What are export controls?
Export controls are federal laws that govern the transmission of controlled items and associated technical data to foreign nationals. The two primary regulations are International Traffic in Arms (ITAR– see 22 CFR §§ 120-130) and the Export Administration Regulations (EAR, see 15 CFR §§700-799).
Is unfunded research subject to export controls?
Yes, in particular to international collaborations; however, most unfunded research will qualify for an exclusion so long as the research is published, or is planned to be published.
What is an export?
An export is any oral, written, electronic or visual disclosure, shipment, transfer or transmission of commodities, technology, information, technical data, assistance or software codes to:
· Anyone outside of the US
· A “foreign national” wherever they are (deemed export)
· A foreign embassy or affiliate
What is a dual use item?
Items and technologies or associated technical data that are commercial in nature and also have military or proliferation applications. Technologies determined to have a dual capability are enumerated in the Commerce Control List (CCL) (15 CFR 730-774) of the EAR.
What is a defense article?
Defense articles are any item or technical data designated on the United States Munitions List (USML) 22 CFR §121 which includes all items, data and services specifically designed, developed, configured, adapted, or modified for a military application, that do not have predominant civil applications, and that do not have performance equivalent to those of an article or service used for civil applications. The term includes technical data recorded or stored in any physical form, models, mockups or other items that reveal technical data directly relating to items in the USML. It does not include basic marketing information on function or purpose or general system descriptions.
What is a defense service?
A defense service per 22 CFR § 120.10 is “The furnishing of assistance (including training) to foreign persons, whether in the United States or abroad in the design, development, engineering, manufacture, production, assembly, testing, repair, maintenance, modification, operation, demilitarization, destruction, processing or use of defense articles;” or “The furnishing to foreign persons of any technical data controlled [in the USML] whether in the United States or abroad;” or ”Military training of any foreign military forces, regular or irregular, in the use of defense articles” including formal or informal instruction of foreign persons in the United States or abroad by correspondence courses, technical, educational, or information publications and media of all kinds, training aid, orientation, training exercise, and military advice.
Who is a foreign national or foreign person?
A Foreign National is any person who is NOT:
A U.S. citizen
Permanent resident alien (Green Card Holders)
Temporary resident under amnesty provisions
The following are considered foreign nationals or foreign persons:
Foreign corporation, business association, partnership entity or group not incorporated in the U.S.
Person in the US in non-immigrant status (i.e. international students, visiting scholars or any person on visa types: H-1B, H-1B1. H-3, L-1, J-1, F-1, L-1, O-1 ,etc.)
What is a restricted party and how do I know if one is involved in my research?
Restricted Parties are individuals or entities with whom the university and its employees may be prohibited by law, or require a license, to export to or engage in business transactions. Such individuals may or may not be foreign nationals. These include the Denied Persons List, Entity List, and Unverified List (Department of Commerce), the Debarred Parties Lists (Department of State), and the Specially Designated Nationals and Blocked Persons List (Department of Treasury). Sponsored Programs routinely screens project participants to ensure they are not Restricted Parties. Contact the Export Control Officer to have additional screens conducted.
What is a sanctioned country?
Sanctioned Countries are designated by the U.S. Government as having limited or comprehensive trade sanctions and embargoes imposed for reasons of anti-terrorism, non-proliferation, narcotics trafficking, or other reasons. Sanctions are prohibitions on transactions (e.g., financial exchanges, providing or receiving services of value) with designated countries, entities or individuals (see, for example, Office of Foreign Assets Control, 31 CFR §§500-599).
What is a deemed export?
A deemed export is the release of technology or information to a foreign national in the U.S., including students, post-docs, faculty, visiting scientists or training fellows.
Deemed exports are the primary area of export control exposure for the university.
What is “technology” or “technical data”?
Technical information beyond general and basic marketing materials about a controlled commodity. The terms do not refer to the controlled equipment/commodity itself, or to the type of information contained in publicly available user manuals. Rather, the terms "technology" and "technical data" mean specific information necessary for the “development”, “production”, or “use” of a commodity, and usually takes the form of blueprints, drawings, photographs, plans, diagrams, models, formulae, tables, engineering specifications, and documentation. The "deemed export" rules apply to the transfer of such technical information to foreign nationals inside the U.S.
What constitutes the “use” of a controlled commodity?
The routine "use" of controlled equipment by foreign nationals (e.g., using it in the ordinary way specified in the user manual, in such a manner that does not disclose technical information about the equipment beyond what is publicly available), does not require a license. However, a license may be required if a foreign national is "using" the equipment in such a way as to access technical information beyond what is publicly available (for example, accessing the source code of software or modifying a piece of equipment in such a way as to gain non-publicly available technical information about its design).
What is not subject to the deemed export rule?
For University research, there are three ways that technical information may qualify for an exclusion from the deemed export rule. Information is excluded if it:
Is in the Public Domain. published or disseminated (as described at 15CFR734.7 and 22CFR120.11(a)(1) through (7))
Arises during, or results from, fundamental research (as described at 15CFR734.8 and 22CFR120.11(a)(8)), or
Is educational information (as described at 15CFR734.9 and 22CFR120.10(a)(5)) released by instruction in catalog courses or associated teaching laboratories of academic institutions.
Does the use of controlled lab equipment by foreign nationals constitute a deemed export?
It depends on the equipment. Use of a defense article by foreign nationals is prohibited, unless a license is obtained prior to “use.”
Use of EAR/CCL items equipment) by a foreign national in the U.S. is not controlled by the export regulations. In the U.S., any person (including foreign nationals) may purchase export-controlled commodities and the "deemed" export rule only applies to technical information about the controlled commodity. As such, while the use of equipment inside the U.S. is not controlled, the transfer of technical information relating to the use (i.e., operation, installation, maintenance, repair, overhaul and refurbishing) of equipment may be controlled in certain circumstances. For example, if the manufacturer of the equipment provided the University some confidential, proprietary information about the design or manufacture of the equipment, then the University might need a "deemed" export license to provide such proprietary information to a foreign national, especially if shipment of the item to the home country of the foreign national would require an export license. In sum, the export regulations allow foreign students, researchers and visitors to “use” (and receive information about how to use) controlled equipment while conducting fundamental research on U.S. university campuses or while studying at the institution, as long as the technical information about the controlled equipment qualifies as "in the public domain" or "publicly available
What are the exclusions and how do I know when they apply to research?
Research is not subject to export controls if it qualifies for at least one of three exclusions:
Fundamental Research Exclusion is a broad-based general legal exclusion that helps to protