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

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4 Problems Arising from the Implementation of International Traffic in Arms Regulations Before the workshop, the National Research Council staff solicited brief case-study summaries that were intended to illustrate a wide array of space scientists’ and scientific institutions’ experiences with the implemen- tation of the International Traffic in Arms Regulations (ITAR) and to highlight problems or concerns that might be explored during the workshop. The planning committee selected 24 cases and provided them to workshop participants in advance, and the cases then served as starting points to look at ITAR from three, often interrelated perspectives: activities inside the United States, interactions with parties outside the United States, and policies and processes for obtaining licenses and technical-assistance agreements (TAAs). Three case-study sessions and four later splinter-group sessions drew out a number of key themes and ideas. Two of the themes were the effects of the implementation of ITAR on international scientific cooperation and on the roles of universities, and this chapter summarizes views from those two perspectives. Other themes concerned potential near-term actions for the government and for the scientific community that offered the promise of medi- ating identified problems, and those ideas are summarized in Chapter 5. EFFECTS ON INTERNATIONAL SCIENCE One splinter group drew on the discussions during earlier sessions of the workshop to synopsize the effects of ITAR on international scientific cooperation and science as a global endeavor. Those effects generally were in three categories, as summarized below. Controls at Odds with International Character of Science An important premise that was mentioned often during the workshop was that science is intrinsically an inter- national enterprise, whether conducted by private-sector organizations or by academic institutions.  Unlike ­industry, universities are inherently open in their operations. Participants noted that advances in space science benefit sub- stantially from the diversity and expertise of foreign researchers at universities and national laboratories and from academe’s open environment for the exchange of information. However, ITAR requirements pose obstacles for The point is also emphasized in a new National Research Council report, Science and Security in a Post 9/11 World: A Report Based on Regional Discussions Between the Science and Security Communities (The National Academies Press, Washington, D.C., 2007). 16 

PROBLEMS ARISING FROM THE IMPLEMENTATION OF INTERNATIONAL TRAFFIC IN ARMS REGULATIONS 17 international participation in research at U.S. institutions. An important side effect of the obstacles is that interna- tional interest is diverted away from the United States as a research partner to alternative foreign providers, such as China, Russia, and India. The experiences of other space agencies (such as the European Space Agency and the Japan Aerospace Exploration Agency) in dealing with the United States on ITAR have led to concerns abroad over collaboration with the United States and have stimulated policies that encourage foreign industry to avoid collaboration and to become autonomous in space projects to avoid the burdens imposed by ITAR. Diminishing U.S. Access to Foreign Expertise Participants argued that the current ITAR regime, contrary to the intent of export-control regulations, serves as a detriment to U.S. national interests in at least two ways. First, there is a “reverse brain drain” effect in which talented U.S.-trained scientists and engineers are avoiding what they perceive as an overregulated U.S. science market. Scientific and technical professionals are reluctant to become engaged in space research, because they find the effort to deal with ITAR frustrating or even insurmountable. Second, the administrative burden, cost, and unpredictable delays leading to loss of contracts to international competitors adversely affect the entrepreneurial small-business base of U.S. third-tier suppliers that are important elements of the U.S. aerospace industry. During the workshop, some participants noted that ITAR is having a serious effect on foreign cooperation with U.S. scientists, especially because of lack of clarity in the regulations, inconsistency in their application, and delays associated with approval of TAAs. Those problems are expected to worsen as projects, such as the James Webb Space Telescope and the Mars Surface Lander, become more ambitious and complex. International participants in the workshop went so far as to speculate that without high-level U.S. government relief on ITAR, the develop- ment of highly integrated infrastructure programs, such as those envisioned for human space exploration, will be impossible. Handicaps on Effective Space-Mission Designs In addition to concerns about effects of ITAR on science and technology in the broad sense, speakers noted more specific effects on individual projects. Participants believe that ITAR constraints compromise the capabilities and scientific return of individual space missions by making it difficult for mission science teams to take advantage of the best skills and resources in participating partners’ countries. For example, teams involved in international projects often devise less-than-optimal spacecraft test plans that minimize the exchange of information rather than maximize the chances of mission success, thereby compromising instrument development and testing. ITAR requirements also increase mission cost, technical risk, and schedule uncertainties by restricting the flow of critical but routine technical data required to implement scientific investigations.  EFFECTS ON FUNDAMENTAL ROLES OF UNIVERSITIES A second splinter group considered the prior discussions during the workshop to synopsize the effects of ITAR on universities’ fundamental roles in education, development of the national workforce, and nurturing of scientific and technologic innovation and advancement. Those effects are generally in four categories, as sum- marized below. An example of the consequences of such a policy is the failure of a National Aeronautics and Space Administration (NASA) science instru- ment on the Japanese Suzaku (formerly Astro-E2) mission. According to the NASA inspector general’s review of risk mitigation associated with international agreements, “NASA’s policy was unclear about early collaboration to identify data to be shared with a foreign partner and the international agreements we reviewed did not require joint participation in reviews, integration, and testing related to mission success. . . . NASA science projects lacked adequate assurance that sufficient information was available to properly integrate instrument components or an instrument with the spacecraft.” (NASA, NASA Can Improve Its Mitigation of Risks Associated with International Agreements with Japan for Science Projects, Audit Report No. IG-06-020, Office of the Inspector General, NASA, Washington, D.C., September 12, 2006, page ii.) 

