Developmental Milestones/Developments to Date:
Current Assessment/State of the Field:
Stone, Christopher, M., “NASA, Export Control, and Collaboration: a Bit of Clarification,” May 6, 2013, The Space Review, http://www.thespacereview.com/article/2288/1, Last Checked May 21, 2013.
- “Space export control wasn’t reformed per se, as the law only gave the President authority again to move items from United States Munitions List (USML) to the Commerce Control List (CCL) following a review of Category XV, and a few other reports Congress requires before items are moved to the dual use list. Reform is still a work in progress.”
- “Collaboration will continue: among NASA, universities, and other nations. Each agency, including NASA, has disclosure officers, and with export control violations at the two NASA centers under investigation, it’s only prudent for them to check their documents, particularly to enable Congress to have faith in the system again.”
Wolf, Kevin, J., “Export Administration Regulations (EAR): Control of Spacecraft Systems and Related Items the President Determines No Longer Warrant Control Under the United States Munitions List (USML),” Dated May 14, 2013, Published May 24, 2013, Assistant Secretary of Commerce for Export Administration, Proposed Rule, Bureau of Industry and Security, Department of Commerce, http://www.ofr.gov/(S(at5defqelxjulv40esdg5hhy))/OFRUpload/OFRData/2013-11986_PI.pdf, Last Checked June 4, 2013.
- “This proposed rule describes how certain articles the President determines no longer warrant control under United States Munitions List (USML) Category XV – spacecraft and related items – would be controlled on the Commerce Control List (CCL).”
- “This is one in a planned series of proposed rules describing how various types of articles the President determines, as part of the Administration’s Export Control Reform Initiative, no longer warrant USML control, would be controlled on the CCL and by the EAR.”
- *”This proposed rule is being published in conjunction with a proposed rule from the Department of State, Directorate of Defense Trade Controls, which would amend the list of articles controlled by USML Category XV.”
- “This rule proposes changes to the text of the EAR as modified by the Initial Implementation Rule of April 16, 2013 (78 FR 22660). BIS made changes to the EAR in the Initial Implementation Rule that provide the framework for the “500 series.” The changes made to the EAR in the Initial Implementation Rule will be effective on October 15, 2013.”
- “In December 2012, the Wassenaar Arrangement on Export Controls for Conventional Arms and Dual-Use Goods and Technologies (“Wassenaar Arrangement”) amended its definition of “space-qualified” to be “[d]esigned, manufactured, or qualified through successful testing, for operation at altitudes greater than 100 km above the surface of the Earth.”
- “This proposed rule is part of the Administration’s Export Control Reform Initiative. Under that initiative, the USML (22 CFR part 121) would be revised to be a “positive” list, i.e., a list that does not use generic, catch-all controls on any part, component, accessory, attachment, or end item that was in any way specifically modified for a defense article, regardless of the article’s military or intelligence significance or non-military applications. At the same time, articles that are determined to no longer warrant control on the USML would become controlled on the CCL. “Spacecraft” and related items so designated will be identified in specific ECCNs known as the “500 series” ECCNs.”
Horvath, Jennifer, “Satellites and spacecraft move to commerce control list: proposed rule,” Lexology, Library, Association of Corporate Counsel, May 27, 2013, http://www.lexology.com/library/detail.aspx?g=38f2552d-1063-4b39-b2a2-f0da7f2f716f, Last Checked June 4, 2013.
- “Spacecraft and related items are currently controlled under Category XV of the U.S. Munitions List (USML), found in the International Traffic in Arms Regulations (ITAR) overseen by the State Department. The proposed rule would transfer the control of certain items in Category XV to the Commerce Control List (CCL) of the Export Administration Regulations (EAR) overseen by the Commerce Department.”
- “One major change is that all spacecraft, including commercial communications satellites, manned or unmanned space vehicles, even if designated as developmental, experimental, research or scientific, will be controlled under the new EAR category. Spacecraft which is specifically listed in the current Category XV of the USML will remain controlled by ITAR. Space-qualified parts, components, accessories and attachments will also be controlled. Other items that would be controlled under the EAR include software designed for specific commodities controlled in certain listed 500 series, and technology required for services such as development, production, operation and repair related to certain other listed 500 series.”
