National Security Defense Directive–189 (NSDD-189 CFR 27.404)
Basic Rights in Data Clause: “In contracts for basic or applied research with universities or colleges, no restrictions may be placed upon the conduct or reporting of the results of unclassified basic or applied research, except as provided in applicable U.S. Statutes.”
- An actual shipment or transmission of items controlled under the EAR or ITAR out of the United States;
- Any written, oral or visual release or disclosure of controlled technology, information or software to a foreign national either in the United States or outside the United States; or
- Any actual use or application of controlled technology on behalf of or for the benefit of any foreign entity or person anywhere.
Export is specifically defined to preclude the participation of foreign nationals (students or faculty) in research that involves controlled technologies without first obtaining a license from the appropriate government agency.
The official definition of export under the EAR (available at http://www.access.gpo.gov/bis/ear/pdf/772.pdf ) and the ITAR should be consulted when determining whether a specific act constitutes an export.
Transferring information (includes making technical data and computer software available over the Internet) or transferring a physical item or a computer program to a foreign country is an “export.” Providing controlled information to a foreign person legally within the United States is also considered an export of that information. A “deemed export” might take place verbally, in writing or by allowing a foreign person access to physical items, such as equipment or devices, or computer software from which the person can obtain the controlled information by inspection or use.
Under ITAR, technical data includes information which is required for the design, development, production, manufacture, assembly, operation, repair, testing, maintenance or modification of defense articles (including civilian space articles on the U.S. Munitions List); classified information relating to defense articles and defense services; information covered by an invention secrecy order; and software directly related to defense articles. It does not include basic marketing information on function or purpose or general system descriptions.
Under EAR, technology includes specific information necessary for the development, production or use of a product. The information takes the form of “technical data” or “technical assistance.“
Embargoed Countries: The Office Of Foreign Asset Controls (OFAC)
The Office of Foreign Assets Control (OFAC) in the U.S. Department of the Treasury administers and enforces economic and trade sanctions based on U.S. foreign policy and national security goals against targeted foreign countries, terrorists, international narcotics traffickers, and those engaged in activities related to the proliferation of weapons of mass destruction.
Export Administration Regulations (EAR) (15CFR730-774)
Technologies and products that are controlled under the EAR are identified on the Commodity Control List (CCL), and divided into ten categories:
- Nuclear Materials, Facilities and Equipment, and Miscellaneous;
- Materials, Chemicals, “Microorganisms,” and Toxins;
- Materials Processing;
- Electronics Design, Development and Production;
- Telecommunications and Information Security;
- Navigation and Avionics;
- Marine; and
- Propulsion Systems, Space Vehicles, and Related Equipment.
The CCL ALSO includes a separate category (EAR99) that covers everything not expressly listed elsewhere.
Many technologies controlled by EAR are “dual use,” indicating that they are not specifically developed or manufactured for military use, but they may be useful for either military or non-military (civilian) applications. The EAR also applies to some items that have solely civilian use.
Any foreign corporation, business association, partnership, trust, society or any other entity or group that is not incorporated or organized to do business in the United States, as well as international organizations, foreign governments and any agency or subdivision of foreign governments (e.g. diplomatic missions), and any natural person who is not a citizen or lawful permanent resident of the United States (as defined by 8 U.S.C. 1101(a)(20) (http://www4.law.cornell.edu/uscode/8/1101.html)) or who does not qualify as a protected individual (as defined by 8 U.S.C. 1324(a)(3) (http://www4.law.cornell.edu/uscode/8/1324.html)).
Basic and applied research in science and/or engineering where the resulting information is ordinarily published and shared broadly in the scientific community. Fundamental research is distinguished from research resulting in results which are restricted for proprietary or for specific national security reasons.
University research will not qualify as fundamental research if:
- the university or researcher accepts any restrictions on the publication of the information resulting from the research, other than limited prepublication reviews by research sponsors to prevent inadvertent disclosure of their proprietary information or the compromise of the patent rights of sponsors; or,
- the research is federally funded and the university or the researcher accepts specific access and dissemination controls regarding the resulting information.
The EAR definition of fundamental research is available at 15CFR734.8 (http://www.access.gpo.gov/nara/cfr/waisidx_01/15cfr734_01.html). The equivalent definition under ITAR, Public Domain, is located at 22CFR120.11 (http://www.access.gpo.gov/nara/cfr/waisidx_01/22cfr120_01.html).
International Traffic in Arms Regulations (ITAR) (22CFR120-130)
ITAR controls technologies, products and information identified on the United States Munitions List (USML) 22CFR121.1, and other items specifically designed or produced for defense applications. The items and services are primarily for military applications and are referred to as “defense articles” and “defense services.” Spacecraft systems and associated equipment are also on the USML (Category XV), even though they might be for civilian use only and are not developed or used for defense applications.
Public Domain (22CFR120.11)
Information that is “published and generally accessible or available to the public” through a variety of means (see p. 6 for detailed list, under “ITAR Exemptions”).
Classified Technical Data
Information only released to employees with the appropriate level of clearance and the appropriate need-to-know. The handling of classified information is discussed in detail in the University of Mississippi Standard Practices and Procedures for Safeguarding Classified Information. A copy of this manual is supplied to all cleared employees. Classified information is not authorized for release or disclosure to any foreign national. No classified access will be provided to unauthorized foreign nationals. Foreign nationals will be denied access to areas where classified design, development, and testing occurs, as well as to any area where classified work is in progress.
Foreign nationals are not authorized access to classified contracts, contracts of a sensitive DOD nature (contracts that have DFARS Clause 252.204-7000 incorporated or a modified version of that clause), or contracts with export restrictions without the proper authority and/or license.
Contact the Facilities Security Officer, Dr. Mary Jourdan, (662-915-5006 or firstname.lastname@example.org) for further information regarding security clearances, classified document control, foreign visitor information, security inspections, etc.