Export Control

Overview

Current export law controls both hardware and information concerning a wide range of designated "Defense Articles" in a way that may have an impact on research at VSU. 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. 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 are subject to export controls. Inspectors General of several federal agencies have specifically identified that "deemed exports" related to use of equipment is not covered under the fundamental research exemption.

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, whether or not the research is administered by the Office of Sponsored Research and Programs (OSRP). If you have questions about how the export regulations apply to specific research, please feel free to contact Charlene Wyche, Director, OSRP at cwyche@vsu.edu or 804-524-1040.

Background

Regulations developed and enforced by the federal government prohibit the unlicensed export of specific technologies for reasons of national security or protection of trade. If VSU research involves such specified technologies, the University may have to obtain prior approval from State or Commerce before allowing foreign nationals to participate in the research or 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 awards, to monetary penalties, to jail time.

Export control regulations have the potential to harm the quality of university research, undermine publication rights, and prohibit international collaboration if the dissemination of institutional research is not placed in the public domain and does not qualify for the fundamental research exclusion (see below). The Council on Government Relations (COGR), the Association of American Universities (AAU), and other nationally recognized research universities are working to exclude all fundamental university research from export regulation. Until such time as those efforts are successful, VSU, through OSPR, the Vice President for Research and Innovation, and principal investigators must conduct a thorough review of research projects and contract provisions and determine whether and, if so how, a particular project is impacted by those regulations.

Principal investigators (PIs) shall have the following responsibilities:

• to review planned research and cooperate with OSRP to determine whether their research is impacted by the controls or requirements contained within the export regulations, and
• to re-evaluate project status in cooperation with OSRP 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.

OSRP and other appropriate offices will assist PIs in assessing the application of such regulations, but primary compliance responsibility must rest with the principal investigator of the research.

Laws & Regulations

There are a many federal laws and regulations that control the provision of certain services and the export of controlled items (e.g. material samples, equipment, software/source code and prototypes) and information. Normal university activities can constitute regulated services and items and information used in or produced by university activities can be subject to export controls. OSRP is responsible for providing support for University activities subject to the three primary export control regulations listed below (ITAR, EAR, FACR).

International Traffic in Arms Regulations (ITAR)

• Citation: 22 CFR 120-130
• Agency: Directorate of Defense Trade Controls (DDTC), US Department of State
• Statutory Authority: Arms Export Control Act (AECA)
• Scope: Primarily military technology, technical data and services.
• Examples of Items Controlled: satellite technology, some unmanned aerial vehicles, global positioning systems, chemicals, night vision technology, navigation systems, sonar and radar systems, military electronics and software.

Export Administration Regulations (EAR)

• Citation:15 CFR chapter VII, subchapter C
• Agency: Bureau of Industry & Security (BIS), US Department of Commerce
• Statutory Authority: Export Administration Act (EAA) and the International Emergency Economic Powers Act (IEEPA)
• Regulations: Export Administration Regulations (EAR)
• Scope: Items in US commerce that are not controlled by another agency. Controls are predominantly related to dual-use (ones with military and commercial utility) technology listed on the Commerce Control List.
• Examples of Items Controlled: lasers, infectious agents, computers, encryption technology, sensors, navigation and avionics, propulsion systems, toxins, chemicals, certain materials for the manufacture of controlled goods, and telecommunications equipment.

Embargoes and Trade Sanctions or Foreign Assets Control Regulations (FACR)

• Citation: 31 CFR 500-598
• Agency: Office of Foreign Assets Control, US Department of the Treasury
• Statutory Authority: Presidential National Emergency Powers and various legislation impacting international trade
• Regulations: International Trade Regulations
• Scope: Varies among the different sanction programs. Sanctions may be comprehensive or limited.
• Examples of Controls
  
  • Country-Based: Iran, Cuba, Sudan, Syria, and North Korea.
  • List-Based: Counter Terrorism, Non-proliferation and Counter Narcotics Trafficking.

Other Federal Agencies with Export Control Authority

Although DDTC, BIS and OFAC are the primary agencies with export control authority for technology, associated non-public information, and services of value there are others agencies that have authority over other types of goods and materials. The agencies identified below are examples, not a comprehensive list:

Office of Diversion Control, Drug Enforcement Agency, Department of Justice

• Statutory Authority: Controlled Substances Act (21 USC)
• Regulations: Controlled Substances Regulations (21 CFR Part 1300-1399)
• Scope: Drugs with the potential for abuse (schedules I-V) and regulated chemicals (List I and II) exceeding allowable limits
• Examples of Items Controlled: drugs such ketamine, pentobarbital, amphetamines, and opioids; as well as regulated chemicals such as acetic anhydride, ephedrine, toluene and ethyl ether.
• Diversion Control Import/Export Quick Reference Guide and website

