Issues with Research Projects
As ORSP reviews every research project, it examines the proposal and accompanying documentation for any potential export control issue that must be resolved before the researcher commences the research project.
Research with Foreign Sponsors
University personnel responsible for negotiating contracts with foreign sponsors or researchers participating in such research should be aware of the requirements of the Foreign Corrupt Practices Act as well as boycott issues.
Research Discussions Off-Campus
In general, the majority of exchanges between researchers off-campus can go forward without the requirement of an export license where the sole purpose of the meeting is to present research findings that have been published provided they do not concern detailed information regarding defense articles that are found on the Munitions List. International conferences and/or presentations of research such as in meetings between researchers and industry which are limited to published or publishable research are covered by the "publicly available/public domain" exclusions provided by the regulations, and no export license is needed when these discussions take place during participation in these conferences. However, where there is the possibility of exchange with a foreign national or foreign entity of technical information not yet published regarding a defense article found on the Munitions List, the researchers should be aware of the following:
The International Traffic in Arms (ITAR) regulations only permit unlicensed export of:
- Feneral systems description of defense articles
- Basic marketing information on function or purpose
- Information concerning general scientific, mathematic or engineering principles commonly taught in schools, college and universities
- Information in the public domain (i.e., available through sale at newsstands and bookstores, through subscriptions which are available without restriction to any individual who desires to obtain or purchase the published information, at libraries open to the public or from which the public can obtain documents, through patents available at any patent office, through unlimited distribution at a conference meeting seminar, trade show, or exhibition generally accessible to the public in the U.S.; and through fundamental 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.)
Technical information which falls within the meaning of the first categories above and is NOT ITAR-controlled includes top-level drawings, top-level narrative descriptions or summaries of performance requirements, key subsystems, design capabilities or manufacturing facilities. Likewise, top-level description of reliability analyses, top-level block diagrams, top-level description of operational modes, top-level equipment layout drawings and top-level predictions of power usage or consumption do not require a license.
However, technical information which IS likely to be ITAR-controlled, and thus require an export license before sharing with a foreign national or foreign entity, includes detailed information about "how-to" design, manufacture and test; design, manufacture, test methodology or philosophy; technical trade-off methodology or detailed alternatives, detailed test data or test procedures, detailed description of integration and test plans, or detailed schematics diagrams or interface information, as well as manufacturing or assembly processes or analytical methods of procedures.
Communications to Foreign Entities Off-Campus
Researchers should also be aware that exports of all other technical information about a defense article can take place either through exchange of documents, through oral exchanges in person or by telephone, or by electronic exchanges including fax transmission or e-mail.
Furthermore, the ITAR prohibits the furnishing of assistance, including training, related to a defense article to foreign persons.
Situations that may raise an export concern:
- Emailing a colleague in a foreign country unpublished technical data about a controlled item.
- Sending a draft of a publication to a foreign colleague to review that contains unpublished controlled technical data.
- Providing information to a foreign colleague linking two or more publications regarding controlled equipment or technology. A "defense service" may be provided by the simple act of linking the two publications.
Deliverables to Foreign Sponsors or Transfer of Export-Controlled Material or Information Outside the U.S.
Where equipment developed in the course of research (i.e., a prototype) or related technical data is to be sent off-campus to a foreign sponsor, it must be reviewed to determine whether an export license is necessary.
As a license will generally require a minimum of 6-8 weeks to acquire, a researcher should also consider whether purchasing the controlled equipment abroad is possible or alternatively whether the equipment can be shipped directly from the company to the foreign research site, as it is the party exporting the equipment who is required to secure the export license. However, even if the equipment is exported by another party, the researcher should also be careful not to export "technical assistance" or "defense services" in the form of controlled information, such as technical specifications or instructions on how to use the equipment. Under certain circumstances, providing this information may also require a license and ORSP should be contacted before doing so to evaluate whether a license is required.
A researcher receives controlled materials from a foreign sponsor and then is required to return the controlled materials, either in their original form or as modified during research. No license is required to receive the materials as it is an import, not an export. However, an export license may be required, and this must be evaluated by ORSP before the materials are returned.
