State Department Issues ITAR Amendment

The International Traffic in Arms Regulations (ITAR) controls the export and import of munitions articles, technical data, and defense services. Several years ago, Congress transferred the regulation of satellites to the State Department. Since then, academic institutions have raised questions about the effect of ITAR on space instruction and research. Following months of discussions between the State Department, the Office of Science and Technology Policy, the Defense Department, the National Oceanic and Atmospheric Administration, and NASA, a new ITAR rule was published on March 29. This new rule applies only to university-based space research.

The Interim Final Rule published in the March 29 Federal Register attempts to both clarify these regulations and to remove obstacles to the conduct of university-based fundamental research in space. According to a senior administration official, the new regulations seek to protect both fundamental research and national security. While the Interim Final Rule has the force of law, the Federal Register notice provides a State Department address accepting written comments on the amendment.

ITAR is complicated, and interested readers should read the entire text of the notice in the March 29 Federal Register at http://www.access.gpo.gov/su_docs/aces/aces140.html The following selections are from this notice:

“DEPARTMENT OF STATE 22 CFR Parts 123 and 125 [Public Notice 3954] “International Traffic in Arms Regulations; Exemptions for U.S. Institutions of Higher Learning

“AGENCY: Department of State.

“ACTION: Interim final rule.

“SUMMARY: This rule amends the International Traffic in Arms Regulations (ITAR) by establishing an exemption for accredited U.S. institutions of higher learning from obtaining a license for the permanent export, temporary export, and temporary import of most articles fabricated only for fundamental research purposes covered by Category XV(a) or (e) of the U.S. Munitions List. Consistent with the current exemption found in the regulations on registration of manufacturers and exporters, registration is not required for use of these exemptions.

“EFFECTIVE DATE: March 29, 2002.

“FOR FURTHER INFORMATION CONTACT: David C. Trimble, Director, Compliance Division, Office of Defense Trade Controls, Bureau of Political-Military Affairs, Department of State (202) 663-2700.

“SUPPLEMENTARY INFORMATION:" [Following a review of ITAR developments since the 1970s, the notice states:] “The ITAR amendment herein concerns the transfer of defense articles fabricated only for fundamental research purposes otherwise covered by Category XV (a) or (e) outside of the United States and the provision of defense services and related unclassified technical data for the assembly and integration of such articles into a scientific, research or experimental satellite.

“For the export of articles, the exemption allows U.S. accredited institutions of higher learning to export most such articles as long as all of the information about the article, including its design, is in the public domain. Specifically, the export may only be made to accredited institutions of higher learning or government funded research institutions located in certain countries. The exemption cannot be used for items listed in the Missile Technology Control Regime (MTCR) Annex or items designated as significant military equipment in the regulations.

“For the provision of technical data and defense services, the exemption allows these same institutions the authority to provide defense services related to the assembly and integration of such articles into a scientific, research or experimental satellite when working with the same set of countries. The exemption does not permit the provision of defense services or technical data for the integration of the satellite or spacecraft to the launch vehicle, or of Missile Technology Control Regime (MTCR) controlled defense services or technical data. Consistent with the definition of export in the ITAR (Sec. 120.17(4)), exports to an identified country includes those to nationals of such countries in the United States or abroad.

“Exporters that have questions about the applicability of these exemptions to specific activities should request an advisory opinion from the Department using the guidance provided in Sec. 126.9 of the regulations. . . .”

“PART 123--LICENSES FOR THE EXPORT OF DEFENSE ARTICLES

“1. The authority citation for part 123 is revised to read as follows. . . .”

“Sec. 123.16 Exemptions of general applicability.

"(10) District Directors shall permit, without a license, the permanent export, and temporary export and return to the United States, by accredited U.S. institutions of higher learning of articles fabricated only for fundamental research purposes otherwise controlled by Category XV (a) or (e) in Sec. 121.1 of this subchapter when all of the following conditions are met:

"(i) The export is to an accredited institution of higher learning, a governmental research center or an established government funded private research center located within countries of the North Atlantic Treaty Organization (NATO) or countries which have been designated in accordance with section 517 of the Foreign Assistance Act of 1961 as a major non-NATO ally (and as defined further in section 644(q) of that Act) for purposes of that Act and the Arms Export Control Act, or countries that are members of the European Space Agency or the European Union and involves exclusively nationals of such countries;

"(ii) All of the information about the article(s), including its design, and all of the resulting information obtained through fundamental research involving the article will be published and shared broadly within the scientific community, and is not restricted for proprietary reasons or specific U.S. government access and dissemination controls or other restrictions accepted by the institution or its researchers on publication of scientific and technical information resulting from the project or activity (See Sec. 120.11 of this subchapter); and

"(iii) If the article(s) is for permanent export, the platform or system in which the article(s) may be incorporated must be a satellite covered by Sec. 125.4(d)(1)(iii) of this subchapter and be exclusively concerned with fundamental research and only be launched into space from countries and by nationals of countries identified in this section.”

“PART 125--LICENSES FOR THE EXPORT OF TECHNICAL DATA AND CLASSIFIED DEFENSE ARTICLES”

“4. Section 125.4 (d) is added to read as follows:

“Sec. 125.4 Exemptions of general applicability.

"(d)(1) Defense services for the items identified in Sec. 123.16(b)(10) of this subchapter exported by accredited U.S. institutions of higher learning are exempt from the licensing requirements of this subchapter when the export is:

"(i) To countries identified in Sec. 123.16(b)(10)(i) of this subchapter and exclusively to nationals of such countries when engaged in international fundamental research conducted under the aegis of an accredited U.S. institution of higher learning; and

"(ii) In direct support of fundamental research as defined in Sec. 120.11(8) of this subchapter being conducted either at accredited U.S. institutions of higher learning or an accredited institution of higher learning, a governmental research center or an established government funded private research center located within the countries identified in Sec. 123.16(b)(10)(i) of this subchapter; and

"(iii) Limited to discussions on assembly of any article described in Sec. 123.16(b)(10) of this subchapter and or integrating any such article into a scientific, research, or experimental satellite.

"(2) The exemption in paragraph (d)(1) of this section, while allowing accredited U.S. institutions of higher learning to participate in technical meetings with foreign nationals from countries specified in Sec. 123.16(b)(10)(i) of this subchapter for the purpose of conducting space scientific fundamental research either in the United States or in these countries when working with information that meets the requirements of Sec. 120.11 of this subchapter in activities that would generally be controlled as a defense service in accordance with Sec. 124.1(a) of this subchapter, does not cover:

"(i) Any level of defense service or information involving launch activities including the integration of the satellite or spacecraft to the launch vehicle;

"(ii) Articles and information listed in the Missile Technology Control Regime (MTCR) Annex or classified as significant military equipment; or

"(iii) The transfer of or access to technical data, information, or software that is otherwise controlled by this subchapter.”