OVERVIEW

Export control laws, federal laws implemented both by the Department of Commerce through its Export Administration Regulations (EAR) and the Department of State through its International Traffic in Arm Regulations (ITAR), have been in existence for more than twenty years. They are the law of the land. As such, institutions of higher education and their employees are required to comply with these laws and regulations. Criminal sanctions, including monetary fines and/or prison sentences for individuals can apply for violation of these laws and regulations.

Following the events of September 11, the export control regulations have become more prominent and scrutiny concerning the level of compliance with these regulations has heightened. It is important that faculty and other researchers at UTA understand their obligations under these laws and regulations and comply with them.

The laws and regulations cover virtually all fields of science and engineering. They, however, prohibit the unlicensed export of only certain materials or information for reasons of national security or protection of trade. In the case of academic or research institutions, there is an exclusion for fundamental research, the results of which are or are about to be or, in some cases, ordinarily are publicly available. Understanding three basic concepts related to export control is essential:

1. the nature of the technology that is expert controlled and how it is recognized
2. the fundamental research exclusion, and
3. what is a “deemed export.”

A few items deserve special emphasis:

1. The vast majority of exports do not require government licenses. Only exports that the U.S. government considers “license controlled” under the EAR and ITAR require licenses (note that some controlled exports don’t require a license). Export controlled transfers usually arise for one or more of the following reasons:

• The nature of the export has actual or potential military applications or economic protection issues,
• Government concerns about the destination country, organization, or individual,
• Government concerns about the declared or suspected end use or the end user of the export.

2. Even if an item appears on one of the lists of controlled technologies, generally there is an exclusion for “fundamental research.” For research to be considered “fundamental research” there cannot be restrictions on publication, of the research or other restrictions on dissemination of the research and related information. Also, in some cases as long as the research or information is made public or intended to be made public it can qualify as “fundamental research.”

3. When an item is controlled, a license may be required before the technology can be exported. This requirement relates not only to tangible items (prototypes or software) but also to the research results themselves. Further, the term “export” can mean not only technology leaving the country of the United States (including transfer to a U.S. citizen abroad whether or not it is pursuant to a research agreement with the U.S. government), but also transmitting the technology to an individual other than a U.S. citizen or permanent resident within the United States. Even a disclosure to a foreign research or student in a UTA laboratory is considered a “deemed export.”

4. There are certain countries where it is the policy of the United States generally to deny licenses for the transfer of these items. These countries are currently Afghanistan, Armenia, Azerbaijan, Belarus, Cuba, Iran, Iraq, Libya, North Korea, Sudan, Syria, Tajikistan, and Vietnam.

Clearly most of the research activities in which UTA is involved are excluded from export controls because UTA can assert the fundamental research exclusion. However, when this is not the case (such as when one needs to export a tangible research item, such as a prototype or software) it is critically important to being the process of seeking a license from either the Department of Commerce or State Department (as applicable) early, since it can take six months or more to receive a license after the submission of the license application.

*A special thank you to MIT for allowing us to use there materials in preparing this document.

EXPORT CONTROLS

I. INTRODUCTION

Current export law controls both hardware and information concerning a wide range of designated “Defense Articles” in a way that may have a substantial impact on research at UTA. As a general proposition, a “deemed export” (one requiring a license and imposing access restrictions) exists whenever a foreign national on U.S. soil may be exposed to or be able to access in any manner an export-controlled item or information.
From the current federal regulations may flow a cascade of effects adverse not only to research at UTA but also to U.S. universities generally. Although there is a general exception for “fundamental research” under the export control regulations, certain universities have been informed either by manufacturers or by governmental agencies that scientific equipment provided to them or developed by them is subject to export controls.
The following information is provided to assist principal investigators and contract administrators in determining whether the research they are proposing may be subject to export controls. It is intended to promote understanding of and compliance with the regulations by all persons involved in research. If you have questions about how the export regulations apply to specific research, please feel free to contact Jeremy Forsberg, Manager for Grant & Office Administration, Research Administration.

II. BACKGROUND

Regulations promulgated and enforced by the Department of Commerce, Export Administration Regulations (EAR), and the Department of State, International Trafficking in Arms Regulations (ITAR), prohibit, for reasons of national security or protection of trade, the unlicensed export of specific technologies. If UTA research involves such specified technologies, the EAR and/or ITAR may require the University to obtain prior approval from the U. S. Departments of State or Commerce before allowing foreign nationals to participate in the research, partnering with a foreign company and sharing research—verbally or in writing—with persons who are not United States citizens or permanent resident aliens.

