. Griffin, in an op-ed in the Houston Chronicle yesterday with new AIAA president Jim Albaugh, argued that “Mars Flyby 2021″ provides a focus to the nation’s space program that they find lacking. “A commitment to the first human mission to Mars would provide just the impetus we need as a nation to address the political and technical issues that are the present day roadblocks on our path to Mars and, later, beyond,” they write. “The goal is near enough to require action rather than talk, yet far enough to be attained without undue pressure on the budget.”
Griffin and Albaugh don’t seem to doubt the feasibility of the mission concept in general: “unlike the situation in the time of Apollo, what faces us for Flyby 2021 are not questions of fundamental feasibility but rather are matters of routine engineering development, well within our capability to pursue.”
At the February hearing, the ranking member of the full science committee, Rep. Eddie Bernice Johnson (D-TX), expressed skepticism that the 2021 flyby mission is feasible, answering the question posed by the hearing’s title—”Mars Flyby 2021: The First Deep Space Mission for the Orion and Space Launch System?”—with a simple “no.” Griffin and Albaugh acknowledge her comments, but argue that other questions she raised at the hearing about NASA’s future space exploration plans are “precisely the questions for which Mars Flyby 2021 can focus our nation and our space agency on” to help provide answers. “For these reasons and more, the congresswoman’s questions should be seen not as reasons to stay, but as reasons to go.”
By Jeff Foust on 2014 May 5 at 6:07 pm ET Since the preliminary injunction issued by the US Court of Federal Claims late Wednesday that blocked the US Air Force and United Launch Alliance (ULA) from making any payments to NPO Energomash, the Russian company that manufactures the RD-180 engine used by ULA’s Atlas V, there has been a increasingly heated war of words among the parties involved in the suit regarding the language of the injuction, in the form of a series of filings made to the court.
The debate started Friday when the Justice Department filed with the court a proposed order clarifying one aspect of the injunction. That proposed order states that the injunction “does not apply to Government purchases from or payments to either United Launch Services, LLC (ULS) or United Launch Alliance, LLC (ULA). The United States may continue to make payments to ULS and/or ULA.” That seems straightforward enough, although to the non-legal eye, there’s nothing in the original injunction that would appear to have prohibited such payments in the first case.
However, in a response filed with the court on Sunday, SpaceX’s legal counsel strongly opposed the proposed order. “In other words, Defendant asks the Court to permit the Government to continue to provide funds to Defendant-Intervenor even if Defendant cannot certify that those funds will flow to NPO Energomash and/or other entities that may be under the control of Deputy Prime Minister Rogozin,” the document states. (In the legal language of the filing, the Defendant is the US Government, while the “Defendant-Intervenor” is United Launch Alliance and its operating entity, United Launch Services.) “In essence, Defendant seeks to continue business as usual under the EELV program—including paying monies to ULS—relieved from any obligation to ensure that those monies do not flow in violation of sanctions.”
On Monday, ULS responded to SpaceX’s response, mincing no words. “SpaceX’s response is a frivolous and improper attempt to interfere with ULS’s business by needlessly expanding an injunction it never sought in the first place,” it states. “There is no basis whatsoever for SpaceX’s libelous suggestion that the United States, ULS, and ULA will try to ‘circumvent’ the Court’s Order.” It adds that under the “plain terms” of the order, the Air Force can continue to make payments to ULS “because ULS is obviously not under the control of Deputy Prime Minister Rogozin.”
In documents filed with the court Friday, the parties anticipated the presiding judge, Susan G. Braden, would rule on the proposed order on Monday. As of late Monday afternoon, the court had not yet issued a decision.
Update 1 pm May 6: In a one-sentence order released Tuesday morning, Judge Braden denied the proposed order filed Friday by the US Government: “For the reasons discussed during the May 5, 2014 status conference, the Government’s May 2, 2014 Motion For Clarification Of Preliminary Injunction Order is denied.” No additional reason is given, nor any other details about the status conference held Monday afternoon by telephone.
