SPACE SCIENCE AND THE INTERNATIONAL TRAFFIC IN ARMS REGULATIONS

Summary of a Workshop

Margaret G. Finarelli, Rapporteur

Joseph K. Alexander, Rapporteur

Space Studies Board

Division on Engineering and Physical Sciences

NATIONAL RESEARCH COUNCIL OF THE NATIONAL ACADEMIES

THE NATIONAL ACADEMIES PRESS

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Margaret G. Finarelli, Rapporteur Joseph K. Alexander, Rapporteur Space Studies Board Division on Engineering and Physical Sciences

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THE NATIONAL ACADEMIES PRESS 500 Fifth Street, N.W. Washington, DC 20001 NOTICE: The project that is the subject of this report was approved by the Governing Board of the National Research Council, whose members are drawn from the councils of the National Academy of Sciences, the National Academy of Engineering, and the Institute of Medicine. This study was supported by Contract NASW-01001 between the National Academy of Sciences and the National Aeronautics and Space Administration. Any opinions, findings, conclusions, or recommendations expressed in this publication are those of the authors and do not necessarily reflect the views of the agencies that provided support for the project. International Standard Book Number-13: 978-0-309-11609-1 International Standard Book Number-10: 0-309-11609-0 Copies of this report are available free of charge from: Space Studies Board National Research Council 500 Fifth Street, N.W. Washington, DC 20001 Additional copies of this report are available from the National Academies Press, 500 Fifth Street, N.W., Lockbox 285, Washington, DC 20055; (800) 624-6242 or (202) 334-3313 (in the Washington metropolitan area); Internet, http://www.nap.edu. Copyright 2008 by the National Academy of Sciences. All rights reserved. Printed in the United States of America

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The National Academy of Sciences is a private, nonprofit, self-perpetuating society of distinguished scholars engaged in scientific and engineering research, dedicated to the furtherance of science and technology and to their use for the general welfare. Upon the authority of the charter granted to it by the Congress in 1863, the Academy has a mandate that requires it to advise the federal government on scientific and technical matters. Dr. Ralph J. Cicerone is president of the National Academy of Sciences. The National Academy of Engineering was established in 1964, under the charter of the National Academy of Sciences, as a parallel organization of outstanding engineers. It is autonomous in its administration and in the selection of its members, sharing with the National Academy of Sciences the responsibility for advising the federal government. The National Academy of Engineering also sponsors engineering programs aimed at meeting national needs, encourages education and research, and recognizes the superior achievements of engineers. Dr. Charles M. Vest is president of the National Academy of Engineering. The Institute of Medicine was established in 1970 by the National Academy of Sciences to secure the services of eminent members of appropriate professions in the examination of policy matters pertaining to the health of the public. The Institute acts under the responsibility given to the National Academy of Sciences by its congressional charter to be an adviser to the federal government and, upon its own initiative, to identify issues of medical care, research, and education. Dr. Harvey V. Fineberg is president of the Institute of Medicine. The National Research Council was organized by the National Academy of Sciences in 1916 to associate the broad community of science and technology with the Academy’s purposes of furthering knowledge and advis- ing the federal government. Functioning in accordance with general policies determined by the Academy, the Council has become the principal operating agency of both the National Academy of Sciences and the National Academy of Engineering in providing services to the government, the public, and the scientific and engineering communities. The Council is administered jointly by both Academies and the Institute of Medicine. Dr. Ralph J. Cicerone and Dr. Charles M. Vest are chair and vice chair, respectively, of the National Research Council. www.national-academies.org

