How export control regulations apply to your activities
Ultimately, you are responsible for understanding and complying with Export Administration Regulations (EAR) and International Traffic in Arms Regulations (ITAR) when they apply to your research projects and results. The following guidance can help you understand how these regulations apply to your activities. It can help you identify situations in which further guidance is needed.
1. How do I know if export controls apply to a grant/contract?
ITAR places strict controls on the export of “defense articles” and “defense services.” Defense articles include any item or technical data on the United States Munitions List, and defense services include the furnishing of assistance to foreign persons, whether or not in the United States, with respect to defense articles, and the furnishing of any technical data associated with a defense article.
The EAR Commerce Control List is more complicated. Restricted technologies are divided into 10 broad categories, and the specific restrictions depend on the specifics of the technology and where it’s being exported.
Going back to the original question, there is one crucial thing to remember: You cannot depend on the contract terms to know whether or not export controls apply. Whether or not the agreement specifically invokes or refutes a particular export control regulation is irrelevant to the question of whether or not the export control applies. For example:
- The contract says, “This work may be subject to ITAR,” but the work has nothing to do with anything on the ITAR Munitions List. Since the technology is not on the list, ITAR doesn’t apply.
- The contract says, “This work is exempt from ITAR,” but the work is researching defensive measures against biological weapons. This technology is on the ITAR Munitions List (Category XIV, Section C) so ITAR applies.
2. What do I do if I think export controls may apply to a grant/contract?
Do everything you can to ensure that the work performed at WSU falls within the parameters of the following exclusions:
- Fundamental Research Exclusion (FRE): Applies for basic and applied research in science and engineering performed by universities so long as that research is carried out openly and without restrictions on publication or access to or dissemination of the research results. (Be aware that the FRE differs from EAR and ITAR regulations. See 734.8 of the EAR and 120.10 and 120.11 of the ITAR for official definitions.)
- Public Domain Exclusion: Applies if the information is in the public domain, i.e., if it is published and generally accessible to the public through unlimited and unrestricted distribution.
- Teaching Exclusion: Authorizes the disclosure of educational information released by instruction in catalog courses or general scientific, mathematical, or engineering principles commonly taught in universities without a license.
3. Is there more information on the Fundamental Research Exclusion?
Both ITAR and EAR include language that exempts “fundamental research” from export control.
Using ITAR as an example, while the regulations restrict the flow of technical data they also stipulate (Sec 120.10) that the “definition [of technical data] does not include information concerning general scientific, mathematical or engineering principles commonly taught in schools, colleges and universities or information in the public domain as defined in Section 120.11.”
Section 120.11, then, defines information in the public domain to include fundamental research, which “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.”
But, per Section 120.11, Subsections 7(i) and 7(ii), our work is no longer considered “fundamental research” if a) we accept restrictions on the publication or dissemination of scientific or technical data, or b) the work is funded by the U.S. government and either access or dissemination controls are applied.
In addition, the fundamental research exclusion applies specifically to results of research, but the inputs to the project may remain export controlled. For example, confidential/proprietary information shared by a sponsor of the project may be export controlled and should not be shared with foreign nationals without first conducting an export control review. Similarly, providing export controlled technical data on a piece of laboratory equipment used by foreign nationals during the conduct of the research may require an export license (a.k.a. “deemed export”).
4. So I should focus on the publication clauses in the grant/contract?
Yes. If you suspect a project may be subject to export control, the first, best way to deal with this is to make sure there are absolutely no restrictions of any kind on our ability to publish the work.
Review and comment are okay, limited-time delay for patent protection is okay, but don’t give the sponsor the right to remove information of any sort from the publication. And watch out for dissemination restrictions in other parts of the agreement. The Office of Research Support and Operations will assist in this review.
Remember: Any information the sponsor can require be removed from a publication or otherwise restrict from dissemination will be information that falls outside the FRE.
But once you have publication nailed down, don’t forget the access issue. If the project is funded by the feds, and this includes flow-through funding, access restrictions also kick us out of the FRE. To remain safely within the FRE, you’ll need to get any restrictions on the kinds of personnel who can work on the project (e.g., no foreign nationals) out of the agreement.
5. What are some grant/contract clauses to look for that WSU will not agree with?
- “The parties acknowledge that the subject of this agreement may be subject to ITAR, EAR and/or other export control regulations as mandated by federal law. University agrees to indemnify, defend and hold Sponsor harmless from any and all suits, damages or other liabilities resulting from the violation of such regulations.”
- DFAR 252.204-7000, Disclosure of Information
“(a) The Contractor shall not release to anyone outside the Contractor’s organization any unclassified information…”
- FAR 52.227-17, Rights in Data, Special Works
(d) Release and use restrictions. Except as otherwise specifically provided for in this contract, the Contractor shall not use for purposes other than the performance of this contract, nor shall the Contractor release, reproduce, distribute, or publish any data first produced in the performance of this contract, nor authorize others to do so, without written permission of the Contracting Officer.
6. But as long as there are no publication restrictions and no personnel restrictions, I can be confident the FRE applies, right? Does the project require us to produce and/or deliver any actual materials, i.e., equipment, devices or other embodiments of the technology at hand?
Recall that the FRE is extracted from the provisions that exempt from technical data, information that is in the public domain and that information in the public domain includes fundamental research. Accordingly, the FRE applies only to data/information. Equipment and other materials can’t be exempted under the FRE.
So, for example, while data relating to a system for defending against anthrax could, depending on the publication and personnel terms, stay within the bounds of the FRE, as soon as we actually build an anti-anthrax device, we’re back under the export controls.
Said another way: the availability of an exemption for fundamental research relating to defense articles and defense services controlled under ITAR is highly limited. Therefore, any work being conducted in the areas covered by the USML must be restricted so that foreign nationals do not have access to the work being conducted or to the resulting data, unless:
- an export license has been obtained;
- governmental approval to proceed without an export license has been obtained;
- the director, Office of Research Support and Operations and the vice president for research have determined that the ITAR does not impose restrictions under the facts of the particular situation.
NOTE: If the work is going to be subject to export control regulations and can’t be covered under the FRE, there are a few things that will likely need to happen.
- First, WSU is probably going to have to produce a Technology Control Plan that explains how we’re going to ensure that we don’t violate any of the export control laws. This will necessarily involve WSU’s research compliance officer, assistant attorney general, the director of ORSO, and the vice president for research.
- Second, at the very least, the PI’s chair and dean are going to need to sign off on the project and do so in a way that explicitly acknowledges the export control issue. (The REX form alone is not enough.)
- Third, it’s possible that the project will need to be reviewed and approved by the Faculty Senate, the vice president, or someone else at the University with the authority to put WSU’s reputation and finances on the line.
Details of these responsibilities will be managed on a case-by-case basis.
7. What is involved in obtaining an export license?
A request must be submitted to either the Department of Commerce for EAR-controlled items or the Department of State for ITAR-controlled items. A request for an export license would be initiated through the office of the vice president for research.
For questions about compliance with export control regulations, please contact:
- WSU Office of Research Support and Operations (ORSO)
For all questions related to contract/award language
- WSU Office of Research Assurances
For all other export-control-related inquires