AAU/COGR Letter to OSTP July 17, 2000 Dr. Gerald Epstein Assistant Director for National Security Office of Science and Technology Policy 424 Old Executive Office Building 17th Street and Pennsylvania Avenue, NW Washington, DC 20502 Dear Dr. Epstein: We very much appreciate OSTP agreeing to examine the impact of the International Traffic in Arms Regulation (ITAR) on university space-related research. In a letter to Nils Hasselmo, Peter Magrath, and Milton Goldberg, OSTP Director Neal Lane requested examples of ITAR's impact on universities. We hope the following will be helpful. Stanford University A Turkish national graduate student has developed a new hybrid rocket fuel that the university is in the process of patenting. United Technologies read the student's work and wanted to fund further testing of the fuel, but insisted that they could not discuss the student's concept with the student unless Stanford obtained an export license under ITAR. A Chinese national post-doc has written software for a project known as Gravity Probe-B, which ultimately will require the placing of data-gathering scientific instrumentation in orbit on a satellite. This satellite is not itself a military state-of-the-art spacecraft; it is not intended for and could not be put to military use; all of the information and technology surrounding the scientific equipment is in the public domain. The post-doc sent his software to NASA for review. NASA stamped the report and the software "ITAR-controlled" and insisted that the individual who wrote it now needs an export license to see it. Additionally, a gyroscope critical to the carrying out of the experiment has been characterized by NASA as "sensitive military equipment," which may require exclusion from the research of any foreign nationals who might see the instrument, thus creating a "deemed export" requiring an export license. One Ph.D. student built a small satellite as his thesis project, using technology in the public domain and parts purchased at a local commercial electronics shop. Unable to obtain launch space with a private company or on a NASA vehicle, the student enterprisingly looked about for another provider. Ultimately, the Baumann Space Center at the University of Moscow offered to allow the student to put his satellite on their rocket launch without charge. However, ITAR as presently worded appears to preclude this type of cooperation, notwithstanding the fact that the satellite is neither suitable nor intended for any military use. The student has not yet secured a launch and, therefore, cannot test his project. It would cost the university $500,000 to $2 million to secure a private launch for the satellite. The Egyptian government wanted to contract with Stanford to study the phases of the moon using satellite technology in order to properly gauge Moslem holy days. Stanford's role would have been to set up the ground station and take readings from the satellites. This contract would have resulted in about $3 million of research funding in an area of joint interest. The moon-studying satellites, themselves of an unclassified nature, would contain basic science instrumentation only. Based on the current ITAR provisions, the university decided not to collaborate with Egypt. Stanford has been trying to form a joint research project called the "Laser Interferometer Space Antenna" (LISA). This experiment involves three satellites whose separations can be measured to very high precision and which are thus sensitive to small displacements by gravitational waves. LISA is a proposed joint US-European major mission and is still in the technology development phase. Because it is satellite-based, radiation hardening of various elements (including the laser) is required. US scientists working on LISA will need to exchange design information with European scientists concerning payload subsystems. Radiation hardening techniques are used elsewhere within the university-based research community, and numerous papers have been published on the subject. Radiation hardening of the laser crystal is accomplished by doping with Chromium, a well-known technology that has been broadly published in open literature. However, ITAR forbids the export of the crystal to research partners in Europe even for joint research projects. The mission also requires test masses that are drag-free. These test masses are not gyroscopes but free-drifting masses for measuring precise distances for the science experiment. However, the Jet Propulsion Laboratory asserts that this aspect also falls within ITAR and precludes forming a joint research program with European colleagues. Finally, a critical "inertial sensor" is at the heart of the LISA science mission. NASA asserts that this sensor is subject to ITAR and that European Space Agency (ESA) scientists may not participate. NASA will only consider the proposal if it is revised to exclude European participation, even though ESA technology is crucial to the mission. University of Texas The Gravity Recovery and Climate Experiment (GRACE) mission is a university-led, bilateral science mission sponsored, and funded, by both NASA and the German Space Agency, Deutsches Zentrum für Luft- und Raumfahrt (DLR). As such, the exchange of information between agencies and contractors is critical to the success of the mission. US contractors for the GRACE mission, fearing onerous sanctions, refuse to have the necessary dialogue with either cooperating German co-sponsors and their contractors, or foreign subcontractors involved directly with the project until approved TAAs and Technology Transfer Control Plans are in place covering every instance of exchange. This additional burden on the contractors for TAAs exists even though the project has an international memorandum of understanding (MOU) between NASA and DLR specifying requirements and responsibilities for technology transfer controls. It provides for the exchange of essential information to effect the necessary cooperation for mission success. Areas severely affected on GRACE involve errors in design of mechanical interfaces, delays in software development, and delays in planning, testing, instrumentation, and data processing. Specific problems include: Reasons for the delay of coordination of the international MOU were never made clear to the mission team, and thus, could not be further addressed as the project progressed. This provides for a higher risk of uncertainty at the time of satellite export. Seemingly arbitrary constraints were imposed on the interaction between Space Systems Loral (SS/L) and German partners on the attitude control system design. Even though the required accuracy is poorer than that which triggers ITAR, a TAA was required and only approved with provisions for document content and review by the DTRA. As a result, the start of work was delayed, and communication within the entire project affected. As one of the first Earth System Science Pathfinders, the GRACE mission is cost-capped and time-constrained. Constraints on interactions between SS/L and Dornier Satelliten Systeme (DSS), therefore, have impacted the entire mission schedule and cost. Difficulties have arisen in ascertaining the extent of the coordination problems faced during the Assembly, Integration and Verification Test at SS/L, as well as the shipment of the satellites to Russia. Use of a US contractor for the satellite level testing is at growing risk because approval of the TAA between SS/L and the launch vehicle supplier (which involves German and Russian contractor personnel) has been delayed. If not approved soon, work will have to be transferred to a foreign contractor. Such a move will also upset the export licensing plans for US-built instrumentation and delay the launch of the mission by at least the length of time required to get an export license (i.e. six to nine months). The cost impact is likely to exceed twenty percent of the total mission cost. University of Arizona In order to fulfill a contract requirement to integrate the High-Energy Neutron Detector (HEND), a Russian-built instrument, into the Gamma-ray Spectrometer (GRS), the University of Arizona requested authorization in January 1998 to participate in technical data exchange with Russian Space Institute (IKI) engineers. Over the next year and a half, the University of Arizona was instructed that the ITAR application would be done at a higher lever, either by the Jet Propulsion Laboratory (JPL), NASA, or Lockheed-Martin Astronautics (LMA), the spacecraft builder. The university regularly checked on the status of the application. It was not until a few months before the university was to have a face-to-face meeting with the Russians that the university was instructed to proceed with the application process on its own. At the direction of the State Department, the university applied for two licenses: DSP 5 and DSP 73. Because no design information was provided, the DSP 5 was viewed as sufficient to provide the necessary technical information required to support the HEND integration into the GRS subsystem. LMA did eventually apply for a TAA to support the delivery of the HEND instrument to the spacecraft; however, it was not a tri-lateral request and covered only LMA and IKI. LMA gave the University of Arizona and JPL less than one week's notice that project scientists could not communicate with the Russians during delivery because they were not part of the TAA, and the university DSP 5 license did not authorize participation in defense services. Since the HEND is part of the GRS subsystem, scientists must be able to communicate with one another. Therefore, the University of Arizona is again trying to resolve an ITAR issue with very little time. As a modification to the DSP 5 license, a request for "limited technical participation in a defense service" has been submitted to the State Department for approval. On June 21, the University of Arizona delivered the instrument to LMA. However, LMA will not let the Russians co-investigators and partial hardware suppliers talk with American scientists on LMA property or even have lunch with them in the LMA cafeteria. When university researchers collect data on their portion of the instrument and want to give it to their Russian collaborators for analysis, several LMA managers have to come look at the data on the screen, interpret it, and authorize release of the data to the Russians. Pennsylvania State University Swift is a multiwavelength Medium Explorer with a budget of about $150 million. It is designed to observe gamma-ray burst sources. The lead institutions are NASA Goddard Space Flight Center and Pennsylvania State University, and significant contributions are being made by institutions in the United Kingdom and Italy. Swift is slated for launch in 2003. Explorers are supposed to maintain a demanding schedule (40 months from selection to launch). ITAR officials at Goddard and NASA headquarters, however, threatened to stop the Swift development until full MOUs were in place with partners in the United Kingdom and Italy. Swift spent about one month in limbo, costing about $500,000 before this problem was resolved. Ensuring compliance with ITAR has required a high-level project scientist to become familiar with both the ITAR regulations and the mission's technical details, as well as the involvement of a financial officer, a member of the Office of Sponsored Research staff, and three lawyers. From the scientists' point of view, the most serious negative impact is that British partners have been excluded from several important meetings due