Duty Calls: ITAR, USML, and NPRMs (Oh My!)

Those of you who have been following the NewSpace field for a while have probably heard plenty of griping about ITAR (the International Trafficking in Arms Regulations). Basically, ITAR handles the “export” of “defense articles” and “defense services”. Unfortunately, the way the law is written, exporting defense services is defined so loosely that theoretically they could throw you in jail for pointing an “evil-Canadian” to a specific page in Huzel and Huang to answer question about rockets that has been solved and in the public domain for decades. While the ostensible purpose of ITAR is to protect us from having dangerous weapons and weapons technologies exported to our potential enemies, the real result so far of ITAR has mostly been to stifle international collaboration on the commercial level, provide NASA and other agencies a fig-leaf to hide information from the public, prevent US companies from employing subject matter experts who happened to have been born on the wrong side of an arbitrary political border, basically subsidizing the creation of foreign competing industries who aren’t hampered by ITAR, and generally strangling the US space industry from being able to sell space-related technologies to even friendly countries outside our border. There’s a reason why people in the industry like to talk about export control laws in the US as being thoroughly ITARded.

Recently, industry and the military were able to get the attention of Congress and the White House on how damaging and counterproductive the current implementation of ITAR has been to both our industry and our defense capabilities. So, in one of the few recent examples of bipartisan effort resulting in something beneficial to our country, Congress gave the president permission to reevaluate what items should be listed on the US Munitions List (the list of items covered by ITAR). As Jeff Foust reported on Space Politics, the White House has now released its suggested changes to Category XV of the munitions list (the category that controls spacecraft), and corresponding changes to the Commerce Control List (which are controlled by the Commerce Department’s EAR regulations, which are much less onerous than ITAR, or at least so I’ve heard).

These suggested changes have been released on the Federal Register in what’s called a Notice of Public Rulemaking or NPRM. The point of NPRMs is to let the public know that the government is revising a regulation, and give them a reasonable amount of time to submit comments on the proposed changes, which the government is required to evaluate before releasing the actual final, legally-binding rule changes. The comment period for an NPRM is typically only 45 days, and the clock started ticking on this one over a week ago. It looks like the due date for comments is July 8th. I would strongly suggest that people who are impacted by ITAR (almost any company doing aerospace work) should try and find a way to make time to review these NPRMs and submit well thought-out and polite comments.

My concern is that while this NPRM does go a long way towards solve some of the key ITAR problems (particularly related to GEO communications satellites), it creates dangerous precedents in other areas–like forcing manned suborbital and orbital vehicles and satellite servicing robotics explicitly onto the munitions list. My worry is that by relieving the pain of the most vocal, and financially well-established part of the space community (GEO commsats) while leaving the rest of us in the lurch, I worry that this will completely kill any impetus for further repair of ITAR for many years. Basically, this may be the community’s only chance to fix some of this damage, because if we don’t, those of us in the satellite servicing and manned spaceflight industries will be battling ITAR without the help and clout of the commercial communications industry on our side like we have this time. And it would be a travesty if something like Lynx or Dragon (or Sticky Boom™) were continued to be treated as dangerously as say a ballistic missile, a supersonic fighter jet, or a main battle tank. While all of these may be “dual-use” in some fashion, that’s what the EAR was meant to deal with–not ITAR, which was meant to deal specifically for systems whose primary use is military.

I’ll admit that these proposed changes are a real slog–I’m not even sure if the people who wrote these fully understand what they’re trying to accomplish. Reading through these and providing a thoughtful reply is a real time commitment that few of us can make lightly. I also imagine that several of the bigger players in the community like XCOR, VG, SpaceX, etc may be planning on reviewing these proposed rules and submitting changes already. So why post this blog post? Because I strongly feel that the addition of a large number of well-reasoned and well-thought-out responses from the public could actually make a difference in making sure that this rule change is a “three steps forward” change, and not a “two steps forward and one and a half steps back” for the industry. This may be our only shot we get for a long time.

