Export Control Regulation – (ITAR & EAR Brief)

Background

Federal export control laws prohibit unlicensed export of information related to certain products and technologies for reasons of national security and protection of trade to foreign countries. These laws can restrict the furnishing of information, technical data and software to foreign persons regardless of whether the transfer takes place in the United States or abroad and they apply regardless of specific citation to the regulations in an award document.

The Department of State regulates and restricts the transfer and export of technologies relating to military applications listed on the Munitions Controls List (MCL)under the International Traffic in Arms Regulations (ITAR). The Department of Commerce regulates and restricts the transfer and export of technologies relating to civilian applications listed on the Commerce Control List (CCL) under the Export Administration Regulations (EAR).

Export, in this context, includes transfer of regulated technologies and or technical data to foreign nationals whether in the United States or in another country. If research involves protected technologies, the ITAR and/or EAR may require ASU to obtain a license from the responsible federal agency before allowing foreign nationals to participate in the research or to receive any research related information – orally. electronically, or in writing. In addition to licensing requirements for sharing information with foreign nationals, the export laws specify countries to which exports are prohibited. (See the ITAR restricted and embargoed countries list and definitions in the references below.) Please Note : Regardless of export control restrictions, Federal Law prohibits foreign nationals from embargoed countries from participation in federally funded activities.

The federal export laws cover a broad spectrum of science and engineering, however, they allow an exclusion for fundamental research. Fundamental research is defined as basic or applied research in science and/or engineering at an accredited institution of higher education within the United States when the resulting information is expected to become part of the public domain, i.e. when there are no restrictions on publication beyond those intended to protect pre-existing proprietary information or intellectual property rights. Research projects are not eligible for the fundamental research exemption if the federal government designates the research results as classified, administratively controlled, or otherwise restricted or sensitive.

These laws do raise legitimate concerns regarding academic and scholarly freedom, but it is important to keep in mind that the purpose of these and many other laws enacted since September 11, 2001, is to improve national security and counteract terrorism. Because the consequences of breaking the law can be severe to both the researcher and the University it is important to understand the circumstances under which the fundamental research exclusion applies.


STANDARD LANGUAGE

ITAR and EAR are laws that are in force whether or not they are specifically cited in a research agreement. These laws are not included in the Federal Acquisition Regulations or in any agency-specific acquisition regulations, but they may be cited in federal or sub-federal grants or contracts as specific requirements.

If Export Laws are cited in the award document the preferred action is deletion of the reference or formal acknowledgment by the sponsor that the project is afforded the fundamental research exclusion for university based basic and applied research.

When further negotiation is required the issue should be referred to the Contract Officer for assistance, and the PI must be fully informed about the ramifications of the clause and must provide written assurances that the requirements of the clause will be met.

If the terms of an agreement are modified to include export restrictions after acceptance of the award, then the sponsor should be required to identify any specific data or information subject to the Export Laws. The Contract Officer should be involved in this negotiation and the PI should confirm acceptance of the new terms in writing and explain how the project will comply with the requirements of the Export Laws.

Rationale

The federal government’s requirement to restrict or prohibit access to technical data by foreign nationals or corporations potentially exposes ASU to a large number of legal and financial problems because the University is a public institution with many foreign students and business partners. Questions on the process for compliance with ITAR or EAR should be referred to the Research Compliance Office (RCO) Manager at research.compliance@asu.edu or 965-6788.

References

U.S. Department of Commerce Export Administration Regulations (EAR) 15 CRF 730 – 774

Commerce Control List (CCL) 15 CFR 730- 774 Supplement 1

U.S. Department of State International Traffic in Arms Regulations (ITAR) 22 CFR 120- 130)

Munitions Control List (MCL) 22 CFR121

Definitions

Export – means the shipment or transport of goods or items (including electronic or digital equipment) or the release of or sharing of restricted technology or data – orally, electronically, or in writing - with foreign nationals.

