May
22
NASA Reveals Purported Solution to Its ITAR Problems
Posted by Clif Burns at 4:02 pm on May 22, 2007
Category: DDTC
The “Jules Verne,” the automated transfer vehicle (“ATV”) being designed by NASA and the European Space Administration (“ESA”) to ferry supplies to the International Space Station is, by definition, a defense article covered by Category XV of the United States Munitions List (“USML”). As such, technical assistance agreements must be in place for each transfer of technical data on the ATV from U.S. contractors to their European counterparts.
NASA has long complained about these requirements in relation to the International Space Station. In December 2006, NASA requested relief from ITAR requirements for transfers of technical data relating to the International Space Station but this request has not yet been acted on by State. The final report by the International Space Station Independent Safety Task Force, released in February of this year, concluded that these requirements jeopardize the safety of the International Space Station.
At the Washington Space Business Roundtable last week, William Gerstenmaier, NASA’s associate administrator for space operations, revealed what NASA believed to be a “feasible workaround” if the State Department fails to act on NASA’s request. According to Gerstenmaier:
We are actually training civil servants as a workaround. It’s not truly training unique civil servants, but we are utilizing civil servants more than we would have … if we had some of these restrictions removed.
According to Gerstenmaier, civil servants could, under existing rules, interact more freely with their non-U.S. counterparts.
It’s difficult to understand Gerstenmaier’s position here. There is no exemption for civil servants to export technical data. Perhaps what he means is that the private contractors, aware of the restrictions, will refuse to share information with the Europeans whereas a government employee will either be unaware of the restrictions or will believe that the “I was just following orders” defense will shield him or her from liability for export violations. I’m not so sure I would call that a feasible workaround.
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8 Comments:
Clif: I had promised myself that I would not intrude on your log for at least 30 days, but there you go again. As the former empowered official for Boeing’s part (as lead system’s integrator) of the International Space Station, these issues are not unknown to me. First, I note that NASA had an exception from the old ODTC in the late 90s ( I don’t have copy because I to leave my files behind when I retreated to private practice). We then had one of the few Special Comprehenisive Licenses, but at some point in time those lovely folks in NASA Houston decided it was just too much trouble, so IVLs for things not on the SCL wre submitted, then it finally occurred to someone (it might have been me) that we could use the GOV license exception for hardware and use technology, at least to the extent that ESA and/or the relevant governments maintained offices at the Euro contractors to whom hardware was consigned (this signed off in an opinion letter by Matt Borman). The problem is that DDTC takes a very limited view of what constitutes the ISS: Only stuff actually stuck on it, as opposed to spacecraft intended to serve it, are considered to be within ECCN 9A004.
Mike: Thanks for those comments. That does provide interesting detail, otherwise unavailable to me or to most of the readers of this blog. Frankly, I tend to agree with you that I don’t see that filing TAAs relative to the ATV puts an extraordinary burden on NASA. Any thoughts on why NASA thinks using government employees rather than private contractors solves any of its problems here?
Clif: I think the problem is that there is a belief widespread among contracting officers in the armed services and defense agencies such as the Missile Defense Agency as well as NASA, that they can just direct contractors to share data with foreign partners, or just do it themselves. Of course while there is some language in the AECA that would support such a view, we all know that DDTC takes a very different view. I think that all the services and agencies really need to invest more time in export training of contracting officers and program managers, probably by outside counsel who, in addition to being more knoledgeable, can be more objective and less susceptible to pressure.
Mike’s hit the nail on the head. NASA does have an export compliance group and even there (maybe particularly there) it seems there’s a notion that as agents acting on behalf of the U.S. gov’t. they can really export what they want.
Comment by used to work for a NASA contractor on May 23rd, 2007 @ 1:17 pm
Well, that is what I expected was the case. But we’ve all heard DDTC make clear that it doesn’t think that individual government agencies or employees have the right to export whatever they want. Of course, if DDTC simply says that and then doesn’t (or can’t) take action against the other agencies, who’s not to say that an agency such as NASA isn’t right when it says we can export what we want?
DoD/NASA, Commerce and State really need to talk this issue out and publish clear guidelines in English (the dialect spoken Beyond the Beltway).
It seems to me that if all NASA wishes to accomplish is the export of technical data, it could make available to US Contractors the use of ITAR exemption 22 CFR 125.4(b)(3) by specifically calling out the transfer in the Contract. This is usually most easily accomplished by inserting a special paragraph into the Statement of Work (SOW) pre-Award, but can, with only slightly more paperwork, be accomplished via modification to the SOW post-Award.
The problem remains that even if this route is available (does DDTC consider NASA an agency of the US Government?) and NASA opts to exercise it, only part of one leg of the ITAR-controlled triumvirate (techncial data, hardware, services) can be subject to exemption – and not technical data “disclos[ing] details of design, development, production, or manufacture of any defense article.”
Logic might dictate that NASA receive special treatment under the ITAR akin to Foreign Military Sales (FMS) Agreements – call them International Space Cooperative (ISC) Agreements and give them broad exemption covering each leg of the ITAR-cotrolled triumvirate. Better yet, make ISC Agreements exempt from record-keeping and reporting requirements as well!
The main issue with contractors getting a TAA in place is that Foriegn Government agencies will not sign the agreements due to the Third country national issues
