| The federal Export Administration Regulations ("EAR")
and International Traffic in Arms Regulations ("ITAR")
control the export of certain commodities, software, technical
data and certain other information to foreign countries. The
EAR and the ITAR can restrict the furnishing of information,
technical data and software to foreign persons, whether this
takes place abroad or in the United States. In the university
context, these regulations can prohibit foreign persons from
participating in research projects or having access to information
resulting from research under some circumstances unless an export
license has been obtained in advance. While most university
activities are not governed by the EAR or the ITAR, where these
rules do apply they must be followed. Punishment for violations
can be severe.
Washington State University, courtesy
of Purdue University and University of Washington, has developed
guidance in the form of answers to Frequently Asked Questions
to help researchers and others in the university community
to recognize situations where EAR and ITAR may apply to research
projects and results, but each individual is ultimately responsible
for understanding and complying with the EAR and the ITAR
when applicable to his or her activities. Considering the
following points will help individuals determine whether or
not the EAR or the ITAR may apply in particular situations
and to identify situations which may require further guidance.
are Export Control Regulations?
Export Control Regulations
(ECR) are federal laws 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 Regulations
(ITAR - see 22 CFR Parts 120-130) and the Export Administration
Regulations (EAR - see 15 CFR Parts 700-799), but there are
others to be aware of as well (see, for example, 31 CFR Parts
means 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 1) visual
inspection by foreign nationals of U.S. origin equipment and
facilities, 2) oral exchanges of information in the United
States or abroad, or 3) the application to situations abroad
of personal knowledge or technical experience acquired in
the United States.
Note : You can find
a searchable database of the CFR at Available
CFR Titles on GPO Access .
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.
3. How do
I know if Export Controls apply to a grant/contract?
apply if the topic of the research appears on either the ITAR
Munitions List or the EAR Commerce Control List.
ITAR places strict
controls on the export of “defense articles” and
“defense services.” Defense articles include any
item or technical data on the United States Munitions List
(USML), and 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.
The following categories
of defense articles and services are included on the ITAR
Munitions List (USML):
• Artillery projectors and armaments
• Launch vehicles, guided missiles, ballistic missiles,
rockets, torpedoes, bombs, and mines
• Explosives, propellants, incendiary agents, and their
• Vessels of war and special naval equipment
• Tanks and military vehicles
• Aircraft and associated equipment
• Military training equipment
• Protective personnel equipment
• Military electronics
• Fire control, range finder, optical and guidance and
• Auxiliary military equipment
• Toxicological agents and associated equipment
• Spacecraft systems and associated equipment
• Nuclear weapons, design, and testing equipment
• Classified articles, technical data and defense services
not otherwise enumerated
• Directed energy weapons
• Submersible vessels, oceanographic and associated
• Miscellaneous articles not listed above with substantial
military applicability and which were designed or modified
for military purposes.
See the following
the website for more details on the Munitions List:
The EAR Commerce
Control List is more complicated. Restricted technologies
are divided into ten broad categories, and the specific restrictions
depend on the specifics of the technology and where it's being
exported. Just so you know, here are the categories:
0 - Nuclear Materials,
Facilities and Equipment and Miscellaneous
1 - Materials, Chemicals, ``Microorganisms,'' and Toxins
2 - Materials Processing
3 - Electronics
4 - Computers
5 - Telecommunications and Information Security
6 - Lasers and Sensors
7 - Navigation and Avionics
8 - Marine
9 - Propulsion Systems, Space Vehicles and Related Equipment.
(See Part 774 and subsequent Categories)
Going back to the
original question, there is one crucial thing to remember:
You cannot depend
on the contract terms to know whether or not export controls
Whether or not the
agreement specifically invokes or refutes a particular export
control regulation is irrelevant to the question of whether
or not the export control applies. For example:
The contract says,
"This work may be subject to ITAR," but the work has nothing
to do with anything on the ITAR Munitions List. Since the
technology is not on the list, ITAR doesn't apply.
The contract says,
"This work is exempt from ITAR," but the work is researching
defensive measures against biological weapons. This technology
is on the ITAR Munitions List (Category XIV, Section C) so
do I do if I think Export Controls may apply to a grant/contract?
Do everything you
can to make sure that the work performed at WSU falls within
the parameters of the following exclusions:
- Fundamental Research Exclusion (FRE) - 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 access
to or dissemination of the research results.
- Public Domain Exclusion - applies if the information
is in the public domain, i.e., if it is published and generally
accessible to the public through unlimited and unrestricted
- Teaching Exclusion - authorizes the disclosure
of educational information released by instruction in catalog
courses or general scientific, mathematical, or engineering
principles commonly taught in universities without a license.
5. Is there
more information on the "Fundamental Research Exception"?
Both ITAR and EAR
include language that exempts "fundamental research" from
export control. Using ITAR as an example, while the regulations
restrict the flow of technical data they also stipulate (Sec
120.10) that the "definition [of technical data] does not
include information concerning general scientific, mathematical
or engineering principles commonly taught in schools, colleges
and universities or information in the public domain as defined
in Section 120.11.
then, defines information in the public domain to include
fundamental research, which "is defined to mean basic and
applied research in science and engineering where the resulting
information is ordinarily published and shared broadly within
the scientific community."
But, per Section
120.11, Subsections 7(i) and 7(ii), our work is no longer
considered "fundamental research" if a) we accept restrictions
on the publication or dissemination of scientific or technical
data, or b) the work is funded by the US Government and either
access or dissemination controls are applied.
So, as long as we
can freely present/publish, and, in the case of federally
funded work, there are no access restrictions, we're well
within the FRE.
6. So I
should focus on the publication clauses in the grant/contract?