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OTHER REPORTS OF THE SPACE STUDIES BOARD Assessment of the NASA Astrobiology Institute (2007) An Astrobiology Strategy for the Exploration of Mars (SSB with the Board on Life Sciences [BLS], 2007) Building a Better NASA Workforce: Meeting the Workforce Needs for the National Vision for Space Exploration (SSB with the Aeronautics and Space Engineering Board [ASEB], 2007) Decadal Science Strategy Surveys: Report of a Workshop (2007) Earth Science and Applications from Space: National Imperatives for the Next Decade and Beyond (2007) Exploring Organic Environments in the Solar System (SSB with the Board on Chemical Sciences and Technology, 2007) Grading NASA’s Solar System Exploration Program: A Midterm Review (2007) The Limits of Organic Life in Planetary Systems (SSB with BLS, 2007) NASA’s Beyond Einstein Program: An Architecture for Implementation (SSB with the Board on Physics and Astronomy [BPA], 2007) Options to Ensure the Climate Record from the NPOESS and GOES-R Spacecraft: A Workshop Report (2007) A Performance Assessment of NASA’s Astrophysics Program (SSB with BPA, 2007) Portals to the Universe: The NASA Astronomy Science Centers (2007) The Scientific Context for Exploration of the Moon (2007) An Assessment of Balance in NASA’s Science Programs (2006) Assessment of NASA’s Mars Architecture 2007-2016 (2006) Assessment of Planetary Protection Requirements for Venus Missions: Letter Report (2006) Distributed Arrays of Small Instruments for Solar-Terrestrial Research: Report of a Workshop (2006) Issues Affecting the Future of the U.S. Space Science and Engineering Workforce: Interim Report (SSB with ASEB, 2006) Review of NASA’s 2006 Draft Science Plan: Letter Report (2006) The Scientific Context for Exploration of the Moon—Interim Report (2006) Space Radiation Hazards and the Vision for Space Exploration (2006) The Astrophysical Context of Life (SSB with BLS, 2005) Earth Science and Applications from Space: Urgent Needs and Opportunities to Serve the Nation (2005) Extending the Effective Lifetimes of Earth Observing Research Missions (2005) Preventing the Forward Contamination of Mars (2005) Principal-Investigator-Led Missions in the Space Sciences (2005) Priorities in Space Science Enabled by Nuclear Power and Propulsion (SSB with ASEB, 2005) Review of Goals and Plans for NASA’s Space and Earth Sciences (2005) Review of NASA Plans for the International Space Station (2005) Science in NASA’s Vision for Space Exploration (2005) Limited copies of these reports are available free of charge from: Space Studies Board National Research Council The Keck Center of the National Academies 500 Fifth Street, N.W., Washington, DC 20001 (202) 334-3477/ssb@nas.edu www.nationalacademies.org/ssb/ssb.html NOTE: Listed according to year of approval for release, which in some cases precedes the year of publication. iv

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PLANNING COMMITTEE FOR SPACE SCIENCE ACTIVITIES AND ITAR: A WORKSHOP TO PROMOTE DIALOGUE NORMAN P. NEUREITER, American Association for the Advancement of Science, Chair SPENCE M. (SAM) ARMSTRONG, National Aeronautics and Space Administration (retired) DANIEL N. BAKER, University of Colorado RETA F. BEEBE, New Mexico State University CLAUDE R. CANIZARES, Massachusetts Institute of Technology JOHN R. CASANI, Jet Propulsion Laboratory JACQUELINE N. HEWITT, Massachusetts Institute of Technology RAPPORTEUR MARGARET G. FINARELLI, George Mason University STAFF JOSEPH K. ALEXANDER, Senior Program Officer CARMELA J. CHAMBERLAIN, Program Associate CATHERINE A. GRUBER, Assistant Editor VICTORIA SWISHER, Research Associate SANDRA WILSON, Program Assistant 

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SPACE STUDIES BOARD LENNARD A. FISK, University of Michigan, Chair A. THOMAS YOUNG, Lockheed Martin Corporation (retired), Vice Chair SPIRO K. ANTIOCHOS, Naval Research Laboratory DANIEL N. BAKER, University of Colorado STEVEN J. BATTEL, Battel Engineering CHARLES L. BENNETT, Johns Hopkins University ELIZABETH R. CANTWELL, Los Alamos National Laboratory ALAN DRESSLER, The Observatories of the Carnegie Institution JACK D. FELLOWS, University Corporation for Atmospheric Research FIONA A. HARRISON, California Institute of Technology TAMARA E. JERNIGAN, Lawrence Livermore National Laboratory KLAUS KEIL, University of Hawaii MOLLY MACAULEY, Resources for the Future BERRIEN MOORE III, University of New Hampshire KENNETH H. NEALSON, University of Southern California JAMES PAWELCZYK, Pennsylvania State University SOROOSH SOROOSHIAN, University of California, Irvine RICHARD H. TRULY, National Renewable Energy Laboratory (retired) JOAN VERNIKOS, Thirdage LLC JOSEPH F. VEVERKA, Cornell University WARREN M. WASHINGTON, National Center for Atmospheric Research CHARLES E. WOODWARD, University of Minnesota GARY P. ZANK, University of California, Riverside MARCIA S. SMITH, Director vi

