American Institute of Physics
home contact us sitemap

FYI Number 110: August 30, 2001

ITAR Regulation of Research Satellites Generates Concern

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.

Audrey T. Leath
Media and Government Relations Division
American Institute of Physics
(301) 209-3094

Back to FYI Home