B (9:18)

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C (10:41)

I'll hand you over now to Bailey Reichelt and Matthew Linton for space law FAQs.

A (10:50)

Hi guys. This is Bailey Reichelt with Aegis Space Law and and back with me this month is Matt Linton.

D (10:58)

Hi, Bailey. It's great to be back.

A (11:00)

Yeah. So we're going to do something a little bit different this time. We've been drawn into the policy world a little bit and it's hard not to these days. And you can let us know if you love it or hate it after leave a comment for N2K. But we're going to talk a little bit about policy and the Wolf Amendment, how it affects the industry. And Matt brought this to my attention. So, Matt, why don't you introduce the Wolf Amendment? Tell us what it does.

D (11:26)

You bet. Thanks. So Wolf Amendment is something that I think 1N 2K had an interesting discussion on this recently. So take a look at what was discussed. What is it? Right. It goes back to 2011 and an addition that was made in the appropriations side to effectively ban all White House NASA collaboration or engagement with China with respect to space. Anything space. And seems strange, right? Why do we have a congressional action that is banning engagement, which is effectively a diplomacy means potentially on the space agency side? Why is that coming out of Congress? Why is it still with us? I frankly don't know too many people that are even aware of the existence of this, except for in the policy world and in the more think tank corners of dc. But there are practical implications because if NASA can't do effectively any sort of engagement with the Chinese government because of this amendment, some would argue this is one of the reasons why we don't have China on the International Space Station and why they have ended up developing their entire independent space station outside of any sort of influence from the US and the rest of the world. And from my perspective, Bailey, I think we ought to bring it forward. I think people should get educated on it. Research. The Wolf amendment, how does it impact not just us at a high political level in the country, but how is it impacting US companies? US Space companies that are trying to expand, particularly in the civil arena? Because that's the thing here, which is the Wolf Amendment is banning any and all collaboration. And in fact, if you, if the White House wants to do something with China in space, they've got to get an FBI investigation to declare that it's not a national security threat.

A (13:26)

Oh, I really love that part. I was going in and reading it when you brought it to my attention and you mentioned the FBI and the FBI has this national security role and it like directly parallels exactly what the State Department at DDTC and BIS are doing. It's like duplicating the federal effort to implement to the same effect is really fascinating. Keep going.

D (13:49)

Here's an anecdote. The Wolf amendment required, this is recently required NASA to certify to Congress and to gain concurrence of the FBI that obtaining access to lunar samples for study by US scientists, these are lunar samples that China had obtained, that this wouldn't constitute a threat to national security. What are we doing here? Right? Like are we really suggesting that NASA can't determine whether or not looking at a lunar sample is a national security threat? And we've got to get the FBI to dig in here. The fact that they even have to go through the means by which seeking approval for something like this doesn't make much sense to me. So I'm kind of taking a bit of a position here that we are, you know, this, this, whether, whether it was a good idea when it at the time, the fact that this thing still lives with us, creates more bureaucracy, more cost effectively is limited. You know, limiting a lot of options that any administration has at this point to, to engage in space actions that frankly could benefit American companies and could benefit American science. And we're doing this with this big national security banner. Oh no, no. National security, we can't, you know, but Bailey, isn't that what the ITAR is for? Isn't that what the EAR is for?

A (15:13)

Yes, we, we do have other agencies within the US Government which are tasked with national security. It's fascinating that some of the effort is duplicated, but you know, let me talk through it a little bit. So on the export control side, and many people may be listening to this going, yeah, of course that's what the ITAR is for. This stuff already requires congressional or not congressional approval, but approval by a US Agency, it can escalate to congressional approval through export controls as well. And then there's interagency review processes where everyone would get to screen this and say yay or nay. Anyway, so how is this really helping anything? Well, if you have used the ITAR to export on behalf of, or you've looked at the exemptions rather to authorize an export on behalf of a government agency, you know that there are exemptions, those exemptions and what an exemption is is an exemption from a license or other authorization you may have to get from DDTC and sometimes you can self determine them and there's not a lot of other paperwork that tends to be the case for certain exemptions like 22 CFR 125.4 and 126.4. And those allow NASA and contractors acting on behalf of federal agencies to have an exemption to exporting. And we have similar carve outs on the ear side. So to be fair, the Wolf amendment does kind of patch. It's a big patch that covers a gap and closes off these exemptions and exceptions in exporting specifically for China with regard to NASA technology. So if the goal of the US Government to protect national security says that export controls is not enough, maybe this is how they are fixing it. But it does seem like a very political fix. I think the better way to fix it would just be a induced restriction on China or you could just simply put China in the list of restricted countries, which they already are. There are other ways that this could have been done without a weird policy patch at NASA. So I think in a roundabout way, maybe for different reasons. Matt, I'm with you.

