What are export controls?

The U. S. government has passed laws regulating the export of certain defense articles, technical data, services, technology, and software. These laws are based upon many concerns, including concerns of national security, foreign policy, anti-terrorism, proliferation, crime control, and U.N. sanctions. 

Restricted goods and technology may still be exported,  provided they are exempted by the regulations or one obtains prior government approval. Licenses and other agreements can be obtained to authorize export.  

What government agencies regulate export control?

• Department of State. International Traffic in Arms Regulations (ITAR) covers items listed on the United States Munitions List (USML). The USML covers items such as firearms; artillery, ammunition, explosives, toxicological agents, military equipment, space launch vehicles (space shuttle), rocket engines, certain spacecraft (including all remote sensing satellite systems), missile tracking systems, etc. (both the hardware and the technology).

• Department of Commerce—Export Administration Regulations (EAR) covers items on the Commerce Control List (CCL) that are typically “dual use” items, i.e., materials with both civil and military uses. However, the EAR also regulates some items that have solely civil uses. The CCL has ten categories: 
• Nuclear Materials, Facilities and Equipment and Misc.
• Materials, Chemicals, Microorganisms and Toxins
• Materials Processing
• Electronics
• Computers
• Communications, telecommunications
• Optics, Cameras, lasers, radar
• Guidance, navigation, altimeters, avionics
• Submersible systems, scuba, marine equipment
• Propulsion Systems, space vehicles

• Other agencies such as: Drug Enforcement Administration; Food and Drug Administration; Department of Interior; Department of Treasury (US Customs) and Department of Energy

What are the differences between the ITAR and the EAR?

• Under control of two different government departments. ITAR are issued by the Department of State; the EAR by the Department of Commerce
  
• Control different items/technologies. ITAR covers exports of defense articles, technical data, and defense services related to items on the USML; EAR covers exports, re-exports, and activities related to items on the CCL
  
• Different terms and definitions of terms. Some examples are:
• “Fundamental research” exemption in ITAR is limited to U.S. institutions of higher education; EAR exempts qualifying research at other locations (corporations and elsewhere).
• ITAR restricts export of “Technical Data”; EAR restricts release of technology and software.
• ITAR refers to “public domain” information; EAR to “published information.” Coverage differs.
  
• Licensing requirements for technical data export. ITAR requires either an approved Technical Assistance Agreement (TAA) or license for export of Technical Data. No license is required for fundamental research exempted exports; EAR grants automatic licenses for fundamental research exempted releases of technology. EAR does not use TAAs.

What is an export or release of technology?

A general definition is: the transfer of restricted items/information to a “Foreign Person” by any means, anywhere, any time, or the knowledge that what you are transferring to an authorized person will be further transferred to a “Foreign Person.”

Under ITAR, export includes:

• Sending or taking classified/unclassified defense articles out of the United States in any manner; or
  
• Disclosing or transferring by any means classified/unclassified technical data to a Foreign Person, whether in the United States or abroad; or
  
• Performing a classified/unclassified defense service on behalf of, or for the benefit of, a Foreign Person whether in the United States or abroad.

Under EAR, technology is released for export by visual inspection by foreign nationals of U.S.-origin equipment and facilities; oral exchanges of information in the U.S. or abroad; or the application to situations abroad of personal knowledge or technical experience acquired in the U.S. Thus, the release of technology to a foreign national in the U.S. through such means as demonstration or oral briefing is deemed an export. 

What/Who is a Foreign Person?

The simplified definition is: Foreign Persons are those individuals who are not U.S. Citizens, holders of U.S. green cards, or holders of political asylum papers issued by the U.S. Department of states; foreign corporations or other entities; foreign governments; and international organizations.

Foreign Person is defined by the ITAR 22 CFR 120.16 as any natural person who is not a lawful permanent resident as defined by 8 U.S.C. 1101(a)(20) or who is not a protected individual as defined by 8 U.S.C. 1324b(a)(3).  It also means any foreign corporation, business association, partnership, trust, society or any other entity or group that is not incorporated or organized to do business in the United States, as well as international organizations, foreign governments and any agency or subdivision of foreign governments (e.g., diplomatic missions).

Are Universities and colleges exempt from the export laws?

No. Virginia Tech must comply with export laws.  

Are there any exceptions to the export restrictions?

Yes. There are general exemptions and exemptions specifically for U.S. institutions of higher education.

What are the primary exemptions that apply to our University research?

1.      Information that is in the “public domain” or that is “published” does not require government approval for release. 

Under ITAR, “public domain” means information which is published and which is generally accessible or available to the public:

• Through sales at newsstands and bookstores
  
• Through subscriptions available without restriction to any individual who desires to obtain or purchase the published information.
  
• Through second-class mailing privileges granted by the U.S. Government.
  
• At libraries open to the public or from which the public can obtain documents.
  
• Through patents available at any patent office.
  
• Through unlimited distribution at a conference, meeting, seminar, trade show or exhibition, generally accessible to the public, in the United States.
  
• Through public release (i.e., unlimited distribution) in any form (e.g., not necessarily in published form) after approval by the cognizant U.S. Government department or agency.  (Requires use of ITAR exemption 125.4(b)(13)

Under EAR, information is “published” when it becomes generally accessible to the interested public in any form.  The EAR provides several examples and interpretation of examples relevant to University research (EAR, 734.7)

2.      Information that is developed through fundamental research does not require prior government approval for export.

The ITAR exempts 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. Fundamental research is defined to mean basic and applied research in science and engineering where the resulting information is ordinarily published and shared broadly within the scientific community, as distinguished from research the results of which are restricted for proprietary reasons or specific U.S. Government access and dissemination controls. University research will not be considered fundamental research if:

(i)  The University or its researchers accept other restrictions on publication of scientific and technical information resulting from the project or activity, or

(ii)  The research is funded by the U.S. Government and specific access and dissemination controls protecting information resulting from the research are applicable.

