Satellites to Return to Commerce?- What a Blessing

Thanks to Clif Burns, below is a link to an article referring to Rep. Ellen Tauscher who is the Obama nominee for Under Secretary of State for Arms Control and International Affairs. One of her pre-hearing answers implies that she would favor returning communication satellites to Commerce would be a big boost to space researchers and universities.

Under ITAR there are so many obstacles for investigators to overcome particularly when the project involves foreign collaborators (which almost all do in a university setting). It took me 2 months to just use the Canadian exemption to transfer technical data to a Canadian company to build a prototype for one of our space research projects. And that was just for an exemption, not a license! The paperwork alone was almost not worth the effort. So if satellites return to the CCL under Commerce the process of classification and licenses would be so much smoother and efficient, and a license may not be needed at all. Indeed this would be a blessing to export compliance officers who struggle with this issue under the ITAR.

"State Nominee Favors Return of Satellite Issues to Commerce"
From the ExportLawBlog.com Posted by Clif Burns at 6:20 pm on June 11, 2009
http://www.exportlawblog.com/archives/518

Fundamental Research Exclusion (FRE)

You may already know that the majority of university research will fall under the Fundamental Research Exclusion (FRE), but did you know of the important differences in the definitions among the three major export control regulations: OFAC, EAR and ITAR?

Under the ITAR the definition of FRE is basic and applied research in engineering and the sciences conducted at a U.S. institution of higher education where the results are published broadly among the scientific community. This FRE definition does not allow publication restrictions or dissemination access controls (restrictions on foreign nationals from participation).

Under the EAR, FRE is basic and applied research where the results are broadly published among the scientific or public community. Note that geographic location and locus of the organization are not restricted. Additionally, dissemination access controls will not usually trigger a need for a license as long as the organization follows the security controls of the contract or agreement. Publication restrictions are not allowed except for pre-review to remove proprietary information.

Under OFAC there is no FRE. However, there is an exemption for informational materials already in existence in the public domain. Also, OFAC has stated that there are no restrictions for persons from embargoed countries to participate in federally sponsored research as long as the foreign national agrees not to transfer the research information or technology to their home country through any means including electronic, hand carrying, or phone. It is recommended when using this guidance that a signed statement from the foreign national be obtained to insure their understanding of protecting the data or technology.