White House, Congress Clash on Export Reform Bill

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WASHINGTON — Congress and the White House are at loggerheads about details of a bill designed to make it easier for U.S. space companies to sell their wares abroad, a senior U.S. government official said.

A legal provision barring the U.S. president from reclassifying U.S. satellites and related components as nonmilitary technology for export purposes would be eliminated by language in the National Defense Authorization Act for Fiscal Year 2013 (HR 4310). That bill passed the House of Representatives in May and is expected to be taken up in the Senate when lawmakers reconvene after the U.S. general election Nov. 6, according to Eric Hirschhorn, undersecretary of commerce for industry and security.

However, “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,” Hirschhorn said Oct. 9 at a meeting of the U.S. Federal Aviation Administration’s Commercial Space Transportation Advisory Committee (Comstac) here.

In particular, it would be too burdensome to “enumerate to the extent practicable everything that’s being transferred from the U.S. Munitions List (USML) to the Commerce Control List,” as the House bill would require, Hirschhorn said. This is especially true, he said, of satellites and related components, which currently reside exclusively on the USML, a registry of militarily sensitive technologies whose exports are tightly controlled by the U.S. Department of State.

All U.S. satellite technology, regardless of sophistication, application or commercial availability, was transferred to the USML with the passage of the Strom Thurmond National Defense Authorization Act of 1999. The move followed allegations that China was benefiting militarily by launching U.S.-built commercial communications satellites.

Satellite technology export reform has been a high priority for U.S. President Barack Obama. The administration for years sought congressional action of the sort the House took when it approved the latest Defense Authorization Act, only to dig its heels in about phrasing after a bill passed.

At least one proponent of export control reform was alarmed at the turn of events.

“My greatest concern for the ultimate success of this effort is lack of communication between the executive branch and Congress and either party drawing a line in the sand about specific language,” said Michael Gold, an attorney and director of Washington operations for Bigelow Aerospace, the North Las Vegas, Nev., company developing commercial space habitats. Gold also chairs the Comstac working group that advises the Federal Aviation Administration on U.S. export control issues.

In April, the State and Defense departments issued a long-overdue study known as the 1248 report, which concluded that export jurisdiction for many satellites and related components could be moved to the Commerce Department’s Commerce Control List without great risk to national security. State’s export licensing process is considered more restrictive than Commerce’s.

According to congressional and industry sources, the report spurred legislators to action. Shortly after the report’s release, a bill originally introduced in 2011 by Rep. Howard Berman (D-Calif.), the ranking member of the House Foreign Affairs Committee, was tacked onto the defense bill, which shortly thereafter was approved on the House floor. In May, Sen. Michael Bennet (D-Colo.) introduced a bill that, like Berman’s, would restore the president’s discretionary authority to decide licensing jurisdiction for satellite-related technology.

Bennet’s bill, however, which differs in many respects from the House legislation, is stuck in the Senate Foreign Relations Committee and for now lacks a legislative vehicle with a track record of consistent passage.

“We understand that Senate leaders have set aside a week to discuss the [National Defense Authorization Act] after the election,” Patricia Cooper, president of the Satellite Industry Association, a Washington-based trade group, said at the Comstac meeting.

Cooper, citing conversations with staff in both houses of Congress, said she expects the bill to pass with the satellite export provision intact.