1) What is an export?
2) Why should I be concerned about an export?
3) What is a "Deemed" Export?
1) What are export controls?
2) What are sanctioned transitions?
3) How do I know if export controls apply to a grant/contract?
4) What do I do if I think export controls may apply to a grant/contract?
1) What is ITAR?
2) What is a defense article?
3) What is a defense service?
4) What is the U.S. Munitions List?
1) What is the purpose of Export Administration Regulation (EAR)?
2) What is an ECCN?
1) What is the training?
2) When is the training required?
3) I have a new restricted research project and I've already attended a training session. Do I need to attend another training session?
An export is an actual shipment or transmission of items, services, or technical data subject to either the EAR or the ITAR out of the United States, or release of technology, software, or technical data subject to either EAR or ITAR to a foreign national in the United States. Technology, software, or technical data is "released" for export through:
Why should I be concerned about an export?
The university campus is open to students and faculty from many different countries. Access to restricted or export controlled technology, commodities, defense articles and defense services by an unauthorized foreign person could result in severe criminal or civil penalties for the university and the university employee making the export. Prosecution of an export violation may result in fines of up to $1M and/or a prison sentence of up to 20 years.
Release of technology or source code subject to the EAR to a foreign national in the United States is "deemed" to be an export to the home country of the foreign national under the EAR. Technology is specific information necessary for the development, production, or use of a Commerce Department product controlled for export. “Use” is defined as operation, installation (including on-site installation), maintenance (checking), repair, overhaul and refurbishing.
Export controls are federal laws and regulations that restrict the flow of certain materials, devices and technical information related to such materials and devices outside the United States. Most important for our purposes are the International Traffic in Arms (ITAR– see 22 CFR §§ 120-130) and the Export Adminstration Regulations (EAR, see 15 CFR §§700-799).
What are sanctioned transactions?
Sanctions are prohibitions on transactions (e.g., financial exchanges, providing or receiving services of value) with designated countries. Entities or individuals with who but there are others to be aware of as well (see, for example, Office of Foreign Assets Control, 31 CFR §§500-599).
How do I know if export controls apply to a grant/contract?
Export controls apply if the topic of the research appears on either the U.S. Munitions List (ITAR) or the Commerce Control List (EAR). There are exclusions and exceptions to the application of the regulations. Contact us and we will help you make the determination if export controls apply to your project or research.
What do I do if I think export controls may apply to a grant/contract?
Do everything you can to make sure that the work research performed at Virginia Tech falls within the parameters of the following exclusions:
Fundamental Research Exclusion: Both ITAR and EAR include language that excludes the results of "fundamental research" from export requirements for export licenses or other government approvals.. The exclusion applies for basic and applied research in science and engineering performed by universities so long as that research is carried out openly and without restrictions on publication, or foreign national access and dissemination restrictions.
Educational Information: authorizes the disclosure, without a license, of educational information released by instruction in catalog courses and associated teaching laboratories of academic institutions and are general scientific, mathematical, or engineering principles commonly taught in universities.
Publicly Available Information Exclusion: applies if the information is in the public domain, i.e., if it is publicly available technology and software that is generally accessible to the public through unlimited and unrestricted distribution. Special rules apply to encryption software even if "open source" or publicly available software is being developed. See Encryption rules.
If you are unsure if your activity falls under one of these exclusions, contact OESRC and we will help you figure it out.
ITAR is an acronym that stands for International Traffic in Arms Regulations (22 CFR 120-130) that are administered by the U.S. Department of State through the Directorate of Defense Trade Controls (DDTC) under authority of the Arms Export Control Act (22 U.S.C. 2778). ITAR places strict controls on the export of "defense articles" and "defense services." Any defense article, service, or related technical data found to be on the USML requires an export license to be exported, i.e., given to a non-US-person. Some license exceptions are available under specific circumstances.
Defense articles include any item or technical data on the United States Munitions List (USML).
Defense services include the furnishing of assistance to foreign persons, whether or not in the United States, with respect to defense articles, and the furnishing of any technical data associated with a defense article.
What is the U.S. Munitions List?