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Preface The International Traffic in Arms Regulations (ITAR) control defense trade as called for by 22 USC 2788 of the Arms Export Control Act1 and by Executive Order 11958 as amended. ITAR includes the U.S. Munitions List (USML), which specifies categories of defense articles and services that are to be regulated. The Strom Thurmond National Defense Authorization Act of FY 19992 placed all space satellites on the USML; Category XV, “Space- craft Systems and Associated Equipment,” explicitly designates scientific satellites, and other types of satellites, as defense articles and also includes ground control stations for satellite telemetry, radiation-hardened microelectronic circuits, and other components of spacecraft systems. ITAR covers not only hardware of the types noted above but also technical data3 and defense services (for example, furnishing of technical data or training). Under ITAR, an “export” includes a defense article taken out of the United States as well as the act of “disclosing (including oral or visual disclosure) or transferring technical data to a foreign person, whether in the United States or abroad.” It also includes a defense service performed “on behalf of, or for the benefit of, a foreign person, whether in the United States or abroad.” Except in a few instances as defined in ITAR, all transfers of U.S. defense articles or services to foreign persons require a case-by-case review and preauthorization by the Department of State. In 2002, after expressions of concern by the space-science and university communities, the State Department amended ITAR so that accredited U.S. institutions of higher learning were excluded from having to obtain ITAR licenses for interacting with persons in some other countries and with some non-U.S. persons in this country for the purpose of conducting fundamental research. ITAR defines fundamental research as “basic and applied research in science and engineering where the resulting information is ordinarily published and shared broadly within the scientific community.”4 Significantly, the licensing exclusion in ITAR is applicable only to fundamental research conducted by “accredited institutions of higher learning.” However, it has not been clear whether the 2002 amendments are providing academic institutions involved in 1The Arms Export Control Act, 22 USC § 2778 (1979), Priv. L. No. 96-72, 93 Stat 503 (September 29, 1979), 22 CFR §§ 120-130 (2002), available at http://www.access.gpo.gov/nara/cfr/waisidx_01/22cfr121_01.html (April 1, 2001). 2U.S. Congress, Public Law 105-261, Section 1513, 105th Congress, 1998. 3Section 120.10 of ITAR (U.S. Congress, International Traffic in Arms Regulations, Section 120.10, April 1, 2007, Washington, D.C.) describes technical data as information that is necessary for the design, development, production, manufacture, assembly, operation, repair, testing, maintenance, or modification of defense articles. 4U.S. Congress, International Traffic in Arms Regulations, Section 120.11 (8), April 1, 2007, Washington, D.C. vii