The following two tabs change content below.
Jonathan Goff

Jonathan Goff

President/CEO at Altius Space Machines
Jonathan Goff is a space technologist, inventor, and serial space entrepreneur who created the Selenian Boondocks blog. Jon was a co-founder of Masten Space Systems, and is the founder and CEO of Altius Space Machines, a space robotics startup in Broomfield, CO. His family includes his wife, Tiffany, and five boys: Jarom (deceased), Jonathan, James, Peter, and Andrew. Jon has a BS in Manufacturing Engineering (1999) and an MS in Mechanical Engineering (2007) from Brigham Young University, and served an LDS proselytizing mission in Olongapo, Philippines from 2000-2002.
This entry was posted in ITAR. Bookmark the permalink.

19 Responses to Duty Calls: ITAR, USML, and NPRMs (Oh My!)

  1. ken anthony says:

    We simply can’t get away from the fact that space is the high ground. PicaX is the munition. Put that on anything and you’ve got a bomb for any target on earth.

    This is why ultimately, we need to emigrate to get out from under these onerous regulations. Mars or bust, baby!

  2. Ken Brown says:

    Jon,

    One of the problems I have seen is the ITAR list is updated so infrequently that very outdated technology is still banned from export even though superior technology is available in the commercial sector throughout the rest of the world. This happens very frequently with electronics. The other problems is that older technology that may be useful for commercial space applications is held under lock and key for no good reason.

    Dual use is a very slippery slope. An argument can be made that a cargo van is a munition since it can be loaded with explosives and driven to a target. Some items seem that silly.

  3. Jonathan Goff Jonathan Goff says:

    Ken B.,

    Agreed. There are ways to handle issues like that (Commodity Jurisdiction Requests) that basically force the DoS to determine if by their own rules ITAR is still applicable (see CFR Section 120.3 and 120.4 for their rules), or whether it should move over to the Commerce Department’s Commercial Control List (aka EARs).

    Ironically, if the item is dual use, where most applications are predominately commercial, by CFR 120.3(a), it should *not* be controlled by ITAR. Dual use materials should be for the most part controlled under EAR, not ITAR. EAR allows exports of most types to most countries without a license, and only requires a license under specifically defined situations (ie trying to ship a dual-use item to North Korea or stuff like that). http://www.bis.doc.gov/licensing/exportingbasics.htm

    ~Jon

  4. Jonathan Goff Jonathan Goff says:

    Ken B.,

    So you don’t have to dig, here’s what CFR 120.3 says about what belongs on the USML:

    “An article or service may be designated or determined in the future to be a defense article (see § 120.6) or defense service (see § 120.9) if it:
    (a) Is specifically designed, developed, configured, adapted, or modified for a military application, and
    (i) Does not have predominant civil applications, and
    (ii) Does not have performance equivalent (defined by form, fit and function) to those of an article or service used for civil applications; or
    (b) Is specifically designed, developed, configured, adapted, or modified for a military application, and has significant military or intelligence applicability such that control under this subchapter is necessary.”

    So, something that’s mostly used now for civilian applications, or has civilian equivalents should by definition not still be on the USML and controlled by ITAR, but should be moved to the CCL controlled by EAR.

    ~Jon

  5. Chris (Robotbeat) says:

    I wonder what the regulations would be like in a Mars colony where every scrap of internal real estate belongs to someone, as well as all food, water, and even air. I’m not sure space will have fewer regulations except for people rich enough to already be their own state (i.e. multi-billionaires like Musk).

  6. Jonathan Goff Jonathan Goff says:

    Chris, Ken A.,

    While it’s a fun topic, speculating about whether future space colonies will or will not become libertarian paradises seems a little bit off-topic. I’d kind of like to keep comments in this thread focused on how to improve the odds of getting the best possible result out of ITAR reform. You know, the kind of thing that would improve the probability of us actually getting to test your two hypotheses about space colony governance. 🙂

    ~The Management

  7. Pingback: Duty Calls: ITAR, USML, and NPRMs (Oh My!) | Selenian Boondocks | The Newspace Daily

  8. Pingback: Transterrestrial Musings - ITAR Emergency

  9. henry vanderbilt says:

    Note that this proposed rule also munitions-lists “man-rated orbital spacecraft”. Whoever came up with THAT bright idea may end up selling more Soyuz seats than the Roscosmos sales department. I assume SpaceX, Boeing, and Sierra Nevada will have comments. Not to mention Blue Origin.