18 SPACE SCIENCE AND THE INTERNATIONAL TRAFFIC IN ARMS REGULATIONS Compromising the Quality of Student Experience Workshop participants indicated that ITAR has the potential to change the character of space studies at univer- sities. Actions to implement ITAR can compromise a university’s ability to educate all its students simply because of the many foreign students at the institution, and that effect is seriously at odds with other U.S. government policies for encouraging foreign students at U.S. universities. It can also create a move toward insularity in science at universities. University representatives were especially concerned about the effects of discrimination against foreign students because of their nationality and about the effects of situations in which U.S. students would be unable to interact with their non-U.S. colleagues, which would deprive all students of their opportunity for a full education and for development of a richly international network of future colleagues. Effects of Regulatory Uncertainties on Faculty and Staff University representatives also called attention to the many ambiguities in ITAR and in requirements for how the regulations are implemented. An effect of the lack of clarity is confusion and uncertainty about when and how ITAR is applicable. The situation is exacerbated by the fact that the Department of State makes decisions on the applicability of ITAR case by case, avoiding any explanations that are generalizations that might facilitate the research community’s ability to extrapolate the results of one case to another. Examples of uncertainty included not knowing whether a university must be the lead institution in a collaborative partnership in order to use its fundamental-research exclusion, not knowing whether use of space-project-specific materials to teach a class that includes non-U.S. students qualifies for an exemption or is controlled as a defense service, and not knowing how broadly to interpret the terms “ordinarily publishable” or “is published” when applying to scientific and techni- cal information the criterion for broad public availability. Those examples and others like them might appear to involve arcane details, but they are significant when a university and its faculty members are trying to understand whether to incur the burden of applying for licenses or TAAs and whether their actions might be vulnerable to criminal or civil prosecution under ITAR. Participants cited several examples of the personal effects of uncertainties like those cited above. Many partici- pants cited high levels of frustration among their colleagues with the complexities and delays inherent in ITAR—a situation that they claim is discouraging careers in teaching and research in space-related fields. As a result of ambiguities inherent in ITAR and the serious penalties for failure to comply, universities and individual researchers tend to be extremely conservative in their interpretations of ITAR requirements and thus in their actions. That has led to the “creep” of ITAR and its chilling effects on public-domain information and non- cutting-edge technologies. Such conservatism may be desirable from the perspective of regulators, but it leads to unintended consequences when self-imposed restrictions might sometimes be more constraining than those the regulations themselves would impose. Costs and Administrative Burdens University representatives noted that the cost of ensuring compliance with ITAR is high. That requirement creates a significant unfunded mandate for universities, because they operate with capped overhead costs and must cover the added cost of administering ITAR requirements within an already-tight envelope. Elements of the cost at universities include programs to educate contracting and grants officers and faculty members about ITAR requirements and processes, satisfactorily documenting situations in which a university seeks to operate within the fundamental-research exclusion, supporting negotiations with State Department officials for approvals for exports and interactions with non-U.S. persons, and the substantial costs of delays in securing approval for activi- ties that fall under ITAR. Although ITAR costs that come with a university’s participating in space research are large, university representatives noted that the long-term effects of simply abandoning university participation in such activities probably would be greater. Major research universities see participation in the space program as an important component of their overall national responsibilities for training and research. 

PROBLEMS ARISING FROM THE IMPLEMENTATION OF INTERNATIONAL TRAFFIC IN ARMS REGULATIONS 19 Universities Do Not Act in Isolation A fourth kind of effect on universities stems from the fact that contemporary space science projects are rarely, if ever, conducted solely on university campuses. Even when a faculty member leads a project and carries out major elements of the work at a university, there are also partners in industry and national laboratories and often abroad. A typical spaceflight project might have a science team led from a university, collaborating team members in other U.S. and foreign institutions, an aerospace-industry partner, and a national-laboratory partner or overseer (such as the California Institute of Technology Jet Propulsion Laboratory or the Johns Hopkins University Applied Physics Laboratory). However, the project would not be permitted by ITAR to extend the fundamental-research exclusion, for which the university might qualify, to its industry and national-laboratory partners. That limitation becomes a serious impediment to the efficient conduct of the partnership as a whole.