Food and Drug Administration

• Statutory Authority: Federal Food and Drugs Act (Public Law 59-384, Section 2), Federal Food, Drug and Cosmetic Act of 1938 (Public Law 75-717, Section 801(d)), Drug Export Amendments Act of 1986 (Public Law 99-660), and the FDA Export Reform and Enhancement Act of 1996 (Public Law 104-134, and amended by Public Law 104-180)
• Scope: Commercial and investigational drugs, biological products, and certain medical devices
• FDA Import/Export Guidance website

US Fish & Wildlife Service, Department of the Interior

• Statutory Authority: Various, including the Endangered Species Act (ESA), Lacey Act, Convention on Internation Trade in Endagered Species of Wild Fauna and Flora (CITES), Migratory Bird Treaty Act (MBTA), and Marine Mammal Protection Act (MMPA).
• Regulations: Fish and Wildlife Regulations (50 CFR Part 17, Sec. 21, 22, 31 & 32; 50 CFR Part 23)
• Scope: Endangered plants and animals (live organisms and parts or samples)
• Examples of Items Controlled: broad-nosed bat, Cooper's hawk, American alligator, beluga whale, snow drops, hoodias, and many species of cacti
• USFWS Import/Export Permit website

Nuclear Regulatory Commission

• Statutory Authority: Energy Reorganization Act of 1974; Atomic Energy Act 1954, as amended; and the Nuclear Non-Proliferation Act
• Regulations: NRC Regulations (10 CFR 110.8 and 110.9)
• Scope: nuclear materials and equipment
• Examples of Items Controlled: natural, enriched and depleted uranium, thorium, plutonium, uranium-233, technology associated with the design, maintenance, operation or use of nuclear plants, enrichment facilitites, deuterium processing plants, nuclear grade graphite, and nuclear waste
• NRC Export-Import website

Department of Energy

• Statutory Authority: Atomic Energy Act 1954, as amended; Energy Reorganization Act of 1974; and the Department of Energy Organization Act of 1977
• Regulations: 10 CFR 810
• Scope: nuclear technology, technical data for nuclear weapons and special nuclear materials.
• Examples of Items Controlled: activities involving nuclear reactors and other nuclear fuel cycle facilities for specific activites; production of heavy water, zirconium, nuclear-grade graphite or reactor-grade beryllium; production of reactor-grade uranium from yellowcake; and certain uranium milling activities.
• Examples of Activities Requiring Specific Authorization: providing sensitive nuclear technology for an activity in any foreign country; engaging in or providing assistance or training in specified activities to a foreign contry, for example, designing, constructing, fabricating, operating or maintaining production reactors, accelerator-driven subcritical assembly systems; components especially designed, modified or adapted for use in for production reactors or accelerator-driven subcritical assembly systems; major critical components for use in such reactors or production-scale facilities; or research reactors, test reactors or subcritical assemblies capable of continuous operation above five megawatts thermal.
• National Nuclear Security Administration; Office of Nuclear Energy website

Animal and Plant Health Inspection Service, Department of Agriculture

• Statutory Authority: Plant Protection Act (P.L. 106-224; 7 USC Ch. 104), Animal Health Protection Act (P.L. 107-171, Title X, Sec. 10401; 7 USC, Ch. 109)
• Regulations: USDA Regulations (7 CFR, Subtitle B, Part 353)
• Scope: Import and export of live animals, animal products, live plants, plant products and soils.
• Examples of Items Controlled: agricultural animals and plants, plant pests, soils from quarrantined areas, blood or serum samples, milk, meat and plant food items
• APHIS Import/Export website

This is not a comprehensive list of all US export control regulations; additional laws and regulations exist, but typically university activities will not involve data, goods or services under their jurisdiction. Although OSPR has no formal responsibility associated with regulations other than the EAR, ITAR and trade sanction regulations, we will try to put researcher in touch with the office or person at UVa or the cognizant agency that will be best able to assist.

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: (2) 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 wherever located; 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 (see below) 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 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 774, Supp. 1. The complete text of the EAR and CCL are available online at http://www.gpoaccess.gov/cfr/index.html. Printed versions of the EAR and CCL are available for review at OSP.

C. The International Traffic in Arms Regulations (ITAR), 22 CFR §§ 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. Complete, on-line versions of ITAR and MCL are available online at http://www.access.gpo.gov/nara/cfr (Government Printing Office site) and at http://www.fas.org/spp/starwars/offdocs/itar (Website for the Federation of American Scientists). Print versions of ITAR and MCL are available for review at OSP.

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. University research will not be deemed to qualify as Fundamental Research if: (1) the University 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 (2) 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: (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, generally accessible to the public, in the United States; (7) 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 (8) through fundamental research.