By Jeff Foust on 2014 May 4 at 11:30 am ET Despite the uncertainty in exports to Russia created by the Ukraine crisis, the overall export control reform effort is moving forward. As of last month, the final rule for Category XV of the US Munitions List (USML), which covers satellites and related components, and its corresponding section of the Commerce Control List (CCL), was due to be published in May. That final rule would be an update of the proposed rule published in May of last year.
The final rule, when it is released, is expected to include only relatively minor changes to the draft rule from last year. At a panel on export control reform at last month’s Space Tech Expo in Long Beach, California, Mark Jaso of the Department of Commerce said he couldn’t go into details about the final rule since it was still in review. He did say there are additions to the proposed rule in the form of “further definitions to help you understand what may or may not be controlled.”
Those additional definitions and other changes may address some areas of the draft rule that attracted comments and criticism. One of those, said John Ordway, partner at Berliner, Corcoran & Rowe LLP, is the rule that keeps secondary and hosted payloads funded by the Department of Defense on the USML, and thus under the more restrictive jurisdiction of the International Traffic in Arms Regulations (ITAR). He noted one area of uncertainty was just how much DOD funding was required for that payload to be considered “DOD-funded” and thus on the USML. “My understanding is that, in the final rule, there will be more gradations” in that definition, he said. “They’ll make it a little more clear than it is now, because right now it’s very ambiguous.”
Another area of interest is satellite servicing technology, which also remained on the USML in the draft rule. “Satellite refueling has great promise,” Ordway said, “but if it’s all ITAR-controlled, it’s going to have that same heavy cloak on it that commercial communications satellites do today.” He said he’s “hopeful” that that the final rule will have some more gradations on what satellite servicing technologies would remain on the USML and which would go to the CCL.
When the final rule is published, be it this month or later, it will not immediately go into effect. Instead, the rule’s publication will start a 180-day waiting period to give companies time to digest the new contents of the USML and CCL and revise their export control processes accordingly. “The six-month implementation period between when the final rules are published and when they actually take effect is going to be really critical for industry,” said Sam Black, director of policy for the Satellite Industry Association (SIA), a major proponent of export control reform. “This is not going to be a trivial task.”
In particular, he said the reforms will create some complexity, since there will be more exceptions and need for interpretation than under the current system, where effectively all satellites and related technologies fall under ITAR. “I sort of think of it as going from a math world to a grammar world,” he explained, contrasting the certainty of mathematics with the often irregular, complex rules of grammar. “It’s not as black and white as it used to be. And any time you give people more flexibility from a regulatory standpoint, it adds complexity. There’s no way to do one without the other.”
It’s uncertain if the final rule will address some other areas of concern about the draft rules, such as what classes of Earth observation satellites and systems to keep on the USML, as well as the inclusion of crewed spacecraft on the USML. However, even if changes aren’t made to these sections in the final rule, there will be future opportunities to change those sections. Satellites and related components were placed on the USML by Congress by law in the late 1990s, but in 2012 Congress restored the President’s ability to remove satellites and related components off the USML. “The advantage of it no longer being Congressionally mandated is that the administration, whatever administration, can take a second look,” Ordway said.
By Jeff Foust on 2014 May 1 at 2:53 pm ET Sen. Barbara Mikulski (D-MD) is one of the most powerful members of Congress given her position as chairwoman of the Senate Appropriations Committee. She’s used that power to help NASA—or, at least, specific programs within the agency—win funding. However, she’s not shy to speak up when she thinks the agency is off course, which is what she did on Thursday.
“I was deeply troubled to receive the President’s budget,” she said at a hearing by the committee’s Commerce, Justice, and Science (CJS) subcommittee Thursday morning on the NASA budget proposal. “I was deeply troubled in the area of NASA because there was a reduction of $186 million from fiscal [year] 2014.” In addition, she said she was concerned about a $200-million cut in programs administered by the Goddard Space Flight Center (or “Goddard Space Agency,” as she called it) in her home state, as well as cuts in the Orion spacecraft and the Space Launch System heavy-lift rocket.
