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Space Science and the International Traffic in Arms Regulations: Summary of a Workshop 1 Background INTERNATIONAL TRAFFIC IN ARMS REGULATIONS The International Traffic in Arms Regulations (ITAR) are administered by the Directorate of Defense Trade Controls (DDTC) at the Department of State; its objective is to ensure that U.S. defense trade does not injure the national-security and foreign-policy interests of the United States. ITAR is intended to prevent the proliferation of sensitive technologies and weapons of mass destruction by controlling the export and temporary import and re-export of items that have been defined in law as defense-related. Such items appear on the U.S. Munitions List (USML), which is a list of equipment and related technical data that are designated as defense articles and defense services1 according to the Arms Export Control Act (AECA). A second mechanism by which the U.S. government controls export activity is the Export Administration Regulations (EAR) administered by the Department of Commerce (DOC). The intent of EAR is to regulate the export of dual-use commodities, software, and technology—items that have predominantly commercial uses but also have military applications. The two systems are both aimed at protecting U.S. interests, but they are based on fundamentally different policy premises. ITAR protects goods, technologies, and services that are declared to be military items; EAR addresses items that are common in commercial trade and is consistent with DOC’s charter to promote and regulate U.S. trade. In the mid-1990s, because of the importance of commercial communication satellite (“comsat”) trade in the commercial sector, such satellites were considered dual-use items and controlled by DOC. In 1999, in response to the report of the U.S. House of Representatives Select Committee on U.S. National Security and Military/Commercial Concerns with the People’s Republic of China (also known as the Cox Committee), Congress mandated that export-licensing jurisdiction over all satellites and related equipment and services, irrespective of military utility, be returned from DOC (under EAR) to the State Department (under ITAR). That shift has had a major effect on international satellite activity—not just commercial trade but also international scientific research activity involving satellites, notwithstanding the fact that all satellites other than comsats were always subject to ITAR. Export of “experimental, scientific, and research” satellite hardware, technical data, or assistance judged to be defense-related is not permitted with non-U.S. persons without approval or exemption by the State Department. A non-U.S. person is defined as a person who is neither a citizen of the United States nor a “protected individual” 1 Defense services are defined as including “the furnishing of assistance (including training) to foreign persons, whether in the United States or abroad in the design, development, engineering, manufacture, production, assembly, testing, repair, maintenance, modification, operation, demilitarization, destruction, processing or use of defense articles.”
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Space Science and the International Traffic in Arms Regulations: Summary of a Workshop under the Immigration and Naturalization Act, such as a foreign national who is a legal permanent resident.2 Under ITAR, an export is defined as Any oral, written, electronic, or visual disclosure, shipment, transfer, or transmission outside the United States to anyone, including a U.S. citizen, of any commodity, technology (information, technical data, or assistance), or software or codes. Any oral, written, electronic, or visual disclosure, transfer, or transmission to any person or entity of a controlled commodity, technology, or software or codes with intent to transfer it to a non-U.S. entity or person, wherever located. Any transfer of those items or information to a foreign embassy or affiliate. Any U.S. or non-U.S. person planning to exchange ITAR-controlled articles with foreign nationals must obtain an export authorization from the Office of Defense Trade Controls Licensing (DTCL). Licenses are reviewed case by case, so for multiple defense-controlled activities responsible parties may find that they must apply for and obtain multiple licenses. License approval for space-related activities can take from several weeks to several months. It may also be necessary for responsible parties to obtain technical-assistance agreements (TAAs), which are required for the performance of defense-related services or disclosure of technical data when a foreign national is involved. THE FUNDAMENTAL-RESEARCH EXCLUSION AND NATIONAL SECURITY DECISION DIRECTIVE 189 In 1985, President Reagan signed National Security Decision Directive (NSDD) 189, which established “national policy for controlling the flow of science, technology, and engineering information produced in federally-funded fundamental research at colleges, universities, and laboratories.”3 NSDD 189 defines fundamental research as basic and applied research in science and engineering, the results of which ordinarily are published and shared broadly within the scientific community, as distinguished from proprietary research and from industrial development, design, production, and product utilization, the results of which ordinarily are restricted for proprietary or national security reasons. It describes the policy for control of fundamental research as follows: It is the policy of this Administration that, to the maximum extent possible, the products of fundamental research remain unrestricted. It is also the policy of this Administration that, where the national security requires control, the mechanism for control of information generated during federally-funded fundamental research in science, technology and engineering at colleges, universities and laboratories is classification…. No restrictions may be placed upon the conduct or reporting of federally-funded fundamental research that has not received national security classification, except as provided in applicable U.S. Statutes. The policy, which formally recognizes the open nature of fundamental research, was reaffirmed by the national-security adviser to the president, Condoleezza Rice, in 2001.4 In March 2002, DDTC revised ITAR’s treatment of scientific satellite activities at U.S. universities when they are intended solely for fundamental research purposes. The State Department declared that, in being consistent with NSDD 189, it did not intend to regulate fundamental research. Consequently, ITAR provided exclusions for 2 Non-U.S. persons also include foreign corporations, business associations, partnerships, trusts, societies, and any other entities or groups that are not incorporated or organized to do business in the United States, and they include international organizations, foreign governments, and agencies and subdivisions of foreign governments. 3 National Security Division Directive 189, “National Policy on the Transfer of Scientific, Technical and Engineering Information,” September 21, 1985, reaffirmed on November 1, 2001, Washington, D.C. 4 Letter, November 1, 2001, to Harold Brown, cochair of the Center for Strategic and International Studies, from Condoleezza Rice, national-security adviser to President George W. Bush.
