Due to national security reasons and for the protection of trade, the federal government regulates the export of certain technologies. There are two kinds of restrictions: International Traffic in Arms Regulations (ITAR) and Export Administration Regulations (EAR). ITAR is enforced by the Department of State, while EAR is enforced by the Department of Commerce. 

            A common misconception concerning these regulations is that they do not apply to universities. However, universities are not exempt from these regulations, although certain situations may fall within exemptions. The purpose of this article is to provide an introduction to the nature of export control laws and their applicability in the university setting, with a particular emphasis on exemptions that may be available as a safe harbor from the burdens of regulatory requirements.

Items that appear in the regulations may not be exported without a license issue by the respective cognizant agency (Department of State or Department of Commerce). There are several reasons why the licensing requirement is needed:

  • The exported item may have actual or potential military applications.
  • The exported item may create economic protection issues.
  • The government may have concerns surrounding the destination country, organization, or individual who is receiving the export.
  • The government may have concerns about the declared or suspected use or user of the exported item.

            Both ITAR and EAR apply to a broad range of technology, including many types of work that faculty and staff at UAH conduct research on. Similarly, exported items have a broad range of forms. It may be tangible, such as equipment or software, or it may simply be research results, such as technical data. There is also a broad range of activities that can be defined as an “export”. The most obvious of these situations is the shipment of a listed item to a foreign country. However, an export may also occur through the release of technology to a foreign national in the United States – this is known as a “deemed export”. A release could take the form of a visual inspection by a foreign national or simply through verbal communications concerning a listed technology. Therefore, disclosure of research results to a foreign student in a UAH laboratory could be considered an export of those research results.

At the initial time of enactment of ITAR and EAR, the presidents of five major research universities recognized potential problems arising from the application of these rules in the decentralized and fluid nature of most campuses. The presidents of Stanford, Cal Tech, MIT, Cornell, and the University of California authored a letter to the Secretaries of Commerce, State, and Defense arguing that universities are neither structured nor staffed to police the flow of legitimate visitors to a given laboratory or the dissemination of information by their faculty at international conferences, or even in a campus classroom where foreign students happen to be present.

As a result of this lobbying effort, the official policy of the United States government, as reflected by the National Policy on the Transfer of Scientific, Technical and Engineering Information, recognized that sensitive information arising from fundamental research at colleges, universities, and laboratories should be protected by security classifications, not export control laws. This directive serves as the basis of what is now known as the “Fundamental Research Exemption” in export control regulations.

Fundamental Research includes basic or applied research in science and engineering at an accredited institution of higher education in the United States where the resulting information is ordinarily published or shared broadly in the scientific community; or where the information has been or is about to be published. University research is not considered fundamental research if:

  1. The university accepts any restrictions on publication of the research results, other than limited prepublication reviews by research sponsors to prevent inadvertent disclosure of the sponsor’s proprietary information or to ensure that publication will not compromise patent rights of the sponsor;
  2. Or the research is federally funded and specific controls over the dissemination of the research results have been contractually accepted by the university.

Like most research universities, UAH generally insists that the results of funded research be freely available for publication. Faculty need to publish to receive consideration for promotion and tenure and the mission of UAH as a public institution of higher education requires that research results be made available to promote the public interest. In addition, UAH typically does not accept restrictions in research contracts or grants on the dissemination of research results.

The regulations also do not apply to publicly available technology and software. Such items are considered to be publicly available when they are generally accessible to the interested public in any form, including the following:

  1. Published in periodicals, books, print, electronic or any other media available for general distribution to any member of the public at no cost or at a price that does not exceed the cost of reproduction and distribution;
  2. Availability at public libraries;
  3. Publication in issued patents or patent applications available at any patent office;
  4. Discussion or release at a conference, meeting, trade show, or other open gathering;
  5. And release by instruction in catalog courses and associated teaching laboratories at institutions of higher education.

            Although these exemptions apply to much of the research activity at a university, there still may be situations in which an export of certain technology may require a license. In such a case, a researcher can expect the licensing process to take no less than six months. Such a delay would usually result in a significant negative impact on research activity. Therefore, absent extraordinary circumstances, the better practice is to avoid situations in which an export license must be obtained. The scope to the exemptions to the regulations noted above makes this a viable alternative in most cases.

            Finally, it should be emphasized the above summary of the export control regulations is only a “tip of the iceberg” look at a very complex and ever-changing area of the law. Both ITAR and EAR have their own peculiarities and compliance with one set of regulations does not necessarily ensure compliance with the other set of regulations. Therefore, before making a decision on the applicability of the regulations or any of the exemptions thereto, the Office of Research Security or the Office of Sponsored Programs should be consulted.

To review the ITAR, please visit the following website: https://www.pmddtc.state.gov/?id=ddtc_public_portal_itar_landing.

To review the EAR, please visit the following website: https://www.bis.doc.gov/index.php/regulations/export-administration-regulations-ear.