DOD Revises Export Control Rules
On August 8th DOD published revisions to DFAR 252.204-7000 clause concerning the publication of unclassified information. The revision will now require the DOD Contracting Officer to state in writing that the research qualifies as "fundamental research". DFAR 7000 is a restriction on the university's right to publish information (requires DOD prior approval) and the Fundamental Research Exemption is an exemption allotted to universities for this research being covered under export control law. This ruling will now make it more difficult for universities to claim the exemption. It will have the most impact on DOD contracts that flow to the university through a defense contractor. It is best to claim or have the DOD Contracting Officer state a contract or the university portion of the contract is fundamental research at the time of proposal. This would hopefully address the clause and the type of research before or as the contract is issued. Please work closely with the Office of Grant and Contract Services when preparing a proposal funded by DOD.
EXPORT CONTROL OVERVIEW
The United States Federal Export control 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 since the 1980s.. 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 tragic events of September 11, 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 UT Arlington understand their obligations under these laws and regulations and comply with them.
The laws and regulations cover virtually all fields of science and engineering prohibiting the unlicensed export of certain materials or information for reasons of national security or protection of trade Understanding three basic concepts related to export control is essential:
1. the nature of the technology that is export 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” (Supplement No. 1 to part 774 of the EAR Categories 0-9) under the EAR (http://www.access.gpo.gov/bis/ear/ear_data.html.) and/or ITAR (http://pmddtc.state.gov/official_itar_and_amendments.htm) 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 researcher or student in a UT Arlington 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.
*A special thank you to MIT for the materials used to prepare this document.
Current export law controls both hardware and information concerning a wide range of designated “technologies” in a way that may have a substantial impact on research at UT Arlington. 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 UT Arlington 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 contactJeremy Forsberg, Director, Office of Research Administration.
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 UT Arlington 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.
The consequences of violating these regulations can be quite severe, ranging from loss of research contracts to monetary penalties to jail time.
UT Arlington 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 Administration, and all faculty and researchers at UT Arlington 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 export control regulations.
Principal investigators, prior to commencing any research, shall have responsibility:
- To review and cooperate with the Office of Research Administration to determine whether their research is impacted by the controls or requirements contained within export regulations, and
- To re-evaluate in cooperation with the Office of Research Administration that export control 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 (license) , 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.
Export control restrictions have been in place for many years. However, recent events have brought these issues to the forefront once again. All activities at UT Arlington (grant, cooperative agreement, contract, etc.) are 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 UT Arlington 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). UT Arlington will engage UT System legal counsel when particularly difficult situations arise. The University’s Empowered Official and initial contact for matters relating to export controls is Jeremy Forsberg, Director, Office of Research Administration .
Export Administration Regulations (EAR) Database
International Traffic In Arms Regulations (ITAR)
POTENTIAL CHALLENGES REGARDING EXPORT CONTROL AND FOREIGN TRAVEL FOR FACULTY AND STAFF
Travel to most countries does not usually constitute an export control problem. In most cases, items such as a personal laptop computer and other “tools of the trade” do not require a license except for travel to Cuba and in some cases to the Sudan. However, “tools of the trade” must remain under the “effective control” of the employee if the travel is to certain countries such as North Korea, Iran, Syria, and in some cases to the Sudan. In addition, if your laptop is loaded with certain encryption software, “effective control” must be maintained in a broad range of countries. “Effective control” means you must keep the item in your physical possession or keep it secured in a place such as a hotel safe, a bonded warehouse, or a locked or guarded exhibition facility.
Currently, the “tools of the trade” exception does not apply to controlled technology. In other words, theBureau of Industry and Security (BIS) would require a license to take certain technologies found on the BIS Commerce Control list (CCL) (Supplement No. 1 to part 774 of the EAR Categories 0-9), depending on the technology and the country.
Travel to certain sanctioned countries would require a license from the Office of Foreign Asset Control (OFAC), or could, in fact, be denied. OFAC also has regulations regarding money transactions, including bank transfers, and the exchange of goods and services in certain sanctioned countries.
A license would be required if you are taking an item found on the Department of State’s U.S. Munitions List (USML). A license would be required if you are providing a defense service (includes training) to a foreign person whether here in the U.S. or abroad. A license would also be required if you are supplying controlled (on the CCL) technology to a foreign person during a presentation or conference that is not open to the public domain.
There are various lists of persons and entities kept by the Department of State, OFAC, and BIS that we are prohibited from doing business with; in other words, we should not be providing them with a defense service (includes training), giving money to these people or organizations, or providing them with controlled (on the CCL) proprietary technology. We can be fined by the government agencies if we do business with any person or entity found on these lists.
Please contact the Office of Regulatory Services, if you have any questions regarding export control issues related to your research projects or travel outside the U.S. at 817-272-3723 or via e-mail firstname.lastname@example.org.