Export control regulations have the potential to undermine publication rights and prohibit international collaboration if the dissemination of University research is not placed in the public domain and does not qualify for the fundamental research exclusion (see definition below). The consequences of violating these regulations can be quite severe, ranging from loss of research contracts to monetary penalties to jail time.

UTA is working with the Council on Government Relations (COGR), the Association of American Universities (AAU), and other nationally recognized research universities to exclude all fundamental university research from export regulation. Until such time as those efforts are successful, the University, through the Office of Research (OR), and all faculty and researchers at UTA must conduct a thorough review of research projects and contract provisions to determine whether and, if so, how a particular research project is impacted by those regulations.

Principal investigators, prior to commencing any research, shall have responsibility:

• To review and cooperate with OR to determine whether their research is impacted by the controls or requirements contained within export regulations, and
• To re-evaluate in cooperation with OR that determination before changing the scope or adding new staff to the project to determine if such changes alter the initial determination; and
• To make export determinations far enough in advance to obtain an authorization, should one be required.

The University will assist PI's in assessing the application of such regulations, but primary compliance responsibility must rest with the principal investigator of the research.

III. DEFINITIONS

Export control decisions depend on a correct understanding of the following terms. The official regulatory definition should be consulted in specific applications.

A. The term export, as used in export control regulations, has an expansive meaning. Generally, an export includes any: (1) actual shipment of any covered goods or items; (2) the electronic or digital transmission of any covered goods, items or related goods or items; (3) any release or disclosure, including verbal disclosures or visual inspections, of any technology, software or technical data to any foreign national; or (4) actual use or application of covered technology on behalf of or for the benefit of any foreign entity or person anywhere. The official definition of export under the EAR and ITAR should be consulted when determining whether a specific act constitutes an export. As is evident in many instances, export is defined so as to preclude the participation of foreign graduate students in research that involves covered technology without first obtaining a license from the appropriate government agency.

B. The Export Administration Regulations (EAR), Title 15, sections 730-774 of the Code of Federal Regulations (CFR) are promulgated and implemented by the Department of Commerce. The EAR regulate the export of goods and services identified on the Commodity Control List (CCL), Title 15 CFR section 774, Supp. 1. The complete text of the EAR and CCL are available online at http://www.access.gpo.gov/nara/cfr.

C. The International Traffic in Arms Regulations (ITAR), 22 CFR sections 120-130, are promulgated and implemented by the Department of State and regulate defense articles and services and related technical data that 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.access.gpo.gov/nara/cfr (Gov’t Printing Office site) and at http://www.fas.org/spp/starwars/offdocs/itar (Website for the Federation of American Scientists).

D. Commodity Jurisdiction Ruling: Where an article is arguably covered by both the EAR and ITAR, a request can be made to the State Department to determine which agency will have jurisdiction over the export of the article.

E. Fundamental Research, as used in the export control regulations, includes basic or applied research in science and/or engineering at an accredited institution of higher learning in the United States where the resulting information is ordinarily published and shared broadly in the scientific community. Fundamental research is distinguished from research that results in information that is restricted for proprietary reasons or pursuant to specific U.S. Government access and dissemination controls.

a. University research will not be deemed to qualify as Fundamental Research if:

i. The University or research accepts any restrictions on the publication of the information resulting from the research, other than limited prepublication reviews by research sponsors to prevent inadvertent divulging of proprietary information provided to the researcher by sponsor or to insure that publication will not compromise patent rights of the sponsor; or
ii. The research is federally funded and specific access and dissemination controls regarding the resulting information have been accepted by University or the researcher. The citation for the official definition of Fundamental Research under the EAR is 15 CFR § 734.8. The ITAR citation is 22 CFR § 120.11.

F. Public Domain (22 CFR 120.11) means information that is published and that is generally accessible or available to the public:

a. Through sales at newsstands and bookstores;
b. Through subscriptions which are available without restriction to any individual who desires to obtain or purchase the published information;
c. Through second class mailing privileges granted by the U.S. Government;
d. At libraries open to the public or from which the public can obtain documents;
e. Through patents available at any patent office;
f. Through unlimited distribution at a conference, meeting, seminar, trade show or exhibition, generally accessible to the public, in the United States;
g. 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
h. Through fundamental research.

IV. SUMMARY

Export control restrictions have been in place for many years. However, recent events have brought these issues to the forefront once again. Every award (grant, cooperative agreement, contract) is subject to the export control regulations whether or not there is an explicit clause within the award document. Also, individuals carry responsibilities with regard to the export of certain materials on the critical technology list. Although most activities UTA is involved in meet the exclusion test as fundamental research, some do not (such as when the activity is, in export language, a “deemed export” such as a training activity). UTA will engage UT System legal counsel when particularly difficult situations arise. The University’s initial contact for matters relating to export controls is Dr. Ronald Elsenbaumer, Vice President for Research.