The USML is a list of categories of items, defense articles and related technology designated as defense or military related. The USML is found in 22 CFR §121. Items on the USML are divided into 21 categories.
What is the purpose of the Export Administration Regulations (EAR)?
The primary focus of the EAR is to control the export of "dual-use" technologies; i.e., items that are used, or have the potential to be used, for military as well as non-military purposes if such export could adversely affect the national interests of the United States.
An export control classification number, or ECCN, comes from 15 CFR §774, Supplement 1, also known as the Department of Commerce's Commodity Classification List or CCL. An ECCN is a five-character alpha-numeric classification used in the CCL to identify items for export control purposes.
The “Got ITAR?” export and sanctions training session provides participants in restricted research projects with the knowledge to prevent inadvertent violations of U.S. export and trade sanctions regulations. The training session usually lasts about an hour and provides an overview of the regulatory agencies, export regulations and trade sanction programs, including the Export Administration Regulations (EAR), the International Traffic in Arms Regulations (ITAR), and the Office of Foreign Assets Control (OFAC) trade sanctions programs. In addition, the training will explore how these regulations may affect or restrict your research.
When is the training required?
Training for PIs, Co-PIs, GRAs, and other project personnel is required when the research project becomes restricted due to acceptance of publication, access and dissemination controls, or if a defense article is involved in the research. The research project may become subject to U.S. export regulations or trade sanctions depending on the contractual terms of the award or funding contract. Training is required for any participant who will have access to controlled source code, technology, or defense articles in the research.
I have a new restricted research project and I've already attended a training session. Do I need to attend another training session?
If you have attended a training session within the last two years, you do not need to attend another training session just because you have a new restricted research project. However, the regulations and laws change frequently. Because the penalties for export violations can be severe, training is recommended on an annual basis. Annual re-training is voluntary whereas bi-annual refresher training is required.
Foreign Nationals are persons who are not U.S. citizens, aliens who are “Lawful Permanent Residents” (Green Card), (8 USC § 1101(a)(20)) or other “Protected Individuals” under the Immigration and Naturalization Act (8 USC §1324b(a)(3)) designated an asylee, refugee, or a temporary resident under amnesty provisions. A foreign national also means any foreign corporation, business association, partnership or any other entity or group that is not incorporated to do business in the US. Under ITAR, the term “foreign person” is used, but has the same definition as “foreign national” herein.
Fundamental Research is defined as basic and applied research in science and engineering at accredited institutions of higher learning in the U.S. where the resulting information is ordinarily published and shared broadly in the scientific community, as distinguished from research the results of which are restricted for proprietary reasons or specific U.S. Government access and dissemination controls. The products of fundamental research are not subject to export license requirements or other government approval.
Publication or Dissemination Restrictions include acceptance in research and development of any prohibition or approval authority over publication or any other dissemination of research results, excepting, sponsor or collaborator may include provisions for review of results, with a short (30-90 day) review period to remove some company/collaborator business proprietary or pre-patentable information.
Publicly Available Information is technology and software that is published and generally accessible to the public through unlimited and unrestricted distribution and is either free or available at a price that does not exceed the cost of reproductions and distribution, is readily available at libraries, available through any patent office. , or released at an open conference, seminar, or trade show.
Restricted Parties are individuals and entities with whom the university and its employees may be prohibited by law, or require a license or other government approval, to export to or engage in controlled transactions. These include the Denied Persons List, Entity List, and Unverified List (Department of Commerce), the Debarred Parties Lists (Department of State), and the Specially Designated Nationals and Blocked Persons List (Department of Treasury).
Restricted Research is defined as university research, development, or testing subject to publication restrictions, (ii) access and disseminationcontrols, (iii) federally funded research with contract specific national security restrictions; (iv) accepting third party controlled items or information, or (v) providing access to, or defense services on, a defense article. Restricted research is subject to EAR and ITAR regulations, and a license or other government approval may be required for foreign national participation.
Sanctioned Countries are countries designated by OFAC as having limited or comprehensive trade sanctions imposed by the United States for reasons of anti-terrorism, non-proliferation, narcotics trafficking, or other reasons.