  10. Henry,
    Yeah it’s pretty ridiculous. How man-rated orbital spacecraft, habitats, etc are munitions is completely beyond me.

    ~Jon

  11. Charles Grimm says:

    Does this mean that Lynx and Virgin can avoid ITAR as long as they avoid officially “Man Rating” their spacecraft?
    CG

  12. henry vanderbilt says:

    Probably not. State Department doesn’t care about the finer nuances of NASA man-rating. From context State used “man-rated” here to mean simply “human-carrying”. Ignorant, yes. But State enforces ITAR, and “man-rated” will mean what they think it means until you prove in court otherwise. You’d be taking a big risk and guaranteeing yourself huge legal bills trying to exploit that as a loophole.

  13. henry vanderbilt says:

    Jon – yeah, I can almost see the sense in the orbital servicing stuff being export restricted – too easy to convert that to orbital dis-service, so to speak. Not necessarily a fatal burden in any case; a foreign customer can just pay for US-based orbital service missions. (Though ITAR restrictions on talking tech to them will still be an expensive PITA.)

    But basic transport spacecraft, orbital habitats, and so forth? They’re aborting an entire new export industry there for no obvious reason.

  14. Tom Billings says:

    “But basic transport spacecraft, orbital habitats, and so forth? They’re aborting an entire new export industry there for no obvious reason.”

    Henry, the abortion itself may *be* the reason.

    The people who have made their living in arms control are staring at the entire industry running out from under their control. Their apparatus is able to control present industry, with fewer than 200 launch sales for stuff to orbit each year. That’s not what they are seeing coming on in the future, where they could, before the end of the decade, be faced with 200 sub-orbital launch sales per week!

    We will have Bigelow’s Stations accepting “sovereign” clients, who then can use those stations for whatever development they desire. The degree of contribution by Bigelow to those developments could be looked at by arms controllers the same way police look at the madame of a whorehouse when she says “Officer, …I just rent the girls their rooms, clean up after them, and keep everything running. *I* didn’t have sex for profit”. The key is, ..they increasingly look at themselves as police, who know that if they are not in control, their political masters may just eliminate their positions!

    That doesn’t even consider what happens if the MadeInSpace/NASA collaboration encourages high performance/low mass spacecraft being built at these Bigelow-owned stations, or at facilities to be owned by those sovereign clients that could be built at these stations.
    If the sovereign clients then make weapons at those facilities, which facilities they built using the Bigelow stations, whose fault is it then?

    They may be trying to keep their old paradigm together, by smothering the future that could replace it with something not viable for themselves.

  15. henry vanderbilt says:

    Tom – yes, I’ve considered that scenario on and off for a couple decades now – attempts to stifle space expansion to preserve a comfortable status quo. Certainly it’s happened, more than once.

    In this case though, you might be over-thinking things. I’ll have to go back through it more carefully, but after my first time through the proposed additions to the munitions list, it looked to me more like someone’s interdepartmental exercise in collecting suggestions as to what might conceivably eventually be a threat. A wish-list, in other words.

    My best guess right now is that hard, concerted pushback will probably get essential things back off that list. I hope I’m right!

  16. Henry,
    I think the State Department might actually be seeing this from a different angle. To them, manned suborbital and orbital vehicles may *currently* fall under the blanket “munition” categorization that all satellite and space hardware starts out as. In that case this may be less a case of them “adding” suborbital vehicles than it is a case of them “not removing” them from the list. Personally, I stick to my opinion that neither satellite servicing nor manned spacecraft fit the definition of what should be on the USML that I mentioned above in my response to Ken Brown.

    ~Jon

  17. Anon says:

    All,

    I would highly recommend you comment on the proposed rule with well reasoned, rational arguments why these articles should not be USML-controlled and why they would be better controlled by the Department of Commerce. I suspect the motivation for controlling suborbital vehicles is not as nefarious as is surmised here.

    Anon

  18. Jonathan Goff Jonathan Goff says:

    Anon,

    I agree 100%! Rational, polite arguments with an assumption of good motives will be our most likely way to get this fixed.

    ~Jon

  19. Pingback: Altius Comments to the EAR NPRM

Leave a Reply

Your email address will not be published. Required fields are marked *