NASA administrator Charles Bolden, the sole witness at the hour-long hearing, worked to reassure Mikulski that Goddard was not being singled out. “I firmly believe that Goddard will continue to be an integral part of all the programs we have going forward,” he said.
Nonetheless, Mikulski pressed Bolden not to single out science programs—which constitute much of Goddard’s work—for cuts. “I don’t want to talk about future missions. I want to talk about now,” she said. “I don’t want science to fund, to be a bank account, for other projects that might or might not happen in the future,” she said.
Much of the hearing, attended only by Mikulski and ranking member Sen. Richard Shelby (R-AL), covered familiar topics. Shelby expressed his worries about funding levels for SLS in particular, as well as the lack of transparency in the commercial crew program, saying that it used “the same flawed model” as the commercial cargo program.
As he has done in previous appearances, Bolden emphasized the need to fully fund commercial crew in the 2015 request to keep the program on track to start transporting astronauts to the International Space Station in 2017. “If the Congress funds to the President’s requested level in 2015, we’re on a good trajectory to get there,” he said, one of several similar statements he made at the hearing.
Bolden also, as he has done in recent appearances, sought to tamp down concerns about a loss of access to the station given the ongoing tensions with Russia. “What I am striving to do is continue the relationship I have with Mr. [Oleg] Ostapenko, who heads Roscosmos, to make sure he does everything he can in Russia to calm down the diplomats and the politicians there, as we’re trying to do here in the US,” said Bolden, who called the NASA partnership with Roscosmos “steady” and “firm.”
Bolden declined to speculate on whether the preliminary injunction filed late Wednesday against ULA and the Air Force regarding purchases of RD-180 rocket engines would affect NASA missions. Asked by Shelby if this injunction would prevent NASA from buying seats on Soyuz missions to the ISS, should the scope of the injunction expand to other Russian space programs, Bolden did say NASA had already paid for those seats through 2017 and thus he believed would not be directly impacted by the injunction.
At the end of the hearing, Mikulski said she expected that the appropriations committee would get its overall spending allocations by next week, and she said she hoped to have a CJS spending bill passed by the full committee before the Senate recesses at the end of June for the Independence Day break. “There is not new money on the horizon, so I think we have to be candid about that,” she warned. “Though we agree on the goals [of NASA], I’m not so sure we agree on some of these priorities.”
By Jeff Foust on 2014 May 1 at 8:41 am ET Late Wednesday, the presiding judge in the US Court of Federal Claims case between SpaceX and the US Air Force issued a preliminary injunction blocking the Air Force and United Launch Alliance (ULA) from purchasing RD-180 rocket engines from Russian company NPO Energomash. In her three-page decision, Judge Susan G. Braden concluded that purchases of those engines could run afoul of sanctions levied on Russian Deputy Prime Minister Dmitry Rogozin, who oversees the Russian space industry. SpaceX made that argument in its complaint filed with the court on Monday: “In other words, under the ULA Contract, the Air Force is sending millions of dollars directly to an entity controlled by Russia and to an industry led by an individual identified for sanctions.”
The injunction by Judge Braden blocks purchases from and payments to NPO Energomash “unless and until the court receives the opinion of the United States Department of the Treasury, and the United States Department of Commerce and United States Department of State, that any such purchases or payments will not directly or indirectly contravene Executive Order 13,661,” the order that levied the sanctions on Rogozin and other Russian officials.
The injunction does not affect payments already made to, or purchase orders already placed with, NPO Energomash. Since ULA was not planning to receive any engines from Energomash until August, per a report last week in The Hill, the injunction has little impact on ULA and the Air Force in the short term. However, the injuction may offer some insights into the judge’s initial impressions of the SpaceX suit, since the opinion notes that several criteria are required in order for a preliminary injunction to be issued, including “a reasonable likelihood of success on the merits” and “irreparable harm if an injunction is not granted.”
