AAU/NASULGC/COGR Letter to Neal Lane Concerning the ITAR Issue May 16, 2000 Dr. Neal F. Lane Assistant to the President for Science and Technology Policy 424 Old Executive Office Building 17th Street and Pennsylvania Avenue, NW Washington, DC 20502 Dear Neal, We are asking your help in resolving a problem that universities involved in space research are having with the International Traffic in Arms Regulations (ITAR). Several agencies, including NASA, the State Department, the Commerce Department, and the Energy Department, are already involved, but the result seems to be more confusion, not clarification. We note that a similar situation arose in 1981, prompting several university presidents to write then-Secretaries Baldrige, Haig, and Weinberger for assistance. That letter is attached. We now urge that you lead an effort to develop government wide clarification and guidance on the ITAR issue that will allow the continuation of academic collaborations and exchanges crucial to university-based research funded by the government. The current problem stems from a change the 105th Congress made in the way commercial space satellite technology is treated. In Public Law 105-261, responsibility for export licensing was transferred from the Commerce Department to the State Department. Research activity that once was covered by the "fundamental research exclusion" of the Commerce Department export regulations is now subject to the State Department's International Traffic in Arms Regulation (ITAR). As a result, scientific satellites, and all related data, components, software, parts, and materials are now on the Munitions List. Export of these items is tightly controlled. Consequently, a non-citizen's participation in research and development of a scientific apparatus that involves or relates to a satellite (such as components parts) may be, under ITAR, a "deemed export" requiring an export license from the Department of State. The success of university research in general and of collaborative research programs in particular owes much to unfettered participation by persons of all nationalities. This unique characteristic of universities and the importance of fundamental research has historically been recognized in the export control regulations of the Commerce Department. That is, although commercial/defense technology and information may be subject to various controls on its export, the Commerce Department's Export Administration Regulation (EAR) has long provided that university based fundamental research in science and engineering that is widely disseminated to the interested community is excluded from export controls. Commerce has also applied this reasoning to exclude from its control technology used in the performance of fundamental research. But for this exclusion, universities would need an export license for each foreign student matriculated and each foreign faculty member hired. ITAR is already having an adverse impact on university research as outlined in the attached document. Some existing projects may be unable to go forward under new NASA regulations requiring that all collaborators be ITAR-compliant as a number of university scholars and collaborators are from listed countries. University counsels have been unable to reach a common understanding of the current requirements, as advice given by various agencies tends to be different. Collaborative research programs must be able to continue. Some limited help for this resides in ITAR itself, but neither NASA nor the State Department seems willing to resort to its saving clauses1 in the current anti-espionage environment. Similarly, some assistance may be available through National Security Decision Directive 189 (1985), which states that classification-rather than export controls-is the appropriate vehicle for controlling federally funded research if national security is an issue. We suggest that the following options be considered in trying to resolve this situation: Clarify that the fundamental research exemption in the ITAR is the same as under the Export regulations. The fundamental research exemption in ITAR should operate in the same manner as the EAR and apply to both the defense item and the technical data about the item. Universities need not register or secure export licenses when the activity qualifies under the ITAR public domain and fundamental research exemption. Universities may rely upon the Q&A section of the EAR, at 15CFRPart 734, as similarly applicable to ITAR. Make explicit that prime contractors who accept controls on access by foreign nationals and EAR or ITAR licensing requirements should not flow down such requirements to university and laboratory subcontractors when the subcontract activity qualifies as fundamental research. Recognize that universities cannot operate like defense contractors; support the open, fundamental research environment, and limit the use of closed meetings, non-disclosure agreements, and other security controls when involving University-based researchers in federally supported projects. We appreciate your assistance in this matter, and would be glad to discuss it further with you at your convenience. Cordially, Nils Hasselmo President, AAU C. Peter Magrath President, NASULGC Milton Goldberg President, COGR Attachments (2) KBM/lc 1 ITAR exempts the results of fundamental research (defined as "basic and applied research in science and engineering where the resulting information is ordinarily published and shared broadly within the scientific community") from certain of its coverage. 22 CFR 120.11(a)(8). ITAR also states that the definition of technical data "does not include information concerning general scientific, mathematical or engineering principles commonly taught in schools, colleges and universities or information in the public domain 22 CFR 120.10(a)[(5)]. Indeed, ITAR further states that educational institutions, even if they may be otherwise providing defense goods or defense services, are not required to be "ITAR Registrants." However, unlike Commerce regulations, ITAR does not extend its exemption to items (technology, tools).