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
fyi@aip.org
(301) 209-3094
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