I. Introduction
VCU’s Faculty Handbook states:
“It is the policy of Virginia Commonwealth University to support and foster freedom of inquiry, discourse, teaching, research and publication by any member of the academic staff in his or her sphere of scholarly interest. It is also the policy of the University to protect the academic community against attempts, from within or without the University, that would restrict the exercise of these freedoms. …
Subject to the adequate performance of their assigned duties, members of the academic community are entitled to freedom in the selection of topics and problems for research and in the publication of any results and conclusions.”
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 VCU. 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. Current federal regulations have effects adverse not only to research at VCU but to U.S. universities generally. 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.
Relevant established VCU policies on sponsored research agreements include not accepting restriction on publication, not limiting the use of foreign nationals, and not accepting classified materials or engaging in classified research.
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 Programs (OSP). If you have questions about how the export regulations apply to specific research, please feel free to contact Susan Robb, Assistant Vice President for Research Administration at 828-6772 or sarobb@vcu.edu.
II. Background
Regulations promulgated and enforced by the Department of Commerce, Export Administration Regulations (EAR), and the Department of State, International Trafficking in Arms Regulations (ITAR) prohibit the unlicensed export of specific technologies for reasons of national security or protection of trade. If VCU research involves such specified technologies, the EAR and/or ITAR may require the University 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.
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 consequences of violating these regulations can be quite severe, ranging from loss of research awards, to monetary penalties, to jail time.
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, VCU, through OSP, Vice President for Research, 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 OSP 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 OSP 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.
The Office of Sponsored Programs 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.
III. 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.
