One of the primary purposes of Vanderbilt University is to create and disseminate knowledge in an open and free research environment. However, the University recognizes that some research may be subject to export control laws and regulations.
How do you know if your research is controlled?
Most items and information are controlled to some degree
The U.S Department of Commerce, through the Bureau of Industry and Security (BIS), maintains the Export Administration Regulations (EAR). The EAR regulates dual-use items and technologies (having both civil and military applications) on the Commerce Control List (CCL). The degree of control on this list varies per item and in order to determine that degree, it is important to know the classification. All items on the CCL are categorized by an Export Control Classification Number (ECCN). Once you know the ECCN for your item or technology, you can determine its level of control.
EAR99 is a classification that indicates an item is subject to the EAR, but it not listed with a specific ECCN on the CCL. Under most circumstances EAR99 items do not require an export license.
The U.S. Department of State, through the Directorate of Defense Trade Controls (DDTC), administers the International Traffic in Arms Regulations (ITAR). The ITAR regulates defense articles and services for the development or design of military and space applications on the U.S. Munitions List (USML). This list is organized by 21 categories of control.
Classification of Research
Most all items and technologies are controlled to some degree. Just because it is not labeled does not mean it is not controlled. Just because you bought it commercially does not mean it is not controlled. If you do not know the classification of your research, the most reliable source is to contact the manufacturer or sponsor and ask for the ECCN or ITAR Category. If you need additional help, contact firstname.lastname@example.org to assist with a self-classification. Some examples of controlled technologies are listed here. Keep in mind, in general, while almost every item located within the U.S. is subject to export, most do not require an export license.
Fundamental research is an important definition to universities. Fundamental research is basic or applied research in science, engineering, or mathematics, the results of which ordinarily are published and shared broadly within the scientific community, and for which the researchers have not accepted restrictions for proprietary or national security reasons.
Why is this important? This allows university-based research that might otherwise be controlled for export by either the EAR or ITAR to be excluded. Most university research is considered to be fundamental and is excluded from export controls under the Fundamental Research Exclusion (FRE). However, it is important to note what does and does not qualify.
|Does Qualify||Does Not Qualify|
|Information resulting from research||Input information (work done prior)|
|ITAR defense services|
|Research conducted outside the U.S.|
Did you know you can lose the FRE and subject yourself and your research to export controls? The following negate the ability to use the FRE and subject your research to the full weight of export laws and regulations:
- Publication restriction
- Participation restriction based on nationality
- Dissemination restriction that limits who can access
- If the PI has made a “side deal” with the sponsor
- Activity with an embargoed or sanctioned country
- Activity with restricted or denied parties
Troublesome Clauses and Restrictions
Troublesome clauses may be found in research agreements and negate the ability to use the Fundamental Research Exclusion (FRE). These clauses contain restrictions on one of the following:
- Dissemination or access
They can be encountered at both the prime and sub level and if not removed from your research agreement, may subject the project to the full weight of export controls. Here are some examples:
|Publication||DFARS 252.204-7000 Disclosure of Information|
|FAR 52.227-17 Special Works|
|FAR 52.227-14 Rights in Data|
|Participation||NFS 1852.225-71 Restriction on Funding Activities with China|
|AFRL 52.004-440 Foreign Nationals Performing Under Contract|
|ER 52.0000-4017 Foreign Nationals|
|DEAR 952.204-71 Sensitive Foreign Nations Controls|
|Dissemination||DFARS 252.204-7008 Compliance with Safeguarding Covered Defense Information|
|DFARS 252.204-7009 Requirements Regarding Potential Access to Export-Controlled Items|
|DFARS 252.204-7012 Safeguarding Covered Defense Information and Cyber Incident Reporting|
|NFS 1852.225-72 Access to Sensitive Information|
|NFS 1852.204-73 Release of Sensitive Information|
List is not all inclusive
Troublesome clauses most often appear in industry contracts with a defense prime, but the general restrictions may appear in any type of research agreement. If troublesome clauses appear in your research agreement, work with your Sponsored Programs Administration (SPA) representative to attempt to negotiate out. If not removed, contact VEC to determine next steps of action.
Restrictions on Research Awards: Troublesome Clauses - A report of the AAU/COGR Task Force