Update 11:15am: ULA responded to the injunction with a statement issued to a select group of media outlets (which, after a delay, it did post to its website by midday Eastern time). In the statement, ULA general counsel Kevin MacCary said the company is “deeply concerned” with the suit and will work with the Justice Department “to resolve the injunction expeditiously.” MacCary also criticized SpaceX for its “opportunistic action” in seeking the injunction. “SpaceX’s attempt to disrupt a national security launch contract so long after the award ignores the potential implications to our National Security and our nation’s ability to put Americans on board the International Space Station,” he said in the statement.
By Jeff Foust on 2014 April 30 at 9:23 pm ET NASA has released a summary of its fiscal year 2014 operating plan, which details any changes to spending for programs the agency has made (with the approval of Congress) from the final FY14 appropriations bill. As the table below shows, the changes are very minor; last year, NASA made bigger changes to adjust spending for agency priorities after the across-the-board cuts of sequestration went into effect. (The operating plan also provides a breakout of spending within Space Operations, which was omitted from the omnibus spending bill.)
| Account |
FY14 Omnibus |
FY14 Ops Plan |
| SCIENCE |
$5,151.2 |
$5,148.2 |
| - Earth Science |
$1,826.0 |
$1,824.9 |
| - Planetary Science |
$1,345.0 |
$1,343.4 |
| - Astrophysics |
$668.0 |
$678.3 |
| - JWST |
$658.2 |
$658.2 |
| - Heliophysics |
$654.0 |
$643.3 |
| SPACE TECHNOLOGY |
$576.0 |
$576.0 |
| AERONAUTICS |
$566.0 |
$566.0 |
| EXPLORATION SYSTEMS |
$4,113.2 |
$4,113.2 |
| - SLS/Orion |
$3,115.2 |
$3,115.2 |
| - Commercial Spaceflight |
$696.0 |
$696.0 |
| - Exploration R&D |
$302.0 |
$302.0 |
| SPACE OPERATIONS |
$3,778.0 |
$3,776.4 |
| - ISS |
n/a |
$2,964.1 |
| - Space and Flight Support |
n/a |
$812.3 |
| EDUCATION |
$116.6 |
$116.6 |
| CROSS AGENCY SUPPORT |
$2,793.0 |
$2,793.0 |
| CONSTRUCTION |
$515.0 |
$519.6 |
| INSPECTOR GENERAL |
$37.5 |
$37.5 |
| TOTAL |
$17,646.5 |
$17,646.5 |
As SpacePolicyOnline.com (who requested the FY14 operating plan from NASA) notes, the operating plan still fully funds the SOFIA airborne observatory even though NASA is seeking to end funding for it in its FY15 budget proposal. However, there’s no guarantee that all of this funding would be used for operations of SOFIA: NASA officials warned in March that the $12 million proposed for FY15 might not be sufficient to cover the costs of mothballing the 747 aircraft.
By Jeff Foust on 2014 April 30 at 11:55 am ET In a relatively short and very amicable markup Wednesday morning, the House Appropriations Committee’s Commerce, Justice, and Science (CJS) subcommittee approved a fiscal year 2015 spending bill. The bill, released by the committee yesterday, provides about $17.9 billion for NASA in FY15, and the subcommittee made no changes to that section or other parts of the full bill during the markup.
Subcommittee chairman Rep. Frank Wolf (R-VA) mentioned a few parts of the NASA bill in his opening statement, including exploration programs, aeronautics, and science. He also called attention to NASA security issues, noting the bill funds implementation of recommendations in a report on security issues at the agency released in summary form earlier this year. “It’s troubling,” he said of what he considers major security lapses at the agency. “I’m surprised the press has failed” to cover the issue in greater detail. “Maybe it’s because NASA is trying to cover it up.”
