AIP FYI#38: 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.”

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Richard M. Jones

Media and Government Relations Division

The American Institute of Physics

fyi@aip.org

(301) 209-3095

http://www.aip.org/gov

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