Douglas Olsen
The International Traffic in Arms Regulations (ITAR) is a United States regulation that controls the manufacture, sale, and distribution of defense and space-related articles and services. ITAR mandates that access to physical materials or technical data related to defense and military technologies is restricted to US persons only. University students, whether US or foreign, may be able to access ITAR-controlled information for research purposes under specific guidelines and with proper authorization from the Department of State. However, ITAR compliance in universities is complex and requires a thorough understanding of export control regulations.
| Characteristics | Values |
|---|---|
| Definition | International Traffic in Arms Regulations (ITAR) |
| Applicability | Does not apply to general scientific, mathematical, or engineering principles commonly taught in schools and colleges or information in the public domain. |
| Compliance | Universities must implement compliance programs based on their risk assessment. |
| Fundamental Research | Research in science and engineering at accredited institutions is considered fundamental research and can be shared with foreign nationals without an export license. |
| Non-Fundamental Research | Research that is not fundamental and involves foreign persons requires an export license. |
| Export | Includes sending defense articles out of the US, disclosing technical data to a foreign person, or performing a defense service for a foreign person. |
| US Persons | US citizens, lawful permanent residents, protected persons, or employees of the US government are considered US persons and can access ITAR data. |
| Foreign Persons | Foreign persons may require an export license to access ITAR data and are subject to additional restrictions. |
| Penalties | Violations of ITAR can result in fines of up to $1 million per violation and possible incarceration. |
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What You'll Learn
University interpretation of export control regulations
The International Traffic in Arms Regulations (ITAR) and the Export Administration Regulations (EAR) are key frameworks that universities must consider. ITAR, administered by the US Department of State, controls the export of defence-related items, services, and information. EAR, on the other hand, focuses on dual-use technologies with potential military and non-military applications. While most university activities may not fall under these regulations, compliance is crucial when they do.
Universities have raised concerns about the need for improved guidance from the Departments of State and Commerce to address university-specific challenges. For instance, the term "fundamental research," which refers to openly conducted and published research in science and engineering, is often misunderstood by Department of Defense officials, potentially limiting universities' ability to conduct research for the department. This highlights the importance of consistent interpretation and understanding of export control regulations by universities and government agencies alike.
To ensure compliance, universities like Cornell have established an Export Controls Office, providing consultative expertise on EAR, ITAR, and trade sanction regulations. They assist researchers in navigating the complex landscape of export control laws and determining if their work falls under specific regulations. This includes helping researchers obtain export licenses when necessary, especially when collaborating with foreign nationals or sharing controlled technologies and information.
The interpretation and application of export control regulations can significantly impact the research conducted on university campuses. For example, Stanford's interpretation of ITAR led to classifying all satellite systems as controlled defence articles, limiting the activities of international students in aerospace engineering. In contrast, the University of Michigan obtained approval from the Department of State to proceed with satellite development research involving both US and non-US citizens, as it was deemed fundamental research.
In conclusion, university interpretation of export control regulations is a dynamic and critical aspect of maintaining compliance and facilitating research. Universities must navigate complex regulations while fostering innovation and collaboration. By working closely with government agencies and seeking guidance, universities can ensure they understand and apply export control regulations accurately, enabling them to contribute to cutting-edge research while safeguarding sensitive information and technologies.
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Fundamental research and international students
The International Traffic in Arms Regulations (ITAR) specifies that the products of "fundamental research" are not considered controlled "technical data," as long as they are published freely. Fundamental research is defined as university-based "basic and applied research in science and engineering where the resulting information is ordinarily published and shared broadly within the scientific community". It is distinguished from research whose results are restricted for proprietary reasons or specific US government access and dissemination controls.
However, research that does not meet the criteria of "fundamental research" cannot involve foreign persons without export licenses. This is because ITAR dictates that information and material pertaining to defence and military technologies may only be shared with US persons unless authorization is received to export the material or information to a foreign person. US persons can face heavy fines if they provide foreign persons with access to ITAR-protected defence articles, services, or technical data without authorization or the use of an exemption.
The interpretation of export control regulations and the willingness to seek opinions from the US State Department affect the research that can be conducted on university campuses. For example, the University of Michigan obtained an opinion from the Department of State stating that satellite development work on an ITAR-controlled satellite by a group of US and non-US citizens was considered fundamental research and was allowed to proceed. In contrast, Stanford's Export Control Officer maintains that all satellite systems are controlled defence articles under the ITAR, limiting the activities of laboratories and project-based groups on campus. This particularly affects international students studying aerospace engineering or related fields at US universities, as opportunities to gain practical experience through internships are typically not offered to them at US aerospace companies.
To minimize the chance of export control violations, it is good practice to limit material presented outside of the United States to that which has already been published per the definitions of the ITAR. When discussing potential collaborations with foreign nationals, it is important to use judgment and contact the ECO if there is any doubt about the areas of research being discussed or other material being disclosed.
Overall, ITAR regulations have been criticized for preventing the best international students from studying and contributing in the United States and hindering cooperation on certain types of international scientific projects.
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Compliance and risk assessment
Compliance with the International Traffic in Arms Regulations (ITAR) is crucial for universities and research institutions dealing with defense-related items and data. Non-compliance can result in heavy fines and, in the worst-case scenario, incarceration of up to 20 years.