Yes. If you suspect
a project may be subject to export control, the first, best
way to deal with this is to make sure there are absolutely
no restrictions of any kind on our ability to publish the
work. Review and comment are okay, limited-time delay for
patent protection is okay, but don't give the sponsor the
right to remove information of any sort from the publication.
And watch out for dissemination restrictions in other parts
of the agreement. The Office of Research Support and Operations
will assist in this review.
Remember: Any information
the sponsor can require be removed from a publication or otherwise
restrict from dissemination will be information that falls
outside the FRE.
But once you have
publication nailed down, don't forget the access issue. If
the project is funded by the Feds, and this includes flow-through
funding, access restrictions also kick us out of the FRE.
To remain safely within the FRE, you'll need to get any restrictions
on the kinds of personnel can work on the project (e.g., no
foreign nationals) out of the agreement.
What are some grant/contract clauses to look for that WSU
will not agree with?
- "The parties acknowledge that the subject of this
agreement may be subject to ITAR, EAR and/or other export
control regulations as mandated by Federal law. University
agrees to indemnify, defend and hold Sponsor harmless from
any and all suits, damages or other liabilities resulting
from the violation of such regulations.
- DFAR 252.204-7000, Disclosure of Information
"(a) The Contractor shall not release to anyone outside
the Contractor's organization any unclassified information..."
- FAR 52.227-17, Rights in Data - Special Works
(d) Release and use restrictions. Except as otherwise
specifically provided for in this contract, the Contractor
shall not use for purposes other than the performance of
this contract, nor shall the Contractor release, reproduce,
distribute, or publish any data first produced in the performance
of this contract, nor authorize others to do so, without
written permission of the Contracting Officer
8. But as
long as there are no publication restrictions and no personnel
restrictions I can be confident the FRE applies, right?
One more question.
Does the project require us to produce and/or deliver any
actual materials - i.e., equipment, devices or other embodiments
of the technology at hand?
Recall that the
FRE is extracted from the provisions that exempt from technical
data, information that is in the public domain and that information
in the public domain includes fundamental research. Accordingly,
the FRE applies only to data/information. Equipment and other
materials can't be exempted under the FRE.
So, for example,
while data relating to a system for defending against anthrax
could, depending on the publication and personnel terms, stay
within the bounds of the FRE, as soon as we actually build
an anti-anthrax device, we're back under the export controls.
Said another way
- the availability of an exemption for fundamental research
relating to defense articles and defense services controlled
under ITAR is highly limited. Therefore, any work being conducted
in the areas covered by the USML must be restricted so that
foreign nationals do not have access to the work being conducted
or to the resulting data, unless either:
• an export license has been obtained;
• governmental approval to proceed without an export
license has been obtained; or
• the Director, Office of Research Support and Operations
and the Vice President for Research have determined that the
ITAR does not impose restrictions under the facts of the particular
NOTE: If the
work is going to be subject to export control regulations,
and can't be covered under the FRE, there are a few things
that will likely need to happen.
First, WSU is probably
going to have to produce a Technology Control Plan that explains
how we're going to ensure that we don't violate any of the
export controls. This will necessarily involve WSU's Research
Compliance Officer, Assistant Attorney General, the Director
of ORSO, and the Vice President for Research.
Second, at the very
least, the PI's chair and dean are going to need to sign off
on the project and do so in a way that explicitly acknowledges
the export control issue. (The REX form alone is not enough.)
Third, it's possible
that the project will need to be reviewed and approved by
the Faculty Senate, the Vice President or someone else at the
University with the authority to put WSU's reputation and
finances on the line.
Details of these
responsibilities will be managed on a case-by-case basis.
is involved in obtaining an export license?
A request must be
submitted to either the Department of Commerce for EAR controlled
items or the Department of State for ITAR controlled items.
Export licenses can take up to 3-6 months for review before
a final determination is made. A request for an export license
would be initiated through the office of the Vice Provost
10. So I
have a project that might be subject to ITAR, but the publication
language is perfect, there are no restrictions on project
personnel, and we're not producing anything other than a report.
What do I do?
Treat the award
as you would any other. Since we're clearly under the FRE,
there's nothing to worry about vis-a-vis export control.
What's the Summary?
are federal law. Don't rely on the agreement terms to tell
you when the export regulations will apply. (The agreement
can actually be misleading.)
Never agree to offer
indemnification for violations of the export regulations.
If you think a project
could be subject to export regulations your first, best move
is to make sure the work stays within the Fundamental Research
Exception. This means:
- There are no restrictions (at all) on publications;
- If the money is coming from the feds, there are no restrictions
on the personnel we can use.
Watch out for flow-down
clauses that bring publication/personnel restrictions into
the agreement. Some are obvious, others may be less so.
Also remember that
the FRE won't apply to projects where we're going to be producing
and/or delivering an actual device, piece of equipment or
other embodiment of the technology. The FRE only applies to
do I call if I have further questions?
Office of Research Support and Operations: Dan Nordquist, Director (509) 335-9661
Michael Kluzik (509) 335-9553
CFR Section 121.1
The Code of Federal Regulations Title 22, Foreign Relations;
Chapter I, Department of State; Section 121.1, The U.S. Munitions
This database maintained by the Bureau of Industry and Security,
Department of Commerce, is a complete collection of regulations
relating to EAR. Supplement 1 of 15 CFR Section 774 is represented
by Categories 0-9.
of Industry and Security, Department of Commerce
The Bureau of Industry and Security is the ultimate authority
on all issues relating to EAR. This site should be considered
the most current source of EAR regulations and information.
Association of Universities
The American Association of Universities provides timely and
accurate analysis of federal policies impacting extramural
research at universities in the United States .
on Government Regulations
The Council on Government Regulations (COGR) provides further
analysis and interpretation on a wide spectrum of government
regulations. A copy of COGR's current export control booklet
is available here