to ITAR concerns. This has led directly to some misunderstandings and interface problems. Also, ITAR issues have prevented the project from shipping software to British collaborators, thereby delaying development of flight software. Washington University in St. Louis The Advanced Cosmic-Ray Composition Experiment for the Space Station (ACCESS) is a large detector for high-energy cosmic rays, with planned deployment on the International Space Station. This project is currently in the formulation stage. It is expected that an Announcement of Opportunity (AO) to provide instrument components will be released in early 2001. Potential foreign collaborators for ACCESS component instruments include scientists from Japan, Europe, and possibly Russia. There is also the possibility that a major component of the ACCESS system (the interface between the ACCESS cosmic-ray detectors and the Space Station) could be provided only by a foreign partner. Specifically, it is possible that photomultipliers manufactured by the Japanese company, Hamamatsu, may be uniquely capable of meeting some ACCESS requirements. In a similar previous project, testing of photomultipliers revealed a subtle design flaw in these light detectors. When the test results were shown to the manufacturer, they were able to use that information to improve their devices and thus improve the performance of the instrument. Such a discussion with a photomultiplier manufacturer is impossible without giving them specific technical information about the design of the satellite instrument in which the photomultipliers are to be used. However, under a strict interpretation of the ITAR rules, such a conversation with a manufacturer, if it were a non-US company, might constitute an "export" and the conversation would be seriously delayed, if not forbidden. More generally, there seems to be a catch-22 in NASA's application of the ITAR regulations. If the project is a formally-selected experiment, some of the communication difficulties are eased. Of course, to organize and win such a selection involving any foreign colleagues, one needs to talk in detail. But this is forbidden at any level beyond the conceptual. In the months ahead, as the university prepares its formal proposal, this interpretation could become a major limitation on foreign participation in the project. Finally, several US scientific groups working on ACCESS have either graduate students or post-doctoral fellows who are not US citizens working in the group. It is unclear what these groups must do to permit internal discussion of future spaceflight experiments. California Institute of Technology Roughly one-half of the graduate students in planetary science at the California Institute of Technology are not US citizens. Like other planetary science graduate students, they are attracted to the university partly because of JPL, a world center for planetary exploration. Yet it takes them 2 years or longer to get permission to visit JPL without an escort. For example, one Russian national student is doing a thesis on Jupiter's atmosphere using data from the Galileo spacecraft, but she cannot visit the JPL scientists responsible for the instruments or attend Galileo meetings. The long delay in getting permission to visit JPL means that students who want to work in JPL laboratories generally choose other projects. Multi-University Projects A consortium including the California Institute of Technology, the University of Maryland, the University of California-Berkeley, and several foreign institutions was selected to build an instrument for flight on a NASA spacecraft, and was given a 6-month contract to study areas of risk. Legal officers at some of the institutions advised the scientists that they could not consult with their foreign collaborators without ITAR approval. As a result, the scientists could not carry out parts of the study, resulting in increased risk for the mission when construction begins. Universities involved with the Space Infrared Telescope Facility (SIRTF) have had great difficulty in arranging for foreign nationals to attend and/or participate in meetings with the main contractors, Lockheed and Ball Aerospace. In one case, it took over a year to arrange for one SIRTF Science Center employee to have limited access to Lockheed. The STEREO Solar-Terrestrial Probe (STP) mission is cost-capped at $120 million for two spacecraft through Phase C/D, with the scientific instrument development limited to roughly the same budget as the instrumentation. To meet the ambitious scientific goals of the AO for this mission, all the selected investigations included significant foreign participation in the design, development, and analysis phases. The relatively recent, more stringent enforcement of ITAR regulations was not anticipated in the AO for STEREO, and is not provided for by the cost-capped budget. In the past, NASA has leveraged cost and scientific return benefits via international partnerships in its missions. ITAR, however, appears to threaten this model, particularly in the areas of schedule and cost, and perhaps in the ability to design and develop instrumentation jointly. STEREO is nearing the end of Phase A. After a three-month "bridge" phase, Phase B is scheduled to start in November and to be completed by June 2001. Phase C/D are scheduled for June 2001-June 2004. If the TAAs are not in place at the beginning of Phase C/D, project management foresees as much as six to nine months of delay in design and development. ITAR requires a Letter of Agreement (LoA) or MOU between NASA and each foreign partner providing hardware on a no exchange of funds basis. The LoA is processed by NASA Headquarters (Code S and Code I) before being passed to the State Department for approval. In some cases, consolidated