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Space Science and the International Traffic in Arms Regulations: Summary of a Workshop “persons who engage only in the fabrication of articles for experimental or scientific purpose, including research and development.” ITAR licenses were explicitly not required for fundamental research involving international cooperative activity with foreign universities or research institutions in the North Atlantic Treaty Organization and some other U.S.-allied countries, as long as a number of conditions were met: All the information about the article, including its design, and all the resulting information is “published and … generally accessible and available to the public” or is the kind of information “ordinarily published and shared broadly in the scientific community.” The U.S. entity involved in the research is an accredited institution of higher learning. The U.S. university engaged in the research accepts no “restrictions on [the] publication of [the] scientific and technical information resulting from the project or activity” (including U.S. government-imposed access and dissemination controls that protect information resulting from U.S. government-funded research). ISSUES MOTIVATING THE WORKSHOP Because universities often collaborate with foreign partners in research and teach or employ foreign graduate students and other researchers, ITAR has a substantial effect on university activities in the space sector. Many university activities are considered to be fundamental research and thus are excluded from ITAR control; however, academic regulatory-compliance administrators and researchers alike still encounter problems with space-related activities because of the narrow and somewhat ambiguous conditions that enable research to be considered “fundamental” and therefore excluded from licensing under ITAR. Several recent meetings and reports have indicated that some issues concerning university compliance with ITAR are still unresolved. Universities have been concerned about the 2002 revision of ITAR, which appeared to narrow the definition of public domain and fundamental research.5 They are also concerned about the costs of compliance with ITAR and ITAR’s chilling effect on research. Because of uncertainty as to what research efforts are ITAR-controlled, many university researchers are now working only with students or partners who are U.S. citizens. Universities have voiced their concerns to the State Department and the Office of Science and Technology Policy through the American Association of Universities and the Council on Governmental Relations, and the government has responded by hosting explanatory workshops and investigative studies. DDTC held a meeting on November 13, 2003, at the National Academies’ Constitution Avenue Building in Washington, D.C., to discuss AECA and its regulatory impact on the conduct of university-based research. As a result of discussions that included representatives of DDTC and various universities, the participants identified key issues: the definition of a “full-time” employee, whether research that is intended to be in the public domain but is not yet published because it is not finished is considered to be in the public domain, work under a contract with a company (specifically, Defense Federal Acquisition Regulation Supplement clause 252.204-70006), how controls of biological and chemical agents intersect with ITAR, and whether foreign students can access equipment at universities. In collaboration with Johns Hopkins University and the Federal Demonstration Partnership, the State Department presented a symposium on export controls in May 2007; the symposium was intended to help bring universities up to date about ITAR registration, licensing, and various exemptions and exceptions. The U.S. Government Accountability Office (GAO) has published several reports that have touched on university compliance with ITAR and the regulations’ effect on university research. A 2006 GAO report stated that most of the research that occurs at universities is fundamental research; however, when there might be a need for a license many universities are taking the conservative approach of limiting engagement of foreign partners and students to those who would qualify to work under an ITAR exclusion, so that the universities can avoid the paperwork and cost of obtaining a license. The report recommended that the State Department and DOC assess vulnerabilities in the conduct and publication of university research and “improve guidance and outreach to ensure that universities 5 See http://www.aau.edu/research/Ltr7.11.02.html. 6 See http://126.96.36.199/docs/DFARSExportControlRevisedComments.doc.
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Space Science and the International Traffic in Arms Regulations: Summary of a Workshop understand when to apply export controls.”7 A separate GAO report in 2006 found that “the enforcement of export control laws and regulations is inherently complex” and recommended “that the enforcement agencies take several actions aimed at improving coordination and remedying other weaknesses in export control enforcement”;8 the agencies generally agreed with the recommendation. At the September 12-13, 2007, National Research Council workshop, researchers voiced their concerns about the lasting effects of ITAR on the quality of space-related research and education at U.S. institutions of higher education. A number of participants also expressed concerns about the effect of ITAR on American competitiveness in the satellite sector. The lack of comprehensive guidance in the ITAR application process, lack of clarity in the ITAR language itself, and delays and administrative costs associated with obtaining an ITAR license have caused many U.S. and foreign researchers to turn away from international partnerships. Those issues, which were deliberated at the workshop, are discussed in greater detail in the following chapters. 7 GAO, Export Controls: Agencies Should Assess Vulnerabilities and Improve Guidance for Protecting Export-Controlled Information at Universities, GAO, Washington, D.C., December 2006. 8 GAO, Export Controls: Challenges Exist in Enforcement of an Inherently Complex System, GAO, Washington, D.C., December 2006.