Other Conduct of Research Issues
Primarily the Department of Commerce through the Export Administration Amendments Act and the Arms Export Control Act governs the exportation or dissemination of technical data and research results or inventions. The Department of State and the Department of Defense, among others, play a role in enforcing regulations that apply not just to exports of goods overseas, but also to "deemed exports," which are disclosures of controlled technology and data to foreign nationals in the United States. These deemed export provisions are of special interest to universities because they conduct research and teach courses that may involve controlled technology and they enroll and employ foreign nationals.
Most University activities are exempt from export control regulations because the information involved is publicly available or in the public domain, is considered fundamental research. These conditions generally correspond to blanket regulatory exemptions.
The University may, at the determination of OSP, accept research agreements that indicate that technical data generated under an agreement may be subject to export control regulations and that include the requirement that foreign nationals be identified to the sponsor prior to the foreign national's involvement in the project. If the sponsor exercises further restrictions on the publication of these data or on the access to the research by foreign nationals, the University may elect to decline or terminate the agreement if these restrictions are deemed unreasonable under the circumstances. Any project that indicates that its research results will be subject to export control or that requires sponsor prior approval in connection with the hiring of foreign nationals will be evaluated on a case-by-case basis through appropriate University process.
There are three primary sets of federal regulations that govern export controls:
- The Export Administration Regulations (EAR), administered by the Commerce Department, apply to the export of "dual-use" items and their technology (i.e., items that have both commercial and military applications, such as computers or pathogens).
- The International Traffic in Arms Regulations (ITAR), administered by the State Department, apply to munitions, or defense articles and defense services (i.e., those articles and services that are specifically designed for military applications or defense and do not have predominant civil applications).
- The Office of Foreign Assets Control (OFAC), overseen by the Treasury Department, governs trade sanctions, embargoes, and travel restrictions.
These regulations apply to exports in virtually all fields of science, technology and engineering. Generally, an "export" includes any: (1) actual shipment, or electronic or digital transmission, of covered items or technology; (2) release or disclosure, including verbally, of covered technology, software or equipment to a foreign national anywhere; or (3) use or application of covered technology for the benefit of a foreign entity or person anywhere.
Note: Other regulations apply to highly specialized exports, such as the Energy Department and Nuclear Regulatory Commission regulations on export of nuclear technology, Food and Drug Administration or Environmental Protection Agency export regulations, etc.
Since 1994, "export" means not only the shipment of items or transmission of technology outside the United States, but also transmissions to a non-U.S. citizen, non-permanent resident within the United States (called a "deemed export"). Thus, a disclosure to a foreign researcher or student on the University campus is a "deemed export".
Unless an exemption applies, EAR and ITAR may require that a license be obtained before covered equipment, materials, technology, software or information can be exported out of the U.S. or within it as a deemed export. The vast majority of exports associated with academic research – including deemed exports – do not require government export licenses because an exemption applies. In other situations, however, a license may be required. In a few situations, a license may be denied.
Most research at the University is exempt from EAR and ITAR under one of three key exclusions:
- The research involves "fundamental research" (so long as there are no restrictions on publication of the research or other restrictions on the dissemination of the information);
- The research involves information that is "publicly available" (EAR) or that is in the "public domain" (ITAR); or
- The research involves "educational information" (i.e., information released by instruction in catalog courses and associated teaching laboratories at academic institutions in the U.S., other than for certain encrypted software).
University-based research conducted by scientists, engineers, or students normally will be considered fundamental research.
The EAR and ITAR define "fundamental research" as basic and applied research in science and engineering conducted at a University located in the U.S. where the resulting information is ordinarily published and shared broadly within the scientific community (excluding certain encryption software). Thus, the fundamental research exemption applies to research conducted by foreign nationals at U.S. campuses, but does not apply to research conducted abroad.
University-based research is not considered "fundamental", and a license may be required if:
- specific access or dissemination controls on the resulting information have been accepted by the University or the researcher; or
- the University or researcher accepts "pass through" or "flow through" export control requirements from a sponsor or restrictions on publication of the information resulting from the research, other than (i) prepublication review to ensure that publication would not inadvertently divulge proprietary information furnished by the sponsor or (ii) prepublication review designed solely to ensure that publication would not compromise patent rights.
If the exemptions for publicly available/public domain information and fundamental research do not apply, and information or equipment is to be exported to foreign nationals in the U.S. or transferred abroad, then EAR or ITAR may apply, and a license may be required.
Under federal law (in particular the Export Administration Amendments Act and the Arms Export Control Act) either the Department of Commerce or the Department of State must authorize the export of certain goods and technology through the issuance of an export license. For the purpose of these Acts and their implementing regulations (EAR and ITAR) the export of technical data includes the communication by any means to foreign nationals or their agents, whether this communication takes place in the United States or elsewhere.
