HASC Subcommittee Proposes Changes to RD-180 Restrictions Among Multiple Other Space Issues – UPDATE

UPDATE:  The subcommittee approved the draft on April 23 with a few amendments.  The only one related to space was offered by Rep. Lamborn (R-CO) as part of an en-bloc package.  It would specifically prohibit DOD from relying on China or Russia for space-based weather data.

The Strategic Forces Subcommittee of the House Armed Services Committee (HASC) will mark up its portion of the FY2016 National Defense Authorization Act (NDAA) tomorrow.  A draft of the subcommittee’s bill and report, which covers most DOD space programs including national security space launch, was released today. Among its provisions, the draft favorably disposes of Air Force and United Launch Alliance (ULA) concerns about provisions in last year’s NDAA restricting use of Russia’s RD-180 rocket engines.

Last year’s law told DOD that it could not use RD-180s for national security space launches after 2019, although waivers were permitted under certain circumstances.  Those waivers were not sufficient for the Air Force and ULA, however, and they have been lobbying for more flexibility because they do not think a U.S. alternative to the RD-180 will be ready by 2019.   The RD-180 powers ULA’s Atlas V rocket, one of the two Evolved Expendable Launch Vehicles (EELVs) that launch most national security satellites.  ULA’s Delta IV is the other.  SpaceX is diligently trying to be certified to compete against ULA for those launches.

At a subcommittee hearing last month, ULA and the Air Force laid out their concerns and the subcommittee clearly heard them.  In the draft text, expected to be approved at subcommittee level tomorrow and by the full committee next week, even more flexibility would be provided by allowing the Secretary of Defense (SecDef) simply to invoke “national security interests” as a reason for waiving the current law’s provisions and certifying those interests to the relevant congressional committees. 

The draft also clarifies that the prohibition on buying RD-180s applies to engines ordered pursuant to the December 18, 2013 contract between ULA and the Air Force regardless of whether payment was made prior to February 1, 2014.  Last year’s law exempted engines ordered under that contract, but DOD lawyers were interpreting the law to mean that payment had to have been made by February 1, 2014, as opposed to the engines being options under that contract.

The draft also would change section 1604 of last year’s law that authorizes $220 million to build a U.S. alternative to the RD-180 engine, but specifically not to develop a new launch vehicle.  The draft language clarifies that it is permissible to use the funds for “the necessary interfaces” to a launch vehicle.   It also adds language requiring the SecDef to use a “streamlined acquisition approach, including tailored documentation and review processes.”

In addition, the draft addresses the “EELV Launch Capabilities” (ELC) contract that the Air Force has with ULA that covers infrastructure and engineering services.  The Air Force pays ULA for launches under two contracts:  the cost-plus-incentive-fee ELC contract and a fixed-price EELV Launch Services (ELS) contract that covers hardware.   Critics call the approximately $1 billion per year ELC a subsidy, but ULA and the Air Force defend it as a mechanism adopted when ULA was created in 2006 to assure that the Air Force could launch its satellites whenever needed.  Air Force and ULA officials concede, however, that times have changed and ELC will not be repeated in future contracts.  The draft report language would, indeed, make that reality, although the language is quite generous saying that the ELC contract must be discontinued by the latter of the dates when obligations under the current contract are met (the contract is through 2017) or December 31, 2020, and the SecDef can waive the provision entirely for national security reasons. 

The draft contains other language that could be construed as supporting either ULA or SpaceX.  For example, it calls for a 10-year acquisition strategy for the EELV program that requires competition, but also ensures that any contract takes into account “the effect of all Federal contracts entered into and any assistance provided” to the competitors.   SpaceX argues that the ELC contract is a subsidy to ULA, but others points out that SpaceX has benefited from its Space Act Agreements and contracts with NASA for development of the Falcon 9 rocket under the commercial cargo and commercial crew programs and those should be taken into account, too.

The draft addresses a range of other national security space issues as well, including the following:

• Limits the availability of funds for a new Weather Satellite System until the SecDef briefs certain congressional committees on a plan to address DOD cloud characterization and theater weather imagery needs, and the Chairman of the Joint Chiefs of Staff certifies to Congress that the plan will not negatively affect commanders of combatant commands and meet those requirements.   This provision addresses concerns that DOD may become dependent on Chinese or Russian geostationary weather satellites for weather data over the Middle East currently provided by a European satellite that is scheduled for decommissioning next year and will not be replaced. At a March 25 hearing, HASC Strategic Forces subcommittee chairman Mike Rogers (R-AL) said he is concerned DOD is “headed down a path with significant risk.  We will not allow critical capabilities our warfighters rely on to be based out of Moscow or Beijing” and Rep. Doug Lamborn (R-CO) queried DOD Deputy Assistant Secretary for Space Policy Doug Loverro on the issue.  Loverro replied that DOD does not know how it will address the gap in European coverage right now, but is working with the U.S. National Oceanic and Atmospheric Administration (NOAA) on the issue.  NOAA manages the U.S. civil weather satellite program and has cooperative agreements with Europe.
• Requires an evaluation of the ability of the Space Based Infrared System (SBIRS) to detect, track and target, or develop a capability to do so, against the full range of threats to the United States and its allies.
• Modifies language in last year’s law concerning DOD’s pilot project for acquisition of commercial satellite communication services.
• Requires the SecDef to designate a senior DOD official to procure wideband satellite communications unless the procurement is required to meet an urgent national need, and to provide a plan to meet DOD’s requirements for satellite communications, including identification of roles and responsibilities.
• Amends chapter 9 of Title 10 of the U.S. Code to establish a unified major force program for national security space programs and requires an assessment of the budget needed for those programs for 2017-2020 and a report on how to carry them out.
• Requires the SecDef and the Director of National Intelligence (DNI) to develop and implement a space science and technology strategy.
• Requires briefings on the utility and impacts of combatant commanders directly tasking commercial imagery satellites.
• Requires a briefing on commercial space-based environmental monitoring capabilities and their utility in meeting DOD requirements.
• Requires an evaluation of national security space and missile test ranges and infrastructure.
• Recommends that DOD accelerate the development and fielding of M-code capable GPS user terminals.
• Requires a briefing on the potential value and advisability of establishing a temporary advisory team for the GPS Next Generation Operational Control Segment (OCX).
• Requires a briefing on the potential to accelerate the current increment of the Joint Space Operations Center Mission System (JMS) program.
• Requires a briefing from the SecDef on DOD’s requirements for a backup positioning, navigation and timing system to GPS.
• Requires a briefing on acquisition practices for national security space programs.
• Requires the SecDef, the DNI and the Director of the White House Office of Management and Budget (OMB) to submit a plan to strengthen national security space stewardship, leadership, management and organization while streamlining decision-making and limiting unnecessary bureaucracy.

Subcommittee markup is at noon tomorrow, April 23.  Full committee markup is on April 29.