It is the policy of the Old Dominion University Research Foundation to comply with all United States export control laws and regulations, including the US Department of Commerce’s Export Administration Regulations (EAR) and the US Department of State’s International Traffic in Arms Regulations (ITAR) and the US Treasury Department’s Office of Foreign Assets Control (OFAC). This policy applies to all faculty, staff, and students employed by the Research Foundation or employed by Old Dominion University and performing work under sponsored programs grants or agreements.
The federal government has become increasingly concerned about protecting information and technology from disclosure when such information and technology is important for U.S. economic vitality or contributes to the military capabilities of international adversaries. Export laws and regulations restrict use of and access to this information and technology. All faculty, staff and students must comply with these laws and regulations. In case of violations, criminal penalties can be applied, including substantial fines and prison terms.
The term “Export” is the shipment of Controlled Physical Items that require Export Licenses or the transfer of Controlled Information, including technical data, to persons or entities outside of the US. Export involving the disclosure of controlled information, including technical data, to Foreign Nationals in the US is sometimes referred to as “Deemed Export”.
A “Foreign National” is a natural person (or a corporation or other entity) that is not a lawful permanent resident of the United States -that is, someone who has not been issued a “green card.”
“Controlled Physical Items” means dual use, i.e., civilian and military, technologies listed on the Commerce Control List at 22 CFR § 121 of the Export Administration Regulations (EAR) and defense articles listed on the United States Munitions List (USML) at 15 CFR § 774, Supp. 1 of the International Trafficking In Arms Regulations (ITAR).
“Controlled Information” is information about export controlled items including that required for the design, development, production, manufacture, assembly, operation, repair, testing, maintenance or modification of controlled items and may be released through visual inspection, oral exchanges, or the application of personal knowledge or technical experience with controlled items. Controlled Information may be in the form of blueprints, drawings, photographs, plans, instructions and documentation. Also included in this definition are intangible items such as software and algorithms listed under EAR or ITAR.
Please refer to the Research Foundation’s Review and Documentation Checklist at https://researchfoundation.odu.edu/wp-content/uploads/2019/11/exportcontrolchecklist-1.pdf for additional information and definitions of other key terms.
Any Research Foundation employee or member of the University community must consider whether export controls before undertaking certain activities. Amongst those activities are initiating a new funded or unfunded research effort, allowing access to current research, allowing Foreign Nationals to participate in a research activity, or receiving controlled materials from a third party.
Primary responsibility for compliance with export control regulations rests with the Principal Investigator (PI), as he or she has the best understanding of technology and tools involved. When submitting a proposal for funding, the PI will indicate in the responses to item 25 of the Proposal Transmittal Form (“Blue Sheets”) whether the project involves Foreign Nationals or foreign countries. If the response to any of the screening questions in item 25 of the Proposal Transmittal form is “Yes” then the PI is to complete the Export Control Checklist form. The additional information provided on the Export Control Checklist form will aid in assessing whether government approval for use of the Controlled Physical Items or Controlled Information is required. The Executive Director and University’s Licensing Manager are available to assist faculty, staff, and students in assessing their activities under these regulations. After work on the project has begun, the PI should notify the [Executive Director? Licensing Manager? Someone Else?] prior to implementing any changes that may give rise to the application of export controls, such as a change in the scope of work or the addition of new staff or students to the project. If it is determined that export controls apply to the project, the investigator must adhere strictly to any applicable restrictions and cooperate fully with efforts to monitor compliance. The PI will be asked to sign the Certification on the Handling of Export-Controlled Information form attesting that she or he has knowledge of export control regulations and of the penalties associated with noncompliance.
Research Foundation Grant & Contract Administrators (GCAs) will review research agreements for export control language and for terms or provisions that restrict access to or prohibit publication of research results, limit the participation of foreign nationals in the research, or otherwise render the fundamental research exclusion inapplicable. If such provisions cannot be eliminated through negotiation, and if it appears no exclusions or exemptions from the export control regulations are applicable, the GCA will consult with the PI to determine whether the technology or other material to be used in the research is included on the Commerce Control List or the US Munitions List. In consultation with the Licensing Manager, the Executive Director will make a final determination as to whether export control regulations apply to the project and will provide written notice of that determination to the PI, the department chair, the dean, and the Vice President for Research. This notice will also outline any recommendations for compliance measures to be implemented in the research.