Section 779.3 of the US Department of Commerce Export Administration "General License GTDA; Technical Data Available to All Destinations" defines that information which may be distributed without special license from the Department of Commerce. The GTDA license does not authorize the initial transfer of information from an industry sponsor to university researchers where the parties have agreed that the sponsor may restrict from publication some or all of the information so provided. Scientific and technical information resulting from proprietary research will become publishable under the general license (GTDA)once restrictions on publication and disclosure have expired or have been removed.
A general license (designated a GTDA) authorizes the export to all destinations of such technical data as:
- Information arising during or resulting from fundamental research.
- Data released orally or visually at open conferences, lectures, trade shows, or other media open to the public.
- Publications that may be purchased without restrictions at a nominal cost or are readily available at public libraries.
- Patents available at any patent office.
- Dissemination of scientific or educational information not directly and significantly related to the design, production, or utilization in industrial processes.
- Instruction of scientific or educational data in academic institutions and academic laboratories, excluding information that involves research under contract related directly and significantly to design, production, or utilization in industrial processes.
- A GTDR general license applies to export of technical data other than that described above. These exports are under export restriction, with various export standards applied to designated country groups (e.g., Russia, China, Afghanistan, etc.). All exports of technical data in this restricted category require a validated license prior to export.
- Items subject to ITAR require a license from the Office of Munitions Control prior to export unless they are "in the public domain" or fall within one of the exemptions. The following exemption is particularly relevant to universities:
Disclosures of technical data in the U.S. by U.S. institutions of higher learning
to foreign persons who are their bona fide and full time regular employees. This exemption is available only if
(i) the employee's permanent abode throughout the period of employment is in the United States; (ii) the employee is not a national of a country to which exports are prohibited pursuant to sec. 126.1; and (iii) the institution informs the individual in writing that the technical data may not be transferred to other foreign persons without the prior written approval of the Office of Munitions Control;
Aside from exemptions and limited special consideration given to universities in the EAR and ITAR, universities are not exempt from compliance with these regulations. Penalties for noncompliance range from a reprimand to criminal penalties. Given the breadth of the definitions of technical data, it would be very difficult to formulate a university policy that explicitly restricts the pursuit of research requiring an export license without seriously damaging academic freedom. All projects must, therefore, be reviewed on a case by case basis to determine whether export regulations are an issue for that particular project.
The basic provisions regarding the involvement of foreign nationals in research activities that may be subject to export control is found in section 52.215-9530 of the Federal Acquisition Regulations (FAR) which states:
The parties acknowledge that technical data generated under this contract may be subject to export control, including disclosure to foreign nationals/representatives, whether such data is provided orally or in written form. The contractor agrees to obtain written approval from the Contracting Office (PCO) before assigning any foreign national/representative to perform work under the contract or before granting foreign nationals or their representatives access to data related to the following items/subject matter, whether such data is provided by the Government or generated under this contract.
The foreign national clause has two parts: (1) an "advisory warning" that the research may involve technical data which may be subject to export control regulations; and (2) the responsibility of the contractor to obtain permission from the contracting officer before assigning any foreign national to work on the project or to have access to certain data. This clause alerts the contractor to its duty to protect information subject to current export laws and regulations. It also gives the contracting officer the opportunity to object if the contractor constructively exports militarily critical technology by providing such data to foreign nationals. The federal government, not a particular contractor, determines generally what data are sensitive and require protection from unauthorized export. However, the exporter must make an individual determination of whether a particular export involves such data and thereby requires an export license.
The Export Administration Regulations (EAR) define technical data as:
- Information of any kind that can be used, or adapted for use, in the design, production, manufacture, utilization, or reconstruction of articles or materials. The data may take a tangible form, such as a model, prototype, blueprint, or an operating manual; or they
- May take an intangible form such as technical services.
Technical data, which are governed by the act, may not be "exported" without first securing a license from the Department of Commerce. The export of technical data includes: (a) an actual shipment or transmission of data out of the United States; (b) release of technical data in the United States with the knowledge or intent that the data will be shipped or transmitted to a foreign country; and (c) any release of technical data of U.S-origin in a foreign country. The release of technical data is further defined to include "oral exchanges of information in the United States or abroad." (15 C.F.R. sec. 379.1[b]).
These regulations make a distinction between fundamental research--defined as "basic and applied research in science and engineering, where the resulting information is ordinarily published and shared broadly within the scientific community" and proprietary research, the results of which ordinarily are restricted for proprietary reasons or specific national security reasons.
The definition of technical data in the International Traffic in Arms Regulations (ITAR) includes:
- Classified information relating to defense articles and defense services;
- Information covered by an invention secrecy order;
- Information which is directly related to the design, engineering, development, production, processing, manufacture, use, operation, overhaul, repair, maintenance, modification or reconstruction of defense articles.
ITAR deals with items with inherent capabilities which are "deemed to be inherently military in character." Items that have a dual use--that is, civilian as well as military applications (are governed under EAR. The definition explicitly excludes "information concerning general scientific, mathematical or engineering principles."