Space Science and the International Traffic in Arms Regulations: Summary of a Workshop (2008)

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5 Opportunities for Near-Term Actions and Improvements The third and fourth key themes evident in workshop discussions concerned opportunities for near-term actions by the government and by the scientific community, respectively. This chapter summarizes the ideas that emerged from splinter-group deliberations and from related discussions that occurred earlier in the workshop. GOVERNMENT ACTIONS AND IMPROVEMENTS The ideas for government actions reflect a general conclusion that considerable confusion now pervades the space-research community and that a major cause of the confusion is ambiguities in the International Traffic in Arms Regulations (ITAR). Participants suggested that short-term actions focus on steps that could lead to clarifica- tion of the regulations, including a set of specific action items, as outlined below. More Information and Training for the Regulated Community Participants saw opportunities to enhance and expand the flow of information about ITAR to the scientific community and thereby help the community to understand ITAR requirements and processes better. First, the Department of State Directorate of Defense Trade Controls (DDTC) has a Web site that provides a great deal of information about the directorate and how to interact with it. There was support for having DDTC post all commodity-jurisdiction (CJ) rulings on the Web site. CJ determinations are issued in response to inquiries from potential license applicants to establish whether an item or service is covered by the U.S. Munitions List (USML) and therefore subject to export controls under ITAR. They may also be used for consideration of redesignation of an item or service covered by the USML, which could result in movement of the item or service to the licensing jurisdiction of the Department of Commerce (DOC). Workshop participants felt that creating an element of transpar- ency by posting all CJ determinations would afford the research community a much better understanding of what is likely to be subject to ITAR constraints. The DDTC Web site provides answers to a small sample of frequently asked questions, but workshop participants felt that the list should be expanded to provide greater, more general- ized guidance to the outside community. There also was enthusiasm for engaging representatives of the research community in identifying key subjects to be covered by new questions and answers (see below). See http://pmddtc.state.gov/. 20 

OPPORTUNITIES FOR NEAR-TERM ACTIONS AND IMPROVEMENTS 21 Second, participants argued that training programs are important and that the existing array of training oppor- tunities should be expanded and improved. Members of the splinter group were particularly interested in the idea of training programs for both scientists and institutional officials that would be hosted by the National Aeronautics and Space Administration (NASA) and conducted on a state or regional basis. Clarification and Harmonization of Key Definitions and Concepts As already noted, many workshop participants felt that a lack of clarity in the language of the regulations, particularly with respect to the definitions of key terms and concepts, was a serious problem. The splinter group highlighted several subjects on which explicit clarification is needed. Among them are the definition of defense services and its nexus to the sharing of data already in the public domain, whether information is in the public domain only if it has already been published or if it is in the public domain if there is an intent to publish, and ITAR’s limitation of the definition of fundamental research such that it only covers work conducted at a university. Workshop participants called attention to the fact that there are important differences in some key defini- tions between ITAR (under the State Department) and the Export Administration Regulations (EAR; under DOC) and urged that definitions in the two sets of regulations be harmonized. Examples of the differences are the following: • Under EAR, research at federally funded research and development centers and research conducted by scientists or engineers working for a business entity can be considered fundamental research if the other conditions for fundamental research are met. However, ITAR refers to research conducted only at “accredited institutions of higher learning.” • The language of ITAR indicates that the fundamental-research exclusion applies to information “which is published” and is generally accessible or available to the public. However, EAR exempts information that is publicly available, that is already published or will be published, or that arises during or results from fundamental research. • EAR explains that no license is needed for classroom or laboratory teaching of foreign nationals in U.S. uni- versities if the information is in the public domain. ITAR handles teaching by saying that “information ­concerning general scientific, mathematical, or engineering principles commonly taught in schools, colleges, and universities, or information in the public domain” is excluded from the kinds of technical data that are subject to controls. • An EAR exclusion is not lost when a university accepts a temporary delay of publication for prepublication review for proprietary or patent-protection purposes, but ITAR does not contain such language, and so whether this safe haven is available under ITAR is ambiguous. • An EAR exclusion is not lost in a federally funded project when a university accepts specific national- security controls if controls are not violated in exporting the controlled information, but under ITAR the exclusion is lost in a federally funded project if such controls are accepted. • A supplement to EAR provides extensive explanatory questions and answers regarding what is not ­subject to EAR in the context of university and research laboratory activities. There is no such elaboration in ITAR documents. In general, many participants seemed to find the EAR treatment of those issues not only clearer but also more consistent with recognition of the needs of scientific research. Streamlining and Simplification of Regulatory Requirements Workshop participants called attention to the need for streamlining and simplification of ITAR or ITAR pro- cedures. Examples of revisions worthy of consideration are the following: • For activities conducted for the Department of Defense, there is a foreign military-sales exemption whereby commercial exports are exempt from the licensing requirements of ITAR if they are in furtherance of a program 

