The bulk of research conducted at the University of Texas at Dallas is exempt from export control regulations because researchers engage in basic and applied research activities where the research results are open to the public. The ITAR uses the term fundamental research to describe basic and applied research in science and engineering at an accredited institution of higher learning where the results of which ordinarily are published and shared broadly within the scientific community.
Fundamental research is distinguished from proprietary research, as well as industrial development, design, production, and product utilization; the results of which ordinarily are restricted for proprietary reasons or pursuant to federal access controls. Conducting a research project with contractual or government-imposed restrictions on publishing, proprietary information, or access to research results may trigger export controls. Researchers may also encounter export control issues if they:
- Have a foreign national working with controlled proprietary technology as part of the project, or,
- Work on a project that has controlled proprietary technology or the government has placed access controls on the technology, which includes the following:
- Military- or space-related information, technical data, equipment, or software.
- Research related to nuclear, chemical, biological, weapon, missile, unmanned vehicle, or encryption technologies.
In certain situations, a researcher must have a Technology Control Plan to manage compliance with export control regulations. The Office of Research Compliance will assist the researcher to implement the plan and its accompanying access controls.
Researchers must clearly understand compliance with export control laws is not discretionary, and ignoring them invites serious consequences. Violations may instigate civil and criminal penalties, large fines assessed to the University and the researchers, and the suspension of research programs.
Technology in the Public Domain
National Security Decision Directive-189 describes research as available in the public domain if it passes this two-prong test:
- Research results are freely publishable
- There are no restrictions on the access and dissemination of research results
Either publication restrictions (excepting limited reviews for patent protection or removal of proprietary information), limitations on the access, or the dissemination of research results will cause for removal of the information from the public domain and invalidate the fundamental research exclusion.
The International Traffic in Arms Regulations (ITAR) considers information in the public domain if is meets one or more of the following criteria:
- Available through sale at newsstands and bookstores
- On a website
- Through subscriptions that 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 United States; and
- Through fundamental research in science and engineering at accredited institutions of higher learning in the United States, where the resulting information is ordinarily published and shared broadly in the scientific community
Unlicensed and Licensed Exports
Researchers should be aware an export can occur through a variety of means, including:
- Oral communications
- Written documentation (including e-mails)
- Visual inspections of any technology, software or technical data to any non-U.S. citizen, whether here in the U.S. or abroad
The International Traffic in Arms Regulations (ITAR) only permits the unlicensed export of:
- Information in the public domain
- Information concerning general scientific, mathematical, or engineering principles commonly taught in schools, colleges, and universities
- General systems description of defense articles
- Basic marketing information on function or purpose
- Technical information in certain “top-level” categories
Conversations with sponsors can involve informal agreements with respect to decisions at the discretion of the researcher (e.g., not to submit research articles for publication until they have been approved by the sponsor). These informal agreements can invalidate the fundamental research exclusion.
Researchers should review the International Traffic in Arms Regulations before exchanging technical information not yet published regarding a defense article found on the USML with a foreign national or foreign entity. The ITAR prohibits the furnishing of assistance, including training, related to a defense article to foreign persons. It is especially important to recognize that, while the information itself may be in the public domain, any interaction with foreign persons about the information can, under certain circumstances, be controlled.
Export Control Licenses
In certain circumstances the export of technology, including particular technical and scientific data, is prohibited or requires a license. “Controlled” technologies require an export license unless their research is shown to be available in the public domain. Technical information that requires an export license under the ITAR before sharing with a foreign national or foreign entity includes unpublished, 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
- Detailed schematic diagrams or interface information, as well as manufacturing or assembly processes and analytical methods of procedures
The “defense services” provision of the ITAR controls the interaction between U.S. and foreign persons of any information that is required for the design, development, production, manufacture, assembly, operation, repair, testing, maintenance, or modification of defense articles such as spacecraft. While it does not include information concerning general scientific, mathematical, or engineering principles, defense services can be based entirely on exchanges of information in the public domain.
The Assistant Vice President of Research Compliance is UTD’s “Empowered Official” for export control issues. In coordination with the Office of Sponsored Projects, the Empowered Official arranges for appropriate support to address export control and license issues, and is authorized to sign license applications on behalf of UTD to the Departments of State, Commerce, and Treasury. Licenses typically take from two to six months to procure.
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