Receipt of Export-Controlled Information
As more funding sources become aware of the potential for export control issues to arise in a research project, they may attempt to impose export control restrictions on the research they are funding, which may be unacceptable to the University of Denver if such restrictions destroy the fundamental research exclusion.
For example, if a research proposal indicates that it will be necessary for export-controlled information to be received by the researcher from the sponsor or a third-party in order to perform the research, this may create restrictions on publication and/or the use of foreign nationals in the research. In order to preserve the fundamental research exclusion, it is preferable that no export-controlled information be necessary for a research project to go forward, but if it is, the University of Denver requires that the party providing the information be responsible for identifying the information as export-controlled and implementing any necessary controls, often in the form of a non-disclosure agreement that will address the export concerns.
If the researcher or administrator has reason to believe that information to be received is export-controlled information, it is imperative that the researcher contact ORSP which can clarify whether there is cause for concern for export-control purposes and determine whether the researcher is able to receive the information before accepting it.
Technology or Equipment That Could Be Related to Munitions
Where a research project is to develop technology or equipment that may have a military application, the administrator should review closely the Statement of Work to first evaluate the nature of any export controls on the equipment. There is a heightened likelihood that it may be on the Munitions List and that a license may be required if any equipment or technology is a deliverable to the sponsor.
As a license will generally require a minimum of 6-8 weeks to acquire, a researcher should also consider whether purchasing the controlled equipment abroad is possible or alternatively whether the equipment can be shipped directly from the company to the foreign research site, as it is the party exporting the equipment who is required to secure the export license. However, even if the equipment is exported by another party, the researcher should also be careful not to export "technical assistance" or "defense services" in the form of controlled information about the equipment such as technical specifications or instructions on how to use the equipment. Under certain circumstances, providing this information may also require a license and ORSP should be contacted before doing so to evaluate whether a license is required.
- Development of bullet-proof material
- Research satellites or research equipment to be sent to a satellite
- Optical and guidance equipment, including GPS devices
Restrictions on Foreign Nationals on Research Projects
Agreeing to restrict participation on a research project is against University policy and if accepted would create a significant burden on the institution to comply with this requirement. In addition, such a restriction can jeopardize the fundamental research exclusion. If there is any indication that the participants on a research project are to be limited in some manner, it is necessary to evaluate with ORSP whether the project can go forward.
Foreign National Restriction
- Contractor must submit employee's eligibility documentation for review and approval.
- All foreign nationals who work on the contract or task order shall be approved by the Contracting Officer before beginning work on a contract/task order.
- By signing the contract, the Contractor certifies that no foreign nationals are working under the contract.
Publication Approval Restrictions
Restrictions on publication can destroy the fundamental research exclusion as well as violate University policy on freedom to publish research results. These restrictions may be stated in many places, such as the Request for Proposal, the cover letters from the sponsors or the proposed agreements. It is very important that they be identified and addressed because they are sometimes very difficult to negotiate out and may prevent a project from going forward.
- Publication Approval
- The contractor shall not release to anyone outside the Contractor's organization any unclassified information, regardless of medium (e.g., film, tape, document), pertaining to any part of this contract or any program related to this contract, unless the Contracting Officer has given prior written approval. (excerpt from DFAR 252.204-7000)
- There shall be no dissemination or publication of information developed under this contract or contained in the reports to be furnished pursuant to this contract without prior written approval of the Contracting Officer.
Traveling with a Laptop or Other Electronics
Researchers commonly carry laptops, cellphones and tablets with them around the world. It is imperative to know that this means the laptop and/or cellphone and/or tablet is being exported. This is true not only when the laptop and/or cellphone and/or tablet is abroad, but also when they allow a person in a foreign country to use the laptop and/or cellphone and/or tablet or allow a foreign national access to the laptop and/or cellphone and/or tablet in the United States.
Researchers should review the software and data they may be carrying to ensure that they are not taking any controlled software or technical information out of the country. The same applies to global positioning systems (GPS). The underlying software is covered by the EAR and, in some cases, the ITAR.
Export regulations vary based on the country to which a researcher is traveling and the purpose for which he or she intends to use the device. However, a licensing exception may apply to the export of a laptop or GPS, which potentially would enable a researcher to take the equipment abroad without violating either the EAR or ITAR.
Contact Information Technology (IT) to learn more about the clean laptop program.