Guidelines For Export-Controlled Research
I. Background
Old Dominion University (ODU) encourages instruction, research, and services to be conducted openly and without prohibitions on the dissemination of the research results. It recognizes the Export Administration Regulations (EAR), as promulgated and enforced by the Department of Commerce, and the International Traffic in Arms Regulations (ITAR), as promulgated and enforced by the Department of State, which prohibit the export of specific unlicensed technologies for reasons of national security or protection of trade.
If research is controlled under the EAR or ITAR, the university or the Old Dominion University Research Foundation (ODURF) may be obligated to obtain a license from State or Commerce as a condition of allowing foreign nationals to participate in the research, conducting the research in cooperation with a foreign company or foreign colleagues, sending research equipment to foreign countries, or sharing research technology with persons who are not United States citizens or permanent resident aliens.
In addition to the EAR and ITAR, the Office of Foreign Assets Control (OFAC) in the Treasury Department administers and enforces boycotts that have been imposed against specific countries based on reasons of foreign policy, national security, or international agreements. Full descriptions of all countries currently subject to boycott programs are available at http://www.treas.gov/offices/enforcement/ofac/sanctions/.
Export control regulations and OFAC boycott programs have the potential to often impact the quality of research, undermine publication rights, and prohibit international collaboration if the dissemination of research is not placed in the public domain and does not qualify for the fundamental research exclusion. The consequences of violating these regulations can be quite severe, ranging from loss of research contracts to monetary penalties to jail time for the individual violating these regulations.
Consequently, now more than ever, the ODU Office of Research (ODUOR), ODU Research Foundation (ODURF), and principal investigators (PIs) will need to work together to review research projects, requests to ship equipment abroad, and research, nondisclosure and other agreements to determine whether and to what extent they implicate export control regulations.
This guideline is intended to promote understanding of and compliance with the regulations by all persons involved in research.
II. Definitions
Export. Export control regulations define “export” to include an actual shipment, transfer or transmission of items controlled under the EAR or ITAR out of the United States; any written, oral or visual release or disclosure of controlled technology, information or software to a foreign national either in the United States or outside the United States, or any use or application of controlled technology on behalf of or for the benefit of any foreign entity or person anywhere. Deemed export is used often to preclude the participation of foreign national students and scientists in research that involves controlled technologies without first obtaining a license from the appropriate government agency. The official definition of export under the EAR (available at http://www.access.gpo.gov/bis/ear/pdf/772.pdf) and the ITAR should be consulted when determining whether a specific act constitutes an export.
The Export Administration Regulations (EAR), Title 15, sections 730-774 of the Code of Federal Regulations (CFR) are promulgated and enforced by the Bureau of Industry and Security in the Department of Commerce. Technologies and products that are controlled under the EAR are identified on the Commodity Control List (CCL), Title 15 CFR 774, Supp. 1, and divided into categories to include: Nuclear Materials, Facilities and Equipment, and Miscellaneous; Materials, Chemicals, “Microorganisms,” and Toxins; Materials Processing; Electronics Design, Development and Production; Computers; Telecommunications and Information Security; Sensors; Navigation and Avionics; Marine; and Propulsion Systems, Space Vehicles, and Related Equipment; and encryption source code and object code software. The complete text of the EAR and CFR are available online at http://www.access.gpo.gov/bis/ear/ear_data.html and http://www.gpoaccess.gov/cfr/index.html, respectively. The EAR controls technologies and products that serve primarily civil purposes, but may also have military applications.
Foreign National. Both the EAR and ITAR define “foreign national” as 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, and any natural person who is not a citizen or lawful permanent resident of the United States (as defined by 8 U.S.C. 1101(a)(20) (http://www4.law.cornell.edu/uscode/8/1101.html)) or who does not qualify as a protected individual (as defined by 8 U.S.C. 1324(a)(3) (http://www4.law.cornell.edu/uscode/8/1324.html)).
