[Federal Register Volume 67, Number 61 (Friday, March 29, 2002)]
[Rules and Regulations]
[Pages 15099-15101]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-7347]


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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.

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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 the March 1999 transfer of 
commercial communications satellites to the USML required by the 
National Defense Authorization Act Fiscal Year 1999, some parts of the 
academic community expressed concern about potential government 
restriction on disclosure of information in university classrooms by 
virtue of the application of the International Traffic in Arms 
Regulations (``ITAR''). The March 1999 transfer of licensing 
jurisdiction back to State affected only commercial communications 
satellites and did not affect the continuation of the Department's 
longstanding jurisdiction over research, experimental, and scientific 
satellites. To clarify any underlying concerns of the universities, the 
Department worked with the Office of Science and Technology Policy, the 
Department of Defense, the National Oceanic and Atmospheric 
Administration, and the National Aeronautics and Space Administration. 
The exemptions herein address these concerns and are designed to 
facilitate the conduct of university-based space research and are fully 
consistent with the Department's longstanding policy of not regulating 
fundamental research.
    Consistent with NSDD 189 (National Policy on the Transfer of 
Scientific, Technical and Engineering Information), the Department does 
not regulate fundamental research and the March 1999 transfer of 
commercial communications satellites to the USML did not change this 
policy. Similar concerns that the State Department might regulate 
academic exchanges of information under the ITAR generated considerable 
debate in the late 1970s and early 1980s. In response thereto, the 
State Department published revisions to the ITAR in December 1984, 
which specifically noted that concern had been expressed that the ITAR 
could be read in an overbroad manner to encompass exchanges of 
information in a purely academic setting. See Revisions to the 
International Traffic in Arms Regulations, Supplementary Information, 
49 FR 47683 (Dec. 6, 1984). The Department acknowledged these concerns 
and took steps to alleviate them. Since 1984, the ITAR has been amended 
in order to indicate more clearly that publicly available information 
and academic exchanges

[[Page 15100]]

are not treated as controlled technical data.
    Most notably, 22 CFR 122.1(b)(4) specifically exempts from the 
registration requirements of the ITAR ``persons who engage only in the 
fabrication of articles for experimental or scientific purpose, 
including research and development.'' Further, specifically exempted 
from the definition of technical data is ``information concerning 
general scientific, mathematical or engineering principles commonly 
taught in schools, colleges, and universities,'' 22 CFR 120.10(a)(5), 
and information that is in the ``public domain'' if published and 
generally available and accessible to the public through, for example, 
sales at newsstands and bookstores, subscriptions, second class mail, 
and libraries open to the public (22 CFR 120.11). Information is also 
in the public domain if it is made generally available to the public 
``through unlimited distribution at a conference, meeting, seminar, 
trade show or exhibition, generally accessible to the public in the 
United States'' or ``through fundamental research in science and 
engineering at accredited institutions of higher learning in the U.S., 
where the resulting information is ordinarily published and shared 
broadly in the scientific community.'' 22 CFR 120.11(6), (8)
    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. This amendment involves a foreign affairs function of the 
United States and, therefore, is not subject to the procedures required 
by 5 U.S.C. 553 and 554. It is exempt from review under Executive Order 
12866 but has been reviewed internally by the Department to ensure 
consistency with the purposes thereof. This rule does not require 
analysis under the Regulatory Flexibility Act or the Unfunded Mandates 
Reform Act. It has been found not to be a major rule within the meaning 
of the Small Business Regulatory Enforcement Act of 1966. It will not 
have substantial direct effects on the States, the relationship between 
the National Government and the States, or on the distribution of power 
and responsibilities among the various levels of government. Therefore, 
in accordance with section 6 of Executive Order 13132, it is determined 
that this rule does not have sufficient federalism implications to 
warrant application of Executive Orders 12372 and 13123. However, 
interested parties are invited to submit written comments to the 
Department of State, Office of Defense Trade Controls, ATTN: Regulatory 
Change, Exemption for U.S. Institutions of Higher Learning, 2401 E. 
Street, NW., 13th Floor, H1304, 2401 E Street, NW., Washington, DC 
20037. Such persons must be registered with the Department's Office of 
Defense Trade Controls (DTC) pursuant to the registration requirements 
of section 38 of the Arms Export Control Act or be an accredited U.S. 
institution of higher learning.

List of Subjects

22 CFR Part 123

    Arms and munitions, Exports.

22 CFR Part 125

    Arms and munitions, Classified information, Exports.
    Accordingly, for the reasons set forth above, title 22, chapter I, 
subchapter M, parts 123 and 125, are being amended as follows:

PART 123--LICENSES FOR THE EXPORT OF DEFENSE ARTICLES

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

    Authority: Secs. 2, 38, and 71, Pub. L. 90-629, 90 Stat. 744 (22 
U.S.C. 2752, 2778, 2797); 22 U.S.C. 2753; E.O. 11958, 42 FR 4311; 3 
CFR, 1977 Comp. p. 79; 22 U.S.C. 2658; Pub. L. 105-261, 112 Stat. 
1920.


    2. Section 123.16(b)(10) is added to read as follows:


Sec. 123.16  Exemptions of general applicability.

* * * * *
    (b) * * *
    (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

[[Page 15101]]

countries and by nationals of countries identified in this section.

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

    3. The authority citation for part 125 continues to read as 
follows:

    Authority: Sections 2 and 38, Pub. L. 90-629, 90 Stat. 744 (22 
U.S.C. 2752, 2778; E.O. 11958, 42 FR 4311; 3 CFR, 1977 Comp. p. 79; 
22 U.S.C. 2658.


    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.

    Dated: March 11, 2002.
John R. Bolton,
Under Secretary, Arms Control and International Security, Department of 
State.
[FR Doc. 02-7347 Filed 3-28-02; 8:45 am]
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