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viii PREFACE space science activities with substantial relief from the effects of ITAR regulations. Uncertainty about the defini- tion of fundamental research, especially as it pertains to space projects or proposals, has been cited as a cause of problems or concerns in the space science community. There is confusion about whether results need to have been published or can simply be intended to be published. Many space science activities conducted through academic institutions involve collaboration with private companies and other parties that are not “accredited institutions of higher learning” and thus do not appear to be covered under the fundamental-research exclusion in ITAR. That the regulations apply differently to universities, national laboratories, government, and industry has led to confusion as to what institutions must do to comply with ITAR. There is also much uncertainty about what types of space- project-related information can be provided to non-U.S. project participants without a license and what types can be transmitted to foreign students in an academic setting. Furthermore, for aspects of space research that do not meet the fundamental-research exclusion or do not involve U.S. institutions of higher learning (such as activities performed by industry contractors and federal laboratories working on space science satellites), institutions must obtain export licenses or technical-assistance agreements from the Department of State to work with non-U.S. partners on cooperative space science missions or to discuss mission plans with foreign nationals. The process for obtaining licenses and technical-assistance agreements and the administrative work necessary to ensure ITAR compliance in project implementation can introduce substantial additional costs and time requirements for space projects. It is especially notable, moreover, that some violations of ITAR are punishable criminal offenses. Because of the many uncertainties noted above about the applicability of ITAR, institutions tend to interpret the regulations conservatively to be on the safe side of potential legal difficulties and thus often impose upon themselves burdens that might not be necessary. In recognition of concerns in the space research community regarding these issues, the NASA associate admin- istrator for science, Mary Cleave, wrote to Space Studies Board (SSB) chair Lennard Fisk on November 27, 2006, to request that the SSB organize a workshop on the implications of ITAR for space science. The purpose of the workshop was to reopen a discussion among State Department regulators and policymakers, academic researchers and faculty, ITAR officials, NASA officials, and other interested parties to explore concerns about ITAR’s effects on space science activities. The workshop was convened at the National Academies’ Constitution Avenue Building in Washington, D.C., on September 12-13, 2007, with the following goals: • Identify concrete problems that academic, government, and industry space science researchers, faculty, managers, and institutions face as a result of ITAR regulations. • Determine the extent to which those problems are the result of implementation of the regulations or of misunderstanding of what is required by various parties. • Identify possible steps for addressing or further examining the problems. The workshop was organized by an appointed planning committee (Appendix A) that developed an agenda and invited speakers and other participants (see Appendix B for the list of workshop participants). More than 60 people attended the workshop. They were drawn from the space science community; export-control officials in academe, national laboratories, industry, and government, including the State Department, NASA, and the Depart- ment of Commerce; NASA program representatives; congressional and Office of Science and Technology Policy staff; representatives of professional societies; and the relevant policy community. The workshop began with brief comments that covered recent developments, current status, and likely future directions from the perspectives of the various stakeholder sectors noted above. In three sessions that followed, par- ticipants discussed a collection of case studies that focused on ITAR issues relevant to activities within the United States, interactions with parties outside the United States, and requirements for obtaining technical-assistance agreements and licenses. The fourth and fifth workshop sessions were devoted, respectively, to splinter-group discussions of key issues in more detail and to a general summary and synthesis of the major ideas that emerged from the workshop. The complete agenda of the workshop is presented in Appendix C. This report presents a summary of the workshop discussions. It is not intended to represent a consensus of the views of the workshop participants.

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Acknowledgments This report has been reviewed in draft form by persons chosen for their diverse perspectives and technical expertise in accordance with procedures approved by the National Research Council’s Report Review Committee. The purpose of the independent review is to provide candid and critical comments that will assist the institution in making its published report as sound as possible and to ensure that the report meets institutional standards for objectivity, evidence, and responsiveness to the study charge. The review comments and draft manuscript remain confidential to protect the integrity of the deliberative process. We thank the following for their review of this report: David L. Chenette, Lockheed Martin Advanced Technology Center, Richard P. Seligman, California Institute of Technology, Debbie Shaffer, Southwest Research Institute, Gregory M. Suchan, Commonwealth Consulting Corporation, and Roy B. Torbert, University of New Hampshire. Although the reviewers listed above have provided many constructive comments and suggestions, they were not asked to endorse the statements presented in the report, nor did they see the final draft of the report before its release. The review of the report was overseen by Jack D. Fellows, University Corporation for Atmospheric Research. Appointed by the National Research Council, he was responsible for making certain that an independent examination of the report was carried out in accordance with institutional procedures and that all review com- ments were carefully considered. Responsibility for the final content of the report rests entirely with the authors and the institution. ix

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Contents SUMMARY 1 1 BACKGROUND 4 International Traffic in Arms Regulations, 4 The Fundamental-Research Exclusion and National Security Decision Directive 189, 5 Issues Motivating the Workshop, 6 2 PERSPECTIVES ON RECENT DEVELOPMENTS AND CURRENT IMPLEMENTATION OF 8 INTERNATIONAL TRAFFIC IN ARMS REGULATIONS 3 OVERARCHING ISSUES 13 Contrasting Institutional Perspectives, 13 Fundamental Questions About International Traffic in Arms Regulations, 14 Generic Problems and Unintended Consequences, 14 Outlook, 14 4 PROBLEMS ARISING FROM THE IMPLEMENTATION OF INTERNATIONAL TRAFFIC IN 16 ARMS REGULATIONS Effects on International Science, 16 Effects on Fundamental Roles of Universities, 17 5 OPPORTUNITIES FOR NEAR-TERM ACTIONS AND IMPROVEMENTS 20 Government Actions and Improvements, 20 Scientific Community Actions and Improvements, 22 xi

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xii CONTENTS APPENDIXES A Biographies 25 B Workshop Participants 28 C Workshop Agenda 31