General Export Control Information
Universities are subject to the same export controls as other US companies, organizations and individuals so it is critical that University personnel know what an export is and when a license may be required. The regulations also exempt or exclude some activities from the scope of control. The good news is that most university activities fall into one of the exemption or exclusion categories. The bad news is that despite these generally useful exemptions or exclusions, some university activities remain subject to export control requirements and may require restrictions on access or licensure.
These are simplified definitions intended only for use in the following generalized discussion of export control requirements. They are not specific to any export control regulation and should not be used when making jurisdictional determinations or licensing assessments.
Export - the physical shipment or transmission of items or information out of the US; or the release of certain controlled items or controlled information to a foreign national in the US.
US Person - an individual who is a US citizen, permanent resident, or been formally granted asylum in the US; any entity legally organized to do business in teh US; and US federal, state, and local government agencies.
Foreign Person - anyone who is not a US person.
Controlled Items - goods or commodities including software that is of US origin, located in the US, or is otherwise in US commerce. The ITAR uses the term "defense article" while the EAR uses "commodity", "good", or "item".
Controlled Information - proprietary information related to development, production or use of controlled items. The ITAR uses the term "technical data" while the EAR uses the term "technology".
Licensable Services - any service, paid or unpaid, that would require a license when provided to a foreign person in the US or abroad. Services are predominantly regulated under the ITAR ("defense services") or trade sanction regulations.
Fundamental Research - basic and applied research in science and engineering that is ordinarily published and shared broadly within the scientific community. Research will not be considered fundamental research if there are restrictions on the publication of scientific and technical information resulting from the project or if US government access and dissemination controls are applicable to the resulting information. The ITAR further limits fundamental research to research conducted at institutions of higher learning in the US; this restriction is not present in the EAR. The trade sanction regulations do not specifically address fundamental research.
When considering the applicability of export controls to your activities be sure to use the terms and definitions contained within the specific regulation under review. While definitions may be similar they often contain subtle differences in wording or are interpreted differently by the respective cognizant government agency.
Exempt or Excluded Activities
The following are examples of types of information that are specifically exempted or excluded from the scope of the US export control regulations (EAR, ITAR and trade sanction regulations). Note: If the information is provided about a ITAR controlled item or for a military purpose it may be a licenseable defense service (discussed in Controlled Activities, below) even if it would otherwise qualify for one or more of the exclusions listed below.
Although each export control regulations uses different terminology (publicly available, public domain, or information and informational materials) they all generally exclude the free or at cost provision of information that has been published or has been otherwise made available to the interested public from export control. Public information includes, but is not limited to published books, magazines, newspapers and scholarly journals.
Fundamental Research Results
Information resulting from fundamental research is not subject to export control under the EAR or ITAR. However, the export of fundamental research results to certain countries (but not typically to nationals of that country in the US) may be prohibited by US trade sanction regulations.
Information that is released by instruction in catalog courses and associated teaching laboratories of academic institutions is not subject to export control requirements. The ITAR specifically limits this exclusion to information concerning general scientific, mathematical or engineering principles commonly taught in schools, colleges and universities or information in the public domain.
The following are examples of activities that may be subject to control under the US export control regulations (EAR, ITAR and trade sanction regulations):
Use, Transfer or Development of Controlled Items and Information
An export license or other authorization will be required for any use, transfer or development of ITAR controlled items or information by foreign nationals. An exception to the licensing requirement may be available in very limited circumstances for some full-time bona fide UVA employees conducting work in the US and for students from specific countries conducting space-related research. It is also important to realize that providing training or instruction, even within a course or fundamental research project, related to an ITAR controlled item would also be a licensable service.
Simple operation of EAR controlled items by foreign nationals in the US does not require a license. However, access to controlled information may require a license depending on the reasons for control, country of nationality or citizenship, and the availability of an applicable license exception.
Sponsor or Third Party Provided
It is critical that incoming items and all proprietary technical information be assessed to determine whether or not they are export controlled. Often the provider will be the best source of information regarding the export control status, but ultimately it is the University's responsibility to know what we are accepting and to protect it appropriately.
Although information (i.e. data) generated from fundamental research activities is excluded from the scope of both the ITAR and the EAR, any physical items created or developed (e.g. analysis software, a sensor, or a prototype) are subject to export control. This control exists regardless of whether or not the you publish the source code, schematics or manufacturing specifications.