LoAs have been arranged for all the foreign partners in a single country in order to streamline the approval process. According to STEREO Project management, STEREO requires by far the largest number of LoAs of any NASA project since the new ITAR enforcement regime began. All four STEREO PI instruments include foreign hardware partners; thus, all STEREO science teams are affected directly by ITAR. As of this writing, the STEREO Project has not yet received approval for the LoA it submitted several months ago. Foreign Co-Investigators-and in the case of the SWAVES instrument, the foreign Principal Investigator-have been shut out of meetings with APL attitude and orbit engineers, whose legal advisors informed them they could not discuss spacecraft mission profile tradeoffs without LOAs and TAAs. Foreign science team members have likewise had to be denied access to significant portions of instrument Web sites used by instrument managers to share design and schedule information. This has not only resulted in friction among normally collegial teams, but has had a real cost impact, since the security requires additional software design and implementation efforts. Non-US team members were prohibited from attending the Mission Design Meeting at Goddard Space Flight Center. The mission orbit design is important to the experimenters before launch, such that one can properly design one's instrument (e.g., size of occulting disk, thermal design, science objectives). Non-US team members continue to be denied access to meetings and teleconferences. Some science issues cannot be discussed over the phone, because the contractor says it cannot see who is on the other end of the phone and therefore cannot guarantee that a non-citizen is not listening. Non-US team members, including the SWAVES instrument Principal Investigator, are also not permitted to look at the instrument Interface Control Document (ICD) that defines how the instrument interfaces with the spacecraft. Those team members that have access to the restricted documents have to keep them secured from non-US persons. This is especially a burden at universities, where students, graduate students, post docs and others have common access to most areas. General Observations Both NASA and the US government have long encouraged foreign participation in US space science missions, both for financial reasons and to foster or maintain strong relationships with other countries. As a result, many NASA missions, including relatively small Explorer and Discovery-class missions, have significant international contributions in terms of hardware, software, and science. Proposers now have to consider whether foreign collaborations are worth the extra work and determine how to discuss technical items for the proposal-even for submittal-without violating ITAR. ITAR restrictions are becoming a major concern of our foreign partners as well, discouraging them from either participating in US missions or inviting US participation in their missions. Difficulties in dealing with ITAR restrictions adds additional uncertainty to the already difficult task of coordinating international missions. Personnel problems, including some with foreign postdoctoral research associates and foreign graduate students studying at US universities, seem to be widespread, and this is causing concern to research groups. Universities are inherently open to foreigners: visiting scientists, graduate students, undergraduate students, even employees. ITAR dictates that participation in a project, or even general access to a given room, will be restricted by nationality. The lack of clarity in the ITAR regulations has several serious consequences: (a) substantial fines can be levied against researchers personally, (b) industrial contractors are very cautious as they do not want to jeopardize their future government opportunities, and (c) individual employees of contractors are sometimes afraid to deal with these issues as they may also be held personally culpable for violations. ITAR restrictions are becoming a serious impediment to planning future NASA missions: they cause unacceptable delays in schedule and large expenditures of scarce funds (NASA missions are already on very tight budgets), and they actively discourage cooperation with non-US scientists. There is a marked variation in interpretation of ITAR constraints. Some legal advise exists that placing instrument design specifications in the public domain by publishing it (e.g. via the Web) frees the developers from ITAR requirements. At the same time, other groups are forbidden from doing the same thing, also on legal advice. If the more liberal interpretation is correct, conservative interpretation imposes unnecessary schedule and cost impacts; if the more conservative advice turns out to be appropriate, fines and other sanctions could result. While section 120.11 Public Domain of the ITAR seems to indicate that fundamental research by universities is exempt, this exemption apparently does not hold if "the research is funded by the US Government and specific access and dissemination controls protecting information resulting from the research are applicable." There is much confusion as to what this last clause means. While we realize that the current situation involves many legitimate issues involving national security matters, we hope that clarification of ITAR can be issued ensuring that university collaborations and exchanges vital to the continued success of federally-funded research are allowed to continue in a manner consistent with the long-standing fundamental research exception. Again, please know how much our Associations appreciate your attention to this matter. Cordially, Kathie Bailey Mathae Federal Relations Officer, AAU Tony DeCrappeo Staff Associate, COGR