22 SPACE SCIENCE AND THE INTERNATIONAL TRAFFIC IN ARMS REGULATIONS between a U.S. government agency and a foreign government (a government-to-government program). Workshop participants argued that a similar exemption should be granted to NASA so that exports by U.S. entities that are in support of an international collaborative space project that is being conducted under a formal government-to- government agreement can be excluded from ITAR licensing requirements. • Participants cited numerous examples of cases in which a scientific research instrument or instrument sub- system was designed and built by a foreign partner, delivered to the United States for testing or integration into a scientific satellite, and later returned (“exported”) to the foreign instrument team for calibration or repairs before launch. Export licenses were required in such cases even though the equipment being “exported” originally came into the United States from the overseas partner. Participants argued that such a requirement defied logic and added delays and administrative burdens without serving the fundamental purpose of export controls, and they argued for approval of exemptions for such cases. Likewise, participants supported a repair-and-return exemption that would allow a U.S. company that purchases and imports an item from a foreign entity to return (“export”) an unmodified imported item to the original manufacturer for repair or recalibration without having to get a license.  • Several participants called attention to problems that have stemmed from misconceptions among foreign collaborators about the purpose of a technical-assistance agreement (TAA). In particular, many foreign collabora- tors try to restructure the agreements into funding agreements and thereby cause unnecessary delays in completing the approval process. Participants proposed standardization of the TAA format to use a DDTC-approved template and educational program that could alleviate some of the problems. SCIENTIFIC COMMUNITY ACTIONS AND IMPROVEMENTS Workshop participants agreed that the space-research community—including scientists and administrators at universities, national laboratories, and industry—shares responsibility for helping to solve problems that the workshop identified, and they suggested specific near-term actions to which the community should be prepared to make a commitment. The opportunities were tied to facilitating communication within the research community and between the research community and the government. Facilitating the Flow of Information to and Within the Research Community The workshop discussions often touched on the potential value of the State Department advisory opinions and “frequently asked questions” that could be posted on the DDTC Web site. DDTC officials indicated that they would welcome specific questions from the research community, and participants indicated interest in preparing such questions in the near future so that State Department responses could be made available. Research-community representatives were especially eager to obtain clearer guidance on whether the conduct of fundamental research depends on the nature of the activity rather than the location of the activity, that is, whether fundamental research can be carried out in all types of laboratories or only in university laboratories; whether work has to already have been published to qualify for being in the public domain, or whether an intention or attempt to publish is sufficient; and what is meant by permanent abode in the “bona fide employees” exemption for universities. Participants proposed to establish a working group of university, industry, and federal laboratory representa- tives—possibly under the aegis of the National Research Council—to facilitate improved communication. Such a working group’s responsibilities might include • Encouraging interinstitutional collaboration, sharing expertise, and developing methods for streamlining ITAR processes. • Identifying a sponsor and developing the agenda for an annual meeting to be held with the State Department. • Creating an Internet mailing list to share relevant information within the research community. 

OPPORTUNITIES FOR NEAR-TERM ACTIONS AND IMPROVEMENTS 23 Facilitating Government Access to Ideas and Input from the Scientific Community In addition to suggestions for actions to promote improved communication to and within the research com- munity, there were specific proposals for ways to improve research-community input to the government. DDTC representatives indicated an interest in having university participation in the DDTC’s Defense Trade Advisory Group (DTAG), and this idea was embraced enthusiastically at the workshop. Representatives of the multi­ university Council on Governmental Relations and the Association of American Universities indicated an interest in receiving names of potential DTAG research-community members and sending them to DDTC. An early task for new ­university-based DTAG members might be to work with the State Department on possible revisions of the USML. Another immediate task for the research community, which would involve a somewhat longer-range target, would be to begin to develop a clear and compelling case for the basis and character of future changes in ITAR and to prepare to disseminate the results of that effort broadly across the government. Such a case would include factual descriptions of the extent to which the current application of ITAR to space science helps to reach national- security goals and articulation of the unintended consequences of current legislation. Documenting the effect on universities of delays in licensing and TAA approvals was seen as particularly important, as was documentation of any damage done to national security due to university disclosures (none was known to conference attendees). If a window of opportunity for change were to open in the near future, the first one or two requested changes in ITAR should be defined and ready for immediate action; additional requests should be prepared as time permits. Participants saw a role for relevant university and industry associations in this effort. Finally, participants called attention to the need to follow up on university efforts to sustain discussion with government officials about the effects on universities of application of the Defense Federal Acquisition Regula- tion Supplement clause 252.204-7000 prepublication approval clause in government research contracts. That was cited as a subject in which university collaboration with industry is needed to ensure that the conduct and results of fundamental space science research remain outside the scope of ITAR control. University participants argued that including a mandatory contract requirement for approval before publication may endanger the fundamental- research exclusion and that discussions on removing the approval requirement for universities are needed.