The markup and accompanying statements also shed some light on other aspects of the bill not explicitly mentioned in the version released yesterday. While he didn’t mention it in his own opening statement, Rep. Chaka Fattah (D-PA), ranking member of the CJS subcommittee, noted in a statement about the bill that the legislation provides “an increase” in funding for commercial crew. The statement doesn’t mention how much of an increase, though, presumably above the $696 million the program received in FY14. NASA requested $848 million for the program, along with $343 million for exploration R&D, for a total of about $1.19 billion, but the exploration account in the draft bill leaves only $1.11 billion for those two programs after taking out funding explicitly specified for SLS and Orion.
Two CJS subcommittee members with a strong interest in planetary science, Reps. John Culberson (R-TX) and Adam Schiff (D-CA), thanked Wolf for the funding levels included in the bill for planetary science. “I want to thank you for the extraordinary efforts that you’ve made to save planetary science and push back some devastating cuts,” Schiff said.
“When we first discover life on another world, it will be because of your work on making sure that we go to Europa,” Culberson said. The bill explicitly sets aside $100 million in planetary sciences funding for continued Europa mission pre-formulation work.
Rep. Mike Honda (D-CA) also thanked Wolf for restoring funding for NASA’s SOFIA airborne observatory in the bill, a detail not mentioned in the bill text. NASA had slashed funding for SOFIA in its proposed FY15 budget and said it would mothball the aircraft if it could not find a new partner to take over NASA’s share of its operations.
Wolf was getting thanks all around from members of the subcommittee, in part because this bill lacked the partisan rancor of last year—the subcommittee passed the billon a unanimous voice vote—but also because Wolf is retiring after this Congress, so this is his final CJS appropriations bill. “Chairman Wolf has just been an absolute marvel in the Congress,” said Rep. Hal Rogers (R-KY), chairman of the full committee. “As you know, he feels strongly about some things—in fact, many things—and sometimes he lets you know how strongly he feels.” NASA knows that, perhaps all too well.
By Jeff Foust on 2014 April 30 at 8:48 am ET While SpaceX decided not to post its official court filing on its “Freedom To Launch” website, as originally promised, the document was available through the court’s filing system by early Tuesday. A copy of the 36-page document is available here.
The document reiterates many of the points made by SpaceX CEO Elon Musk on Friday when he announced the suit, from concerns about being locked out of competing for EELV contracts to concerns about reliance on United Launch Alliance’s (ULA’s) Atlas V rocket and its Russian-made RD-180 engine. “The ULA monopoly has led to murky contracts, reliance on Russian suppliers, and spiraling costs,” the document states.
It does, though, offer some additional details and clarifications, particularly regarding the timing of SpaceX’s action. While Musk said Friday that SpaceX learned of the block buy contract only last month, the filing acknowledges that the block buy contract was executed back in December. Instead, the filing says several recent events triggered the suit, including what it claims is a move by the Air Force not to compete future “single core” EELV launches because of the block buy. “[O]n April 17,2014, SpaceX learned that the Air Force decided not to compete future Single Core Launch Vehicles that SpaceX is qualified to launch because the Air Force has an ‘existing 36-core contractual requirement’ with ULA,” the filing states.
SpaceX believes that its Falcon 9 rocket, which is now eligible to compete for EELV launches since it has delivered the data for all three of its certification launches (although is not yet formally certified), could launch many of the payloads that would be launched under the block buy contract. “But for the Air Force’s improper actions set forth in this Complaint, SpaceX would compete for and win many, if not all, full and open competitions for Single Core Launch Vehicles, including those that the Air Force plans to order in FY20l5,” it states.
