Bigelow Aerospace files a challenge to ITAR

In this week's print issue of Space News, Mike N. Gold, who is the corporate counsel for Bigelow Aerospace (BA), has an op-ed in which he describes an effort by his company to force the State Department to change the way it implements the ITAR (International Traffic in Arms Regulations) process. Currently, essentially any technology related to space is considered a munition and must be reviewed before exported, or, as in the case of the Genesis vehicles, simply taken in hand outside the country by a US company to launch on a foreign rocket. (In a previous op-ed, Mr. Bigelow recounted how even a simply mounting table for their spacecraft had to be reviewed before it could be shipped to Russia.) The reviews can take several months, require fees and legal services, and generally applies for exports to friendly as well as not so friendly countries. The process slows projects and drives up their costs. Large companies can usually overcome all this but it can be a deal killer for many small companies.

The general view has been that the legislation passed by Congress in the late 1990s requires that the State Department take such a broad view of space technology. Mr. Gold, however, says this is not true. He says that State has, in fact, misinterpreted the legislative language. Instead of taking the time and effort to make distinctions among space technologies as allowed under the law, the bureaucracy has taken "the safe and easy way out" and simply declared everything as a munition until proven otherwise case by case.

To challenge this approach, BA has filed a Commodity Jurisdiction (CJ) request, which is a way for a company

to force the Directorate of Defense Trade Controls (DDTC) to rule on whether a particular technology or piece of hardware should be covered by the Department of State's U.S. Munitions List or by the Department of Commerce's Commerce Control List.

Their CJ will apparently deal with a ruling on the company's space habitat technology. Gold says that as far as he knows, they are the first to make such a direct challenge to the current implementation of ITAR for space technology.

Gold goes on to make clear that they, of course, support efforts to protect genuine military space technology secrets from potential foreign adversaries and that they are not being antagonistic. Rather, they want to work with the parties involved to establish

a common sense export control regime that properly places benign technologies on the Commerce Control List and hardware that actually is militarily sensitive under ITAR and the U.S. Munitions List.

He says that BA is happy to be a trailblazer with the CJ effort but

... we cannot fight this battle alone. Instead of cowering in the shadows, and complaining at meetings and conferences, we would urge others, whether you work for the private sector, government or academia, to contact the DDTC and express support for our request and the implementation of a common sense export control policy.

Here is a link to the DDTC website.

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The AIAA also adds its voice to the call for reform of ITAR export restrictions on space related goods: AIAA Applauds Initiative to Modify Nation's Export Controls - AIAA/PRnewswire - Mar.11.08 (via ParabolicArc.com).

Posted 03/12/08 | 10:49:34 by TopSpacer | Filed under: Space Law and Regs

Comments

With none other than Harry Reid as Bigelow's representative in the United States Senate (Senate Majority Leader for those of you not up on Washington DC politics), Robert Bigelow's choice of Nevada for his corporate HQ may be useful to fight this challenge on ITAR with multiple fronts.

I certainly believe that Nevada civic leaders would be very interested in promoting a "local" business... especially one that brings in high paying engineering and manufacturing jobs into a city that is deficient to those kind of jobs. Just imagine the Senate hearings where Senator Reid grills Secretary Condie Rice about these rules asking what is so secret about sending a table to Russia? A not-so-veiled threat of "fix it or we will" from the Senate certainly can't hurt. Reopening the ITAR legislation in Congress is likely to be the last thing most at the State Department want to see happen (or those in the industry), although who knows what this summer will bring.

Posted by Robert Horning at 03/12/08 17:10:07

This is definitely good to hear about! Hopefully it will help bring down the cost of the general space industry, although I have serious doubts on the State Department changing their policies (as they could just hide behind "everything is dangerous" mantra, especially in this day and age).

Hopefully Congress (or even the President since he heavily supports the VSE) can change this for the benefit of the industry.

Posted by Darnell Clayton at 03/12/08 19:10:54

Hmm I don't see it that way (I could be wrong of course).

Not long ago the executive branch instructed the State Department on changes in relation to ITAR after successful lobbying from a coalition of American organizations. The changes implemented were those that could happen independently of any involvement by Congress. The same group is also trying to work Congress on the issues but there hasn't been any news of similar success there (likely too early).

So it seems to me that any grandstanding on Mr. Reid's part would be extremely foolish (and thus quite likely to happen ^_^) since whatever the outcome of BA's effort the place which truly has the power to change ITAR (including providing clarity on just what exactly the rules say) is none other than Congress...

I wouldn't be the least surprised if this effort by BA ends up in Congress for much the same reasons if successful.

Posted by Habitat Hermit at 03/12/08 19:14:53

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