ITAR Complicates Preparations For New Station Supply Vehicle

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WASHINGTON — A s the international space station partners get ready for the first flight of Europe’s Automated Transfer Vehicle (ATV) this year, U.S. export controls are slowing down important collaboration that is needed between U.S. and European contractors.

“We are about to begin ATV training and we need to begin training the way that we will fly,” said William Gerstenmaier, NASA associate administrator for space operations.

In an effort to make it easier for U.S. contractors to work with their European counterparts, NASA Administrator Mike Griffin sent a letter in December to U.S. Secretary of State Condoleezza Rice, seeking some streamlining of the steps needed to comply with the U.S. International Traffic in Arms (ITAR) regulations that govern many space-related products and services.

“It makes it difficult to get information on each other’s systems that we need to operate together, in a timely way,” Griffin said in an April 5 interview. “And that was the root of the request to Secretary Rice for some assistance in getting relief.”

So far, though, no relief is in sight. “I have not had a response to this point,” Griffin said.

The ITAR regulations require U.S. contractors to obtain what is known as a Technical Assistance Agreement, or TAA, to share controlled information and technology with non-U.S. citizens.

The problems ITAR is causing for the space station program were highlighted in a report a NASA-chartered task force sent Congress in late February examining threats to the orbital outpost. The report urged the State Department to move swiftly to exempt some NASA contractors from ITAR restrictions so they could prepare for the upcoming ATV flight.

In a March 28 interview Gerstenmaier downplayed the potential impacts of the export control compliance issues, saying the agency had “workarounds” if no ITAR relief is granted.

“The only issue is training,” he said. “So we’ve probably got a month or two or three before we have to make a decision one way or the other. Either way we will be able to support the program in the end with civil servants. It would be more convenient if we get it sorted out.”

In a written follow up a week later, however, Gerstenmaier made clear NASA still wants to see the limited ITAR relief granted.

“The ITAR restrictions have caused inefficiencies and have been a distraction to training and ATV procedure development,” Gerstenmaier wrote .

Gerstenmaier explained that training civil servants is considered a feasible alternative to using contractors in this case because under existing ITAR exemptions NASA civil servants can provide “certain technical data” and other spacecraft-related assistance to non-U.S. citizens.

He also emphasized that civil servants would “work in parallel with the contractors, not replace them.”

But Gerstenmaier also said that while NASA can “get by” without the help of contractors as it prepares for ATV’s arrival, the level of support provided by an all-civil servant team would be “less than desired.”

Griffin, in the April 5 interview, echoed some of Gerstenmaier’s points.

“Now obviously we’re 15 years into the space station program with our partners and we have found workarounds, but they are that – they are workarounds. We’d rather not have to expend resources doing it,” Griffin said. “We always have workarounds, but ITAR, as applied to the space station, does complicate our relationships with the partners.”

The problem has annoyed European officials who contend their cooperation with NASA on the international space station program is already covered by the intergovernmental agreement the space station partners signed in September 1988, and a nearly identical document signed a decade later in June 1998 following Russia’s entry into the partnership.

Andre Farand, an export-control specialist at the European Space Agency’s (ESA) office for new initiatives, said in an interview that both of those agreements contain a provision that governs the transfer of data and goods related to the international space station when the transfer is handled through civil servants of cooperating space agencies.

At NASA’s urging, ESA now acts directly with the U.S. State Department on these issues rather than going through NASA. There have been two State-ESA meetings, one in 2006 and a second in February in Washington.

ESA had no trouble with ITAR-related issues until 2004, when ESA was asked to sign TAAs related to its Columbus laboratory module, which has since been shipped to Florida for a planned launch to the station aboard the U.S. space shuttle. “For 15 years we had no problem, and the [intergovernmental agreement] exemption for civil servant transfers of data and goods was applied,” Farand said.

Since then, ESA has been asked to sign a number of TAAs by U.S. companies, and some of these TAAs contain language that ESA cannot accept. One particular problem is that some U.S. companies draft TAAs that presume to supersede ESA’s immunity from certain U.S. laws, Farand said.

ESA officials are international civil servants subject to the same protections given officials from the Organisation for Economic Cooperation and Development , and the United Nations . Signing such TAAs would set a precedent that ESA has been unwilling to accept, Farand said.

Gerstenmaier acknowledged that some space station partners are refusing to sign TAAs, but said “it’s not uniform across the board. We have a lot of our technical assistance agreements signed with the partners and those are completed behind us and some that are still open and we are working through those.”

John Hall, an ITAR specialist at NASA headquarters here, told Space News in a March 29 e-mail that “several International Partners have expressed concerns that certain requirements and restrictions under the ITAR are impeding cooperation.”

Asked for a specific example of a material impact ITAR restrictions are having on the space station program, he responded with language nearly identical to that which Griffin used in his letter to Rice.

“Where U.S. Government contractors cannot obtain required foreign government signatures on their TAAs, the contractors cannot participate in necessary technical interchanges with those foreign government partners,” Hall wrote. “This has the potential to impact schedule and progress, including timely communications and integration efforts.”

Unless the TAAs are signed very soon, Gerstenmaier said, NASA would have to begin ATV training using only civil servants.

“Even if the TAAs are signed in several months, we may not have time to bring in the contractors,” Gerstenmaier added.

There is no standard TAA form that is crafted at the State or Defense departments . TAAs are written by companies individually and reflect the companies’ occasionally worst-case assessment of the risks, resulting in the most restrictive language possible.

“You will get 10 TAAs from 10 different companies, and there are often substantial differences between them,” Farand said.

Another problem, he said, is that some U.S. companies draft their TAAs to include only entities in Germany, Italy or Holland — home to ESA’s space station directorate — rather than to include all 17 member nations of the agency. If these were signed as written, they would prohibit ESA’s space station directorate from talking to ESA headquarters, or to someone at ESA whose nationality is, say, Spanish, he said.

“It is clear that some of these U.S. companies had little experience dealing with an international organization and with international civil servants and didn’t know how to react. Some of them write the TAA so that it covers Estec [ESA’s Netherlands-based technology center and space-station directorate location] but not anywhere else, including Paris, our headquarters. We have had instances where some of our own contractors, having signed TAAs, cannot talk to us.”

Any modification to a TAA can take months to make its way through State and Defense, even if the modification is only to change an address, or to add a company to the list of those covered by the TAA. Nonetheless, Farand said, when it has been clear that a specific TAA is needed to prevent a clear delay and corresponding cost overrun, ESA has signed it.

Farand said he is not aware of any case in the space station partnership in which a major deliverable has been substantially held up because of ESA’s resistance to signing a TAA. “We have signed enough TAAs to allow an orderly cooperation with [the international space station] .”

Finally, ESA is aware that in the post-9/11 world, many nations are acting to strengthen technology transfers, including nations in Europe. Some of the problems associated with TAAs for the space station will not be repeated in future space exploration because there will be no intergovernmental agreement framework, or at least not the same framework.

As more and more interactions between ESA and NASA are handled by companies, rather than by government employees, it is inevitable that TAAs will play a bigger role in the future and this ESA has accepted, Farand said. “We have started to work [with NASA] on an agreement on a future exploration program and we know we cannot avoid this. We have accepted it.”