SpaceX acknowledges that it doesn’t know what those payloads are, but argues that since the Air Force hasn’t disclosed what missions will launch on the vehicles purchased under the block buy, the service can’t block SpaceX from competing for them. It notes that the Air Force has set aside seven launches in fiscal years 2017–19 for SpaceX, but has not formally explained why SpaceX is not qualified for the estimated 15 other EELV single-core launches planned during that period. “The fact is SpaceX is qualified to compete today for all of the Single Core Launch Vehicle missions scheduled to launch in FY2017-FY2019,” it claims (emphasis in original).
In the filing, SpaceX asks the Court of Federal Claims to find that the Air Force’s sole-source award to ULA violates federal mandates for “full and open competition,” and that it “permanently enjoin the Air Force from procuring any Single Core Launch Vehicles on a sole source basis without first releasing to the public a valid justification and approval determination for the specific launch vehicle to be ordered.” The Air Force, it argues “would suffer no hardship – indeed it would benefit – by promoting competition” while SpaceX would suffer “great hardship” if it is unable to compete for those launches.
By Jeff Foust on 2014 April 30 at 1:46 am ET In a 180-degree turn from just nine months ago, the House Science Committee approved a revised NASA authorization bill Tuesday in a brief session marked by bipartisan cooperation rather than partisan rancor.
The committee approved, on a voice vote, HR 4412, a NASA authorization bill that the committee’s space subcommittee marked up on April 9. The version of the bill approved by the subcommittee was further amended with a single “manager’s amendment” that aggregated requested changes into a single document, 45 pages long. Some of the highlights of the new provisions:
- The amendment includes provisions calling for studies of barriers to enhanced utilization of the ISS National Laboratory and lessons learned from the ongoing Commercial Resupply Services contracts with Orbital Sciences and SpaceX.
- The amendment’s Section 316 prohibits NASA from spending any fiscal year 2014 funding on shutting down the Stratospheric Observatory for Infrared Astronomy (SOFIA) airborne observatory, which the administration said it planned to do in FY2015 if it could not find a partner to take over NASA’s 80-percent share of the project. There had been speculation that the shutdown costs would be more than what is requested in FY15, requiring some FY14 funds be used to support that.
- Sections 715 and 716 call for reports on orbital debris mitigation strategies and also for orbital debris removal strategies.
- Section 717 requires NASA to develop a formal policy regarding its use of commercial suborbital vehicles for research, development, and education activities, including an assessment of the capabilities of those vehicles and the risks of any NASA-sponsored spaceflight participants flying on them. Such spaceflight participants would not be allowed to fly on those vehicles until NASA completed those assessments and also addressed indemnification and liability issues.
- Section 720 would require NASA to coordinate with the Defense Department to ensure that any new liquid-propellant engine the DOD decides to develop can also support NASA needs. That provision is timely, since the draft of the Strategic Forces section of the FY15 National Defense Authorization Act, also released Tuesday, calls for the development of such an engine by 2019, authorizing $220 million to spend on the program in FY15.
Section 725 calls on the Office of Science and Technology Policy to review the issues associated with protecting historic Apollo landing sites. Last year Reps. Donna Edwards (D-MD) and Eddie Bernice Johnson (D-TX), ranking members of the space subcommittee and full science committee, respectively, introduced HR 2617, which would have designated the Apollo landing sites as National Historic Parks. This section does not go that far, but does request in the study an examination of “which additional domestic legislation or international treaties or agreements will be required” to protect the sites.
Today’s hearing was a far cry from the committee’s previous markup of a NASA authorization bill last July, which lasted for hours because of debates on a long series of amendments, most of which failed on party lines. The committee eventually approved the bill, again on a party-line vote, but scrapped it earlier this year in favor of the revised bill, which faced none of that earlier debate on Tuesday.
“I consider reauthorizing NASA to be one of our Committee’s most significant legislative responsibilities,” Johnson said in a statement after the markup session. “And that is why I am pleased that after some initial missteps, this Committee is addressing that responsibility with a good bipartisan bill—something that has long been a hallmark of this Committee.”
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