Also, information concerning general scientific, mathematical or engineering principles commonly taught in schools, colleges and universities is not regulated. This information is not considered “technical data” that is subject to export control. 

Technical Data is defined by the ITAR 22 CFR 120.10 as: (1) Information other than Software as defined in ITAR 120.10(d), which is required for the design, development, production, manufacture, assembly, operation, repair, testing, maintenance, or modification of defense articles. This includes information in the form of blueprints, drawings, photographs, plans, instructions, and documentation; (2) Classified information relating to defense articles and defense services; (3) Information covered by an invention secrecy order; and (4) Software as defined in ITAR 121.8(f) of this subchapter directly related to defense articles; (5) This definition does not include information concerning scientific, mathematical, or engineering principles commonly taught in schools, colleges, and universities or information in the public domain as defined in ITAR Section 120.11. It also does not include basic marketing information on function or purpose or general system descriptions of defense articles.

The EAR defines “fundamental research” as “basic and applied research in science and engineering, where the resulting information is ordinarily published and shared broadly within the scientific community. (EAR, 734.8)  The EAR does not limit fundamental research to research at institutions of higher education in the U.S. as does the ITAR.

3. Unclassified technical data disclosed to foreign persons who are full time regular employees of U.S. institutions of higher learning. (ITAR 125.4)

This ITAR exception is available if:

• Disclosure is made in the U.S;
  
• Foreign person must be full time regular employee of the institution;
  
• Employee’s permanent abode throughout the period of employment is in the U.S.;
  
• Employee is not a national of a country to which exports are prohibited pursuant to 126.1; and
  
• Institution informs the individual in writing that the technical data may not be transferred to other foreign person without the prior written approval of Office of Defense Trade Controls.

Do the export restrictions apply to University research?

Maybe. Normally, this will depend on whether there are any restrictions on publication of or access to the research results.  The export controls will not apply if the:

• research qualifies under the “fundamental research” exceptions discussed above. Remember that this exception can be lost if (1) the university or its researchers accept restrictions on publication of the research results; or (2) government funded research places specific access and dissemination controls on the research results.
• information concerns general scientific, mathematical or engineering principles commonly taught in schools, colleges and universities. This information is not considered “technical data” that is subject to export control under the ITAR.
• Foreign person qualifies under the ITAR exception and receives written notice from University that he/she cannot transfer the technical data to other foreign persons

How can OSP determine if the export controls apply to the research?

If the project qualifies as fundamental research with the research information to be published and generally accessible or available to the public, no export restrictions will apply. You should review the solicitation and/or contract agreement to see if there are any provisions that would take it out of the fundamental research/public domain exceptions:

• Review the solicitation for any references to export controls
• Look for specific contract clauses that designate research results as export controlled
• Review the research agreement for any restrictions on use of foreign nationals
• Look for the requirement of a technology control plan (TCP)
• Look for any restrictions on publication or access to research results

You should bring any of these items to the attention of the PI. No research should be commenced until it is clear if the research is impacted by the controls or requirements of export regulations.

What happens if the export controls apply to the research (i.e. the research results are not under the fundamental research, public domain, or technical data definition)?

Ask the PI to identify where the research falls, whether under the CCL (covered by EAR) or the USML (covered by the ITAR). Ask the PI to identify any foreign nationals that will be working on the project. Establish procedures with the PI to comply with the applicable regulations. The appropriate procedure will depend on whether the export is subject to the ITAR or the EAR. The procedures  could include the following:

Under the ITAR, obtain:

• Written notification to the foreign national not to further transfer the technical data
  
• Development of a technology control plan (TCP) for the conduct of the research 
  
• Technical Assistance Agreement for export of technical data (Part 124)
  
• License for export (Part 125)

 Under the EAR, obtain license for export.

The ITAR requires approval of the Office of Defense Trade Controls (ODTC) before defense services can be furnished. The defense service that we are primarily concerned with is the “furnishing to foreign persons of any technical data.” A TAA that is approved by the ODTC will allow us to use foreign students without green cards on the research projects. 

The TAA must describe the assistance and technical data to be furnished, the duration of the agreement, and must specifically identify the countries to receive the technical data. Thus, the TAA will include the names, nationality, and signature of each foreign student.

If the TAA meets the requirements specified in the ITAR and is approved by the ODTC, no further licensing agreement is required.

When is a licensing agreement required?

Items subject to ITAR require a license prior to export unless they are “in the public domain” or fall within one of the exemptions. Thus, no license is required for the export of information that qualifies as fundamental research. Also, no license is required for the release of technical data that is approved for public release by the government (whether or not it is actually released). 

Under EAR, information that qualifies for the fundamental research exemption is automatically licensed. A license is required for other exports.

What are the penalties for violating export control laws?

Penalties for noncompliance range from a reprimand to criminal penalties. Individuals can be subject to fines and/or jail time for violating the regulations.

What clause should be included in contracts where the research results may be subject to export control?

Both parties will fully comply with all applicable U.S. federal export laws and regulations; further, prior to the initiation of the Research, Sponsor will notify VIRGINIA TECH at least fifteen (15) days prior to shipment if material, equipment or technical information to be supplied by Sponsor is subject to such federal regulations, and Sponsor shall, as far as practical, explain the basis or limits of such regulation. Due to the associated regulatory constraints and compliances, VIRGINIA TECH, without prejudice, may decline receipt of such material, equipment or technical information, and/or discontinue further work  if such export compliances are deemed incompatible to its normal operational processes.

Who do I contact if I have questions on export controls?

Contact David Brady (dbrady@vt.edu), Director of Export and Secure Research Compliance.