One of the primary purposes of Vanderbilt University is to create and disseminate knowledge in an open and free research environment, and most University research is not subject to – or excluded from – U.S. export control laws and regulations. However, the University recognizes that some research is subject to U.S. export control laws and regulations and that controlled research must be handled accordingly. See our Research Flyer for additional information.
3.) Troublesome Clauses & Restrictions
4.) DD Form 2345
EXPORT CONTROL EXCLUSIONS
I. Fundamental Research Exclusion (FRE)
“Fundamental research” is an important concept for universities and refers to “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.” Most research at Vanderbilt falls under the fundamental designation, which means it is excluded from export controls by the EAR and/or ITAR; this is known as the Fundamental Research Exclusion (FRE).
It is important to understand which items and technologies do and do not qualify for this exclusion:
|Does Qualify||Does Not Qualify|
|Information resulting from research||Input information (work done prior)|
|ITAR defense services|
|Research conducted outside the U.S.|
You can lose the FRE and subject yourself and your research to export controls. The following circumstances negate the ability to use the FRE and subject your research to the full weight of U.S. export laws and regulations:
- Publication restrictions
- Participation restrictions based on nationality
- Dissemination restrictions that limits who can access
- A “side deal” a PI has made with the sponsor
- Activity with an embargoed or sanctioned country
- Activity with restricted or denied parties
II. Educational Information Exclusion
Information normally taught or released by the university as part of the instruction in a catalog course and associated teaching laboratories is considered Educational Information and is not subject to export controls. This includes online courses, as well.
III. Public Information Exclusion
How do you know if your research is controlled?
Most items and information are controlled to some degree
The U.S Department of Commerce’s Bureau of Industry and Security (BIS) maintains the Export Administration Regulations (EAR), which regulates export-controlled items, including dual-use items 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 export classification, or the Export Control Classification Number (ECCN).
- EAR99 is an export classification indicating an item is subject to the EAR but is not listed with a specific ECCN on the CCL. Under most circumstances, EAR99 items do not require an export license.
- 600 Series items on the CCL are more sensitive items previously controlled under the United States Munitions List (USML) or were covered by the Wassenaar Arrangement Munitions List.
- 9×515 ECCN designated items include “spacecraft” and related items, as well as some radiation-hardened microelectronic circuits, that were previously controlled on the USML.
The U.S. Department of State, through the Directorate of Defense Trade Controls (DDTC), administers the International Traffic in Arms Regulations (ITAR), which regulates defense articles and services for the development or design of military and space applications. ITAR-controlled items are maintained on the U.S. Munitions List (USML) under 21 categories of control. Examples of technologies controlled by the EAR and ITAR are listed here.
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 method of locating it is to contact the manufacturer or sponsor and ask for the ECCN or ITAR category. If you need additional help, contact email@example.com to assist with a self-classification. 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.
TROUBLESOME CLAUSES AND RESTRICTIONS
Troublesome clauses may be found in research agreements and negate the ability to use the Fundamental Research Exclusion (FRE). They most often appear in industry contracts with a defense prime, but the general restrictions may appear in any type of research agreement; if not removed or negotiated out of the agreement, they may subject the project to the full weight of export controls.These clauses contain restrictions on one or more of the following:
- Dissemination or access
|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|
If troublesome clauses appear in your research agreement, work with Sponsored Programs Administration (SPA) to attempt to negotiate these out.
DD FORM 2345 – MILITARILY CRITICAL TECHNICAL DATA AGREEMENT
VEC maintains an approved Military Critical Technical Agreement/DD Form 2345 with the United States – Canada Joint Certification Office (JCO).
What is the Military Critical Technical Data Agreement/DD Form 2345?
DD Form 2345 – or the Military Critical Technical Data Agreement (DD2345) – is required by the U.S. Department of Defense for contractors, including universities, seeking to access militarily critical technical data (MCTD), a type of unclassified technical data that discloses specifications for critical technology or information with military or space applications that is in the possession or under the control of a DoD component. Such data may not be exported without an approval, authorization, license, license exception, or exemption in accordance with U.S. export control laws and regulations; this also means approval is required to share any such data with any foreign nationals inside the United States (i.e., a deemed export).*
The U.S. Department of Defense uses militarily critical technical data to produce military or space equipment and related technology, and universities may require access to such data to conduct scientific research on defense-funded contracts. It is considered “militarily critical” because unauthorized access could pose a threat to US national security, therefore it is also strictly controlled in the United States (see Directive 5230.25 of the United States Department of Defense). DD Form 2345 is used to register with the US – Canada Joint Certification Program (JCP), which is responsible for reviewing and certifying DD Form 2345 and helping protect MCTD from foreign adversaries.
Since MCTD is export-controlled, an approved Technology Control Plan is required for all such data, regardless of format, that is accessed/received and/or stored by or on behalf of the University or University personnel. A TCP is not required for meeting participation or conference attendance unless the Vanderbilt personnel will retain unclassified technical data (e.g., notes, conference agendas, presentations, etc.).
Note: Although not specifically required by the JCP, associated contractual requirements may require that subject data be safeguarded as controlled unclassified information (CUI).
US Defense Directive 5230.25 defines unclassified technical data as any of the following:
- Technical data with military or space applications
- Blueprints, drawings, plans, instructions, computer software or documentation
- Other technical information that can be used (or adapted for use) to design, engineer, produce, manufacture, operate, repair, overhaul, or reproduce military or space equipment or technology concerning such equipment
Why does VEC have an approved form?
VEC maintains an approved Military Critical Technical Agreement/DD Form 2345 with the United States – Canada Joint Certification Office (JCO), and this certification is primarily used to facilitate
a.) the exchange of export-controlled technical data between defense contractors (i.e., between prime contractor and subcontractor) or
b.) the participation of university researchers in DoD-sponsored events (e.g., to discuss program requirements or present research findings).
What should you do if your research requires a DD Form 2345?
Vanderbilt personnel requiring DD Form 2345 and access to MCTD must use the University’s institutional certification rather than register as individuals, since Vanderbilt Export Controls is responsible for administering DD2345 certification under the oversight of a designated Data Custodian, who is responsible for ensuring the appropriate safeguards are in place to prevent unauthorized disclosures and exports before releasing it to the end user (i.e., researcher).
THOSE REQUIRING A DD FORM 2345 MUST CONTACT VEC.
*See 22 U.S.C. 2778, Arms Export Control Act; 50 U.S.C. chapter 35, International Emergency Economic Powers Act; 22 CFR parts 120-130, ITAR; and 15 CFR parts 730 – 774, EAR.