Foreign National – means person residing in the U.S. who is not a lawful permanent resident. This term also includes any foreign corporation, business association, partnership, trust, society or any other group not incorporated or organized to do business in the United States, and any international organization, foreign government or diplomatic entity.

Fundamental Research – is 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. The exemption for fundamental research is codified at 15 C.F.R. § 734.8.

Public Domain means information that is published and generally accessible or available to the public: (1) through sales at newsstands and bookstores; (2) through subscriptions which are available without restriction to any individual who desires to obtain or purchase the published information; (3) through second class mailing privileges granted by the U.S. Government; (4) at libraries open to the public or from which the public can obtain documents; (5) through patents available at any patent office; (6) through unlimited distribution at a conference, meeting, seminar, trade show or exhibition; (7) through publication in any form or media after approval by the cognizant U.S. government department or agency; and (8) through fundamental research.

Restricted or Embargoed Countries – ITAR regulations at Section 126.1 specifies countries to which exports and sales are prohibited. Currently, it is the policy of the United States to deny licenses, other approvals, exports and imports of defense articles and defense services to: Afghanistan, Belarus, Cuba, Iran, Iraq, Libya, North Korea, and Vietnam; countries which the U.S. maintains an arms embargo (e.g. Burma, China, Haiti, Liberia, Rwanda, Somalia, Sudan and Democratic Republic of the Congo (formerly Zaire); countries determined by the Secretary of State to have repeatedly provided support for acts of internal terrorism (Cuba, Iran, Iraq, Libya, North Korea, Sudan and Syria). Please use the ITAR Embargo Reference Chart for specific reference to Defense Trade Controls.  Additionally, for all types of imports and exports to sanctioned countries listed by the Office of Foreign Assets Control an export license is required and should be checked frequently for updates at http://www.treas.gov/offices/enforcement/ofac/programs


ASU STANDARD BUSINESS PRACTICES RELATING TO EXPORT CONTROL REGULATIONS (ITAR & EAR)

Principal Investigators have the following responsibilities:

If your proposal guideline or award document contains export restrictions you need to have a good basic understanding of the export related regulations and the nature of the research prior to changing the scope of work or adding new staff to an ongoing project to determine if these changes would alter the initial classification of the research project. Confirm the status of the research project far enough in advance to obtain university and sponsor authorizations and approvals, if required.

Before hiring a foreign national to work on any sponsored project, ensure that no restricted technologies are part of the project.

RCO Assistance:

Guidance for ORSPA

1. If the award is a grant or cooperative agreement and the work is for fundamental research (basic or applied) with no restrictions on disclosure or distribution or research results, then proceed without further review.

2. If the award is a contract that will employ foreign nationals and/or involve restricted technologies, then confirm with the Sponsor that an export license is not required, prior to signing the award document.

3. If the award document is a grant or cooperative agreement and references the export regulations, then cite the exclusion for fundamental research in the cover letter accompanying the fully executed agreement; if the award document is a contract and references the export regulations, then confirm with the Sponsor that an export license is not required, prior to signing the award document.

4. If an award is approved for acceptance with publication restrictions, then ensure that an export license is not required prior to signing the agreement.

5. Before hiring a foreign national to work on any sponsored project, ensure that no restricted technologies are part of the project.

Principal Investigators must acknowledge their responsibilities when the federal export laws apply. In particular, they must complete Part II of the RCO Record of Export Control Review and sign the certification whenever a restricted technology is the subject of their research.

If no protected technologies are involved or the fundamental exclusion for basic and applied research is in effect, the PI must monitor the project and report to RCO and the sponsor any changes in personnel or the scope of work that might affect the status of the award.

1. Principal Investigator Acknowledgement

I understand that Arizona State University has entered into Agreement __________ with the understanding that my project meets the requirements for an exemption from the federal export laws (ITAR and/or EAR).  Specifically, ASU is an educational institution conducting fundamental research with no restrictions on the disclosure or distribution of research results.  Should there be a change in the status of my project that might affect ASU’s eligibility for the exemption; I agree to immediately notify the OVPREA Research Compliance Office.