The equipment and materials purchased by the University to support research and educational activities may be subject to export control requirements. Generally speaking a license is not required for foreign nationals to have access to and operate EAR controlled items on Grounds. However, access to or use of controlled information, source or object code by a foreign national in the US may require a license or other authorization.
This is a general term for projects or activities that are not exempt or excluded from the export control regulations, usually by the terms and conditions of the grant, contract or other agreement funding the project. Certain US government sponsors, because of the types of technology they are interested in, are more likely to issue awards for restricted projects. Often the funding announcement (e.g. RFP or BAA) for programs funding restricted projects clearly state that they do not expect to fund fundamental research, but sometimes the decision to apply restrictions is made based on the proposal and the technology readiness level as determined by the sponsor.
- Department of Defense
- National Aeronautics and Space Administration
- Department of Energy
- Department of Homeland Security
While awards funded by these agencies are more likely to contain restrictions, these sponsors all also fund fundamental research. Restrictions may also be found in awards from other government, corporate and nonprofit sponsors. Note: University principal investigators (PIs) are free to decide not to accept restricted projects; however, if a PI wishes to accept a restricted project he/she must obtain the concurrence of their department chair, dean's office, and the office of the Vice President for Research.
The following are the most common terms and conditions found in research agreements that prohibit the University from treating them as fundamental research.
Explicit Notification of Export Control
This is when the sponsor or a third party specifies that export controlled technology, software or technical data will be generated by the research. However, if the export controls only apply to background information or items used to conduct the research and not to the research results the project itself may still be fundamental research. In these cases a plan will have to be developed to prevent export control violations associated with access to the controlled information or item(s). Note: If the terms only require that we follow applicable US export control laws and regulations and no controlled technology, software or technical data will be used or generated it will NOT be considered a research restriction. Likewise
If the Univiersity or its researchers accepts terms (in the agreement or as a "side deal") that prohibit the researchers from publishing or otherwise publicly disseminating the research results without the prior approval of the sponsor or other entity we cannot claim the research is fundamental. In this case export controls may apply depending on the specifics of the research. However, once permission for unlimited public release of the results has been granted it can be considered fundamental research results or public domain.
Sponsor restrictions on who may participate based on citizenship or country of origin are essentially limitations on dissemination and prevent the University from claiming this is fundamental research. It does not matter how many countries are prohibited. Note: Sponsor restrictions that require that funds only be used to support US students but do not restrict who can have access to the information or participate on the project do not preclude the project from being fundamental research.
Deliverables to or for a Foreign Sponsor
When foreign sponsors ask for deliverables, other than scientific/scholarly publications and presentations, an export license may be required if the work will generate controlled items or information or if it would be a licensable service. Whenever possible the University needs to determine licensing requirements prior to accepting any award or agreement from a foreign sponsor and final delivery must be contingent upon compliance with all applicable US export controls.
Whenever University personnel travel outside the US they are exporting, usually temporarily, the items and information they take with them. A license or other authorization is required for all exports, temporary or permanent, of ITAR controlled items or information. In contrast, EAR controlled items and information may or may not require a license depending on the following:
- the reason(s) the item or information is controlled;
- where the item or information will be taken;
- what the item of information will be used for; and
- who will have access to or be using the item or information.
It is critical that an assessment be performed before any export, including those related to international travel, occurs to ensure compliance with all applicable export control requirements.
Licenses & Other Authorizations
The University of Virginia is registered with the Department of State, Directorate of Defense Trade Controls (DDTC), and the Department of Commerce, Bureau of Industry and Security (BIS), and can submit jurisdiction, classification and license requests if needed. All submissions to DDTC and BIS must be made electronically via their respective licensing systems, D-Trade and SNAP-R; the Office of Export Controls is the only office currently authorized to submit requests thorough these electronic systems. The Department of Treasury, Office of Foreign Assets Control (OFAC), only accepts hard copy license requests at this time.
Applications to DDTC, BIS and OFAC typically require the inclusion of significant technical information, so it is imperative that the faculty member or other technical expert assist the Office of Export Controls with their preparation. Processing times vary by agency and type of application, but generally take a few weeks for BIS, weeks to a few months for DDTC, and up to a year or more for OFAC. Licenses are usually approved with conditions or provisos, so it is important to review the final license carefully to ensure that all parties to the export can comply with the requirements.