ITAR classifies employees and students into US persons and foreign persons, with different eligibility criteria for accessing ITAR-protected information. US persons, including US citizens, lawful permanent residents, protected persons, and employees of the US government, can access ITAR data without an export license. On the other hand, foreign persons who are not US citizens, permanent residents, or government employees may require an export license to access ITAR data.
Universities must implement compliance programs tailored to their specific risk factors, such as the type, scope, and volume of ITAR-related activities conducted. They should use tools like the Universities Risk Matrix and the ITAR Compliance Matrix to assess their level of ITAR compliance risk. Additionally, mandatory training for Principal Investigators (PIs) involved in ITAR-controlled projects is essential to identify such projects and research.
To maintain compliance, universities should establish appropriate security controls to prevent unauthorized access to ITAR-sensitive data. This includes segregating ITAR-controlled technical data and expanding technology protection processes to track foreign person access to IT systems, rooms, and labs.
Furthermore, universities should review all services provided to foreign person researchers to ensure no unauthorized defense services are provided. They should also maintain export control documentation, risk assessments, and project data within a centralized database.
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Employment of foreign nationals
The International Traffic in Arms Regulations (ITAR) are designed to protect defence-related items, patents, and data, and to safeguard US national security. ITAR categorises employees into US persons and foreign persons, with different eligibility criteria for each category. US citizens, lawful permanent residents, "protected persons", or employees of the US government are considered US persons and can access ITAR-protected information without an export license.
Foreign persons, who are not US citizens, permanent residents, "protected persons", or US government employees, may require an export license to access ITAR-protected information. However, ITAR does not impose any requirements on US companies concerning the recruitment, selection, employment, promotion, or retention of foreign persons. Instead, it requires companies to obtain export licenses for foreign employees if their positions require access to ITAR-protected information.
Companies must adhere to US anti-discrimination laws, such as the Immigration and Nationality Act (INA) and Title VII of the Civil Rights Act of 1964, while also following export control regulations. The INA prohibits unfair documentary practices and retaliation against individuals for participating in a DOJ investigation. Title VII's national security exception permits employers not to hire individuals if the job is subject to requirements imposed in the interest of national security, and the individual does not meet those requirements.
When hiring foreign nationals, companies must also be mindful of export control laws and obtain the appropriate export control authorisations. Before obtaining the appropriate export authorisation, companies must implement internal controls to protect against the unauthorised disclosure of controlled information to foreign persons. These controls can include passwords on file-sharing sites and employee badge coding to restrict access to certain areas.
Additionally, employers are encouraged to implement an ITAR compliance program, including training sessions for employees to ensure awareness of ITAR regulations and internal processes for maintaining compliance. Non-compliance with ITAR provisions can result in severe fines and civil penalties, as well as reputational damage and loss of business.
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Access to technical data
The International Traffic in Arms Regulations (ITAR) specifies that access to technical data related to defence and military technologies is restricted to US persons only. US persons include US citizens, lawful permanent residents, protected persons, and employees of the US government. US organisations can face heavy fines if they provide foreign persons with access to ITAR-protected technical data without authorisation or the use of an exemption.
ITAR does not apply to general scientific, mathematical, or engineering principles commonly taught in schools and colleges, or information in the public domain. The ITAR considers fundamental research in science and engineering at accredited US institutions of higher learning to be in the public domain, and therefore no export license is needed to share the resulting information with foreign nationals in the US. Fundamental research is defined as university-based basic and applied research in science and engineering where the resulting information is ordinarily published and shared within the scientific community. Research that does not meet the criteria of fundamental research cannot involve foreign persons without export licenses.
To comply with ITAR, universities and research institutions can use the Universities Risk Matrix to understand, review, and assess their ITAR compliance risks. This matrix is organised by low, medium, and high risk in several categories, including type of research performed, foreign persons, international travel, and access to technical data. Additionally, universities should implement compliance programs tailored to their risk based on the type, scope, and volume of activities subject to ITAR. This includes screening foreign students and faculty, as well as understanding the involvement of foreign persons through foreign gifts and funding sources.
To prevent unauthorized access to ITAR-sensitive data, universities must establish appropriate security controls. This includes segregating ITAR-controlled technical data and expanding technology protection processes to track foreign person access to IT systems and labs.
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Frequently asked questions
ITAR stands for International Traffic in Arms Regulations. It is a set of US regulations that control the manufacture, sale, and distribution of defense and military-related technologies and information.
ITAR restricts access to physical materials or technical data related to defense and military technologies. This includes items listed on the US Munitions List, which is updated periodically.
According to ITAR, only US persons (including organizations) can access ITAR-protected information. US persons cannot provide foreign persons with access to ITAR-protected information without authorization or an export license.
University students, whether US persons or foreign nationals, can access ITAR-protected information if they have received authorization or if their research falls under "fundamental research." Fundamental research is basic and applied research in science and engineering where the resulting information is ordinarily published and shared within the scientific community.
Universities can use the Universities Risk Matrix and the ITAR Compliance Matrix to understand and assess their ITAR compliance risks. They can also implement compliance programs tailored to their specific risks and establish mandatory training for personnel involved in ITAR-controlled projects.