Fundamental Research, as defined in EAR, means basic and applied research in science and/or engineering where the resulting information is ordinarily published and shared broadly in the scientific community. Fundamental Research is distinguished from research where the results are restricted for proprietary or specific national security reasons. University research will not qualify as Fundamental Research if: the university or researcher accepts any
restrictions on the publication of the information resulting from the research, other than limited prepublication reviews by research sponsors to prevent inadvertent disclosure of their proprietary information or the compromise of the patent rights of sponsors; or the research is federally funded and the University or the researcher accepts specific access and dissemination controls regarding the resulting information. The EAR definition of Fundamental Research is available at 15 CFR § 734.8 (http://www.access.gpo.gov/nara/cfr/waisidx_01/15cfr734_01.html). The equivalent definition under ITAR, Public Domain, is located at 22 CFR § 120.11 (http://www.access.gpo.gov/nara/cfr/waisidx_01/22cfr120_01.html).
The International Traffic in Arms Regulations (ITAR), 22 CFR §§ 120-130, are promulgated and enforced by the Office of Defense Trade Controls in the Department of State. Technologies, products and information that are controlled under ITAR are identified on the Munitions Control List (MCL), 22 CFR § 121.1. Complete, on-line versions of the ITAR and MCL are available online at: http://www.gpoaccess.gov/cfr/index and at http://www.fas.org/spp/starwars/offdocs/itar. The ITAR controls technologies, products and information that primarily serve military purposes.
Public Domain is defined in the ITAR (22 CFR 120.11) as information that is “published and generally accessible or available to the public: through sales at newsstands and bookstores; through subscriptions which are 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; and through fundamental research. The EAR definition of Public Domain is located at http://www.access.gpo.gov/nara/cfr/waisidx_01/15cfr734_01.html.
III. Guidelines
The university, along with ODURF, has developed the following processes and guidelines to help grant and contract administrators, PIs and other persons engaged in research at the university decide whether the EAR and/or ITAR affect a particular research project and identify appropriate actions to take.
Principal Investigators have the following general responsibilities:
Cooperate with ODUOR and ODURF in determining the applicability of export control requirements to research before starting any research; and
Notify both ODUOR and ODURF of any changes in the scope or staffing of research projects that could alter initial determinations about the applicability of export control regulations; and
Notify both ODUOR and ODURF well in advance of sending scientific or computational equipment, including GPS equipment, and encrypted software out of the country in order to determine if a license is required; and
Send all nondisclosure agreements to ODUOR and ODURF for review and modification of any provisions that could eliminate institutional exclusions from export control requirements; and
Contact both ODUOR and ODURF before engaging in research activities with persons in countries subject to OFAC boycott programs.
The ODUOR and ODURF will help PIs assess the application of export control regulations and OFAC boycotts to specific projects, but primary responsibility for compliance rests with the PI.
With respect to specific research contracts, nondisclosure agreements, teaming agreements and other research contracts, the responsibility for making export control decisions will be shared among grant and contract administrators, PIs and others as follows:
- If the PI knows that a research contract, nondisclosure agreement or material transfer agreement may or will require shipping scientific or computational equipment out of the country or transmitting technology to foreign persons abroad, the PI should highlight those facts when submitting the proposal to ODURF.
- The designated grant and contract administrator will review the research contract, nondisclosure agreement or material transfer agreement for any terms or provisions that restrict access to the research or research information, limit the participation of foreign persons in the research, restrict the release of research results, or otherwise render inapplicable the exclusion for fundamental research conducted in the public domain.
If the grant and contract administrator determines that provisions of the contract render the fundamental research and public domain exceptions inapplicable, and/or if such provisions cannot be eliminated through negotiation, the grant and contract administrator will consult with the PI to determine whether the technology or other material to be used in research is controlled under the CCL or the MCL. In consultation with ODUOR, ODURF will make a final determination as to whether export control regulations apply to the project and will provide written notice of the determination to the PI, the department chair, the dean, and the vice president for research.
In situations where a technology is arguably covered by both the EAR and ITAR, the university or ODURF may submit a Commodity Jurisdiction Request to the Office of Defense Trade Controls to decide whether Commerce or State has jurisdiction.
If the decision is that a license is required, ODURF will send written notice of that decision to the PI, vice president for research, and the appropriate dean and department chair along with recommendations on how to proceed. Ultimately, a decision will need to be made whether to seek contract modifications to eliminate the need for a license, to reject the contract, to seek an exception to university policy to allow the project to continue, or take other appropriate actions. The grant and contract administrator will work with the PI and other appropriate parties to implement the determination.
All export control decisions will be documented and kept on file by both ODUOR and ODURF.
