Control and licensing of satellite technologies was shifted from
the Department of Commerce to the Department of State under the
1999 DOD authorization bill. Satellite technologies – including
those intended for unclassified fundamental research – now fall
under the State Department’s more restrictive International
Traffic in Arms Regulations (ITAR). Astronomers and other
scientists who rely on such satellites are concerned about the
impact of these regulations on fundamental research, particularly
on international collaborations.

Prior to the 1999 defense authorization bill, research satellites
were governed by National Security Decision Directive NSDD-189.
This directive, promulgated by the Reagan Administration,
excluded fundamental research from the ITAR provisions. It
stated that to the maximum extent possible, the conduct and
products of fundamental research should remain unrestricted, and
that access to information generated by university research
should be controlled, if necessary, by the classification
process, and not by export controls.

In Congress, there have been attempts to urge the Administration
to reaffirm the Reagan Administration’s directive. As noted in
FYI #88, in this year’s VA/HUD appropriations committee report
(H. Rept. 107-159), House appropriators reiterated last year’s
call for resolution of the issue: “As mentioned in the conference
report accompanying the fiscal year 2001 appropriations bill,
Public Law 105-261 transferred responsibility for satellite
technology export licensing from the Department of Commerce to
the Department of State to be regulated under the International
Traffic in Arms Regulations (ITAR). While scientific satellites
are still covered by the fundamental research exclusion provided
by National Security Directive 189, the unfortunate and
unintended consequence of the jurisdictional move has been that
university-based fundamental science and engineering research,
widely disseminated and unclassified, has become subject to
overly restrictive and inconsistent ITAR direction.

“The conferees last year directed the Office of Science and
Technology Policy (OSTP) to work jointly with the National
Security Council, in consultation with the NASA Administrator and
the Secretary of State, to expeditiously issue clarification of
ITAR that ensures that university collaborations and personnel
exchanges, which are vital to the continued success of federally-
funded research, are allowed to continue as they had under the
long-standing fundamental research exception in the Export
Administration Regulations.

“The Committee understands that, while OSTP and NASA have
proposed language to the State Department, no clarification has
yet been issued. In the meantime, vital research has been
delayed, and in some instances, universities have had to turn
down contracts due to the potential for substantial penalties for
violation and uncertainty in the application of ITAR. The
Committee, therefore, requests an immediate report that clarifies
ITAR in a way that allows the highly productive scientific
collaborations to continue under guidelines in place prior to
1999. Upon the issuance of guidance, NASA shall ensure that
university principal investigators are fully aware of their
responsibilities.”

Senate VA/HUD appropriators included similar language in their
committee report, S. Rept. 107-43: “In the conference report that
accompanied the Fiscal Year 2001 Appropriations Act, the
Committee directed OSTP to work with the National Security
Council, NASA, and the Department of State to issue a
clarification of the International Traffic in Arms Regulations
(ITAR) to ensure that university collaborations and personnel
exchanges are allowed to continue as they had under the long-
standing fundamental research exception in the Export
Administration Regulations. This clarification was to be issued
within 120 days of enactment of the fiscal year 2001 Act.
Regrettably, this clarification has not yet been issued. The
Committee directs OSTP to complete the interagency consultation
process and issue this clarification immediately.”

In another report section, however, the Senate committee
expresses concerns over the illegal transfer of sensitive
technologies: “The Committee remains sensitive to continuing
risks regarding the illegal transfer and theft of sensitive
technologies that can be used in the development of weapons by
governments, entities and persons who may be hostile to the
United States. The Committee commends both NASA and the NASA
Inspector General (IG) for their efforts to protect sensitive
NASA-related technologies. Nevertheless, this will remain an
area of great sensitivity and concern as the development of
technological advances likely will continue to accelerate. The
Committee directs NASA and the NASA IG to report annually on
these issues, including an assessment of risk.”

House Science Committee Chairman Sherwood Boehlert (R-NY) and
Ranking Minority Member Ralph Hall (D-TX) sent a letter to
President Bush on July 20, calling on him to reaffirm the Reagan-
era exemption for research satellites. The text of that letter
will be provided in FYI #111.

Some scientific organizations are also pressing for resolution of
the ITAR issue. The Association of American Universities
provides a detailed legislative history, and information on the
current status of such efforts, on its web site at
http://www.aau.edu/research/traffic.html.

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Audrey T. Leath

Media and Government Relations Division

The American Institute of Physics

fyi@aip.org

(301) 209-3094

http://www.aip.org/gov

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