- “The new 500 series will still be subject to the main controls in the EAR including anti-terrorism, national security and regional stability. Certain items will be subject to missile technology controls. The licensing policy will be on a case-by-case basis to determine whether the transaction is contrary to national security or foreign policy interests of the U.S.”
Erwin, Sandra I., “New Export Rules Coming Soon: Will They Open Trade Floodgates?,” National Defense Magazine, National Defense Industrial Association, Blog, Posts, July 10, 2013, http://www.nationaldefensemagazine.org/blog/Lists/Posts/Post.aspx?ID=1197. Last Checked July 17, 2013.
- “Up until now, any component of a military system or a communications satellite required a State Department arms-exporting license, even if they were commercial goods. Thousands of dual-use items will transition from the International Traffic in Arms Regulations (ITAR) to the Export Administration Regulations.”
- “The first categories of items to transition to the new regime are aircraft and jet engines. Next in line are ground vehicles, naval vessels, submarines and oceanographic equipment, which will transition in January 2014. Other categories will follow over time.”
- “Under the current plan, product categories will be removed from the U.S. munitions list in a sequential order, which means some companies will have to wait years for their products to be transferred to Department of Commerce jurisdiction.”
Moix, Cameron, “Federal law to widen state aerospace trade,” Colorado Springs Business Journal, Aerospace/Defense, July 16, 2013. http://csbj.com/2013/07/16/federal-law-to-widen-state-aerospace-trade/. Last Checked July 17, 2013.
- “Local aerospace experts are discussing the enforcement of a new federal export law that some say will profoundly affect Colorado’s trade and production of space technology and research.”
- “The latest iteration of the National Defense Authorization Act included the amendment, which will relaxing now-stringent U.S. export and licensure policies on satellites and other space-related technologies.”
- “The law essentially allows satellites and related items not found to be a threat to defense initiatives to be transferred from the United States Munitions List to the Commerce Control List.”
- “Among the items up for proposed transfer to the CCL are a variety of satellites — commercial communication, lower-performance remote sensing, planetary rovers, as well as planetary and interplanetary probes — as well as thousands of types of parts, components, software, systems and subsystems, and equipment related to passenger space travel.
Krige, John “National Security and Academia: Regulating the International Circulation of Knowledge” Bulletin of the Atomic Scientists. Volume 70 Issue 2. Page 42. March 2014.
- “NASA banned Chinese scientists from attending a November 2013 conference at the agency’s Ames Research Center to discuss the latest results from the Kepler space telescopes planet search… it was ‘completely unethical for the United States of America to exclude certain countries from pure science research’” –page 42
- “The Fundamental Research Exclusion is the key instrument that universities use to maintain compliance with export controls while allowing free access to research” – page 44
- “National Security Decision Directive (NSDD) … noted that U.S. universities and federal laboratories were ‘a small but significant target’ of Soviet and Eastern bloc intelligence gathering” – page 44
- “The Fundamental Research Exclusion created a space for universities to produce unclassified knowledge that was not subject to restrictions on circulation.” – page 45
- “In 2004, the Department of Commerce’s inspector general insisted that the controls on knowledge production were far too lax. The collapse of Soviet communism, the emergence of China as a major economic power, and the terrorist attacks of 9/11 posed new challenges to national security.” – page 45
- “Fearful that other countries would benefit from the open climate of US research to acquire an economic advantage, the inspector general berated the Department of Commerce for not tightening up the regulatory system” – page 45
- “The Bureau of Industry and Security (as it has been called since 2001) administers these rules [Export Administration Regulations] to regulate the export of dual-use technology.”
- “Deemed export clauses control the export not only of devices or physical goods but also of dual-use knowledge.” – page 45
- “In the Export Administration Regulations, ‘use’ is defined as the ‘operation, installation (including onsite installation), maintenance, repair, overhaul, and refurbishing’ of equipment” – page 46
- “Universities claimed that this definition allowed foreign nationals to freely use controlled equipment in their research as long as they did not perform all six of the listed actions” – page 46
- “To definitively close this loophole, the inspector general wanted the word ‘and’ changed to ‘or’” – page 46
- “On that reading, a license would be needed for a foreign national to perform any one of the six listed activities.” – page 46
- “To date, these pleas have been heeded: ‘and’ has thus far not been changed to ‘or.’ However, the regulations affecting the entry of foreign nationals have been tightened considerably” – page 47