D (17:19)

Well, that's very interesting. Yeah. And I think again, the reason we bring this up on, on the podcast today is it's just to really bring some awareness here. Right. Like, I think, I think particularly, you know, I come at the problem from an industry perspective, as you do as well. Right. As lawyers for industry. And, you know, it's not, not that I would suggest that, you know, Doge should have done more, but like, of all the things.

A (17:46)

Right.

D (17:46)

That, that somebody should have been looking at, you know, having having basically the FBI pretend like they're the State Department doing ITAR reviews is, is a very weird thing to have in our bureaucracy. And so I think we ought to be asking the question, is this helping our national security? That's for people, you know, smarter than us that are going to think about, you know, what are real, what are our real core policy, national security issues. But what is this doing to the American space business? And what is it doing in ways that maybe nobody has really thought through or appreciated? Is there a contract that an American company could have gotten through NASA that never materialized because of this? Is that company now struggling or didn't ever get off the ground? Are we losing real science benefit in this sledgehammer of the Wolf amendment claiming national security? I'm sorry, but if China lunar samples off the moon, like, why aren't we, why aren't we encouraging American companies in addition to NASA to be looking at this and analyzing it and thinking it through? Right? So I think that it's a, it's this, to me, this is a, is a debate worth having, especially in the next NDAA cycle, because as I Understand it. You know, this really comes through the appropriation side in Congress. And so it can be fixed that way. And if there are gaps that need to be filled. To your point, Bailey, we should have that conversation of like what really makes sense for the future and not what comes from a legacy of the past.

A (19:18)

Yeah, and I think some of this might be duplicative because a lot of the controls on China have been put into effect since 2011, which is when the Wolf Amendment was introduced. But it just keeps coming back around and no one objects to it. You know, it's important to have law. It's also important to retire laws when you come up with new and better ones. Not taking really a stance on that because I don't have a long and academic history of understanding the Wolf Amendment, but segueing a little bit to where do you guys, the people listening, actually see this in effect? And it's in NASA contracts because NASA administratively is putting conditions on grants or they're flowing down provisions saying you can't involve China in this contract and that would include your supply chain. A lot of things come out of China. We do still have trade with China, even though it's really hard in some of the more highly regulated industries. And a lot of companies just choose not to because it's so hard and because of the way China, well, tends to steal technology, subvert US Companies and other bad things which no one is denying is actually happening. So you're seeing this flow down to you in your NASA contracts. And NASA, if they don't abide by it, has the, is the Deficiency act is how they're held accountable. But how you as a contractor held accountable is the False Claims Act. So if you accept a condition that says you can't do business with China, don't involve China in this contract with NASA. And then you do, then you have a False Claims Act. And False Claims act can often be even larger than the export control fines. You might be more familiar with those. But False Claims act has this thing called treble damages, which a fancy way of saying triple the damages. And this, Matt, is I think actually where we might want to leave this off because I think our next episode is going to be talking a little bit more about the False Claims act and ways that contractors can be on the hook and where those investigations have picked up, especially for research done with universities.

D (21:15)

Looking forward to the next conversation. Thanks, Bailey.

C (21:31)

We'll be right back.

B (21:38)

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A (22:42)

Foreign.

C (22:51)

Welcome back. A quick final note today. That's an industry update that invites a pause for contemplation. Last Friday, Blue Origin said they were officially hitting pause on all flights of its space tourism rocket, the new shepherd for quote, no less than two years, in order to concentrate all of its efforts and presumably resources on its Moonlander program with NASA. So all those big media moments of wealthy folks and celebs and regular folks too carefully getting their overview moment after a takeoff from West Texas? No more of those for at least two years. And in all seriousness, some great work was done with New Shepard missions for researchers, academia, and all sorts of STEM advocacy organizations as well. So I do hope that these programs will find someone else to carry the torch for them, and soon. You know, they've been awfully quiet for a while, but has anyone checked in on Virgin Galactic lately? And that's that's T minus. Brought to you by N2K CyberWire we'd love to know what you think of our podcast. Your feedback ensures we deliver the insights that keep you a step ahead in the rapidly changing space industry. If you like our show, please share a rating and review in your podcast app. Please also fill out the survey in the show notes or send an email the space2k.com we're proud that N2K CyberWire is part of the daily routine of the most influential leaders and operators and the public health and private sector. From the Fortune 500 to many of the world's preeminent intelligence and law enforcement agencies, N2K helps space and cybersecurity professionals grow, learn, and stand formed as the nexus for discovery and connection. We bring you the people, the technology and the ideas shaping the future of secure innovation. Learn how@n2k.com N2K Senior Producer is Alice Carruth. Our producer is Liz Stokes. We are mixed by Elliot Peltzman and Trey Hester with original music by Elliot Peltzman. Our executive producer is Jennifer Ivan. Peter Kilby is our publisher and I am your host, Maria Vermazes. Thank you for listening. We'll see you tomorrow.

D (25:15)

T minus.

B (25:31)

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