Export Administration Regulations (EAR) Database
International Traffic In Arms Regulations (ITAR)

FREQUENTLY ASKED QUESTIONS

Current export law controls both hardware and information concerning a wide range of technologies in a way that may have a substantial impact on research at UTA. Federal regulations control the conditions under which certain information, technologies, and commodities can be transmitted overseas to anyone, including U.S. citizens, or to a foreign national on U.S. soil. The following Q&A may help clarify some of the requirements.

1. What is an export?
The export regulations define an export as:

• Any oral, written, electronic or visual disclosure, shipment, transfer or transmission outside of the United States to anyone, including a U.S. citizen, of any commodity, technology (information, technical data, or assistance) or software/codes
• Any oral, written, electronic or visual disclosure, transfer or transmission to any person or entity of a controlled commodity, technology or software/codes with an intent to transfer it to a non-U.S. entity or individual, wherever located (even to a foreign student or colleague at UTA)
• Any transfer of these items or information to a foreign embassy or affiliate.

It is important to emphasize that only exports for which the U.S. government requires a license are those that are listed on the export controlled lists. The vast majority of exports do not require the prior approval of the U.S. government.

2. Who controls exports?
There are two government agencies that control exports:

• The United States Department of Commerce through its Export Administration Regulations (EAR), Title 15, sections 730-774 of the Code of Federal Regulations. For a list of controlled technologies, see 15 CFR 774, Supplement I.
• The United States Department of State (which controls the export of “defense articles and defense services”) under the International Traffic in Arms Regulations (ITAR), 22 CFR 120-130. For a list of controlled technologies, see 22 CFR 121.1.
• A complete on-line version of the EAR and ITAR (including the critical technology list) is available on-line at:
  http://www.access.gpo.gov/nara/cfr (EAR)
  http://www.fas.org/spp/starwars/offdocs/itar/p121.htm (ITAR)

3. What is fundamental research?
Fundamental research, as used in the export control regulations, includes basic or applied research in science and/or engineering at an accredited institution of higher learning in the United States where the resulting information, in some cases, is ordinarily published and shared broadly in the scientific community and, in other cases, where the resulting information has been or is about to be published. Fundamental research is distinguished from research that results in information that is restricted for proprietary reasons or pursuant to specific U.S. government access and dissemination controls. University research will not be deemed to qualify as fundamental research if:

• The university or research institution accepts any restrictions on the publication of information resulting from the research, other than limited prepublication reviews by research sponsors to prevent inadvertent divulging of proprietary information provided to the researcher by the sponsor; or
• The research is federally funded and specific access or dissemination controls regarding the resulting information have been accepted by the university or the researcher.

4. What is considered published information as used in Question 3?
The EAR and ITAR approach the issue of publication differently. For the EAR, the requirement is that the information has been, is about to be, or is ordinarily published. The ITAR requirement is that the information has been published.

Information becomes “published” or considered as “ordinarily published” when it is generally accessible to the interested public through a variety of ways. Publication in periodicals, books, print, electronic or any other media available for general distribution to any member of the public or to those that would be interested in the in a scientific or engineering discipline. Published or ordinarily published material also include the following:

• Readily available at libraries open to the public;
• Issued patents; and,
• Releases at an open conference, meeting, seminar, trade show, or other open gathering.
  
  A conference is considered “open” if all technically qualified members of the public are eligible to attend and attendees are permitted to take notes or otherwise make a personal record (but not necessarily a recording) of the proceedings and presentations. In all cases, access to the information must be free or for a fee that does not exceed the cost to produce and distribute the material or hold the conference (including a reasonable profit).

5. What is public domain and why is it important?
Public domain is the term used for “information that is published and generally accessible or available to the public” through a variety of mechanism. Publicly available software or technology is that which already is, or will be, published. To fall under this exclusion, there are a number of conditions which demonstrate public availability which are enumerated in the EAR.

6. If a license is needed, what is the process?
UTA has designated Jeremy Forsberg as the Responsible University Official for export control regulations. She will arrange appropriate support within the University and, where necessary, outside the University to address export control and license issues. Unless there is an urgent need for expedited review and approval, it normally takes six months or longer to secure a license to export controlled materials from the U.S. or to transmit them to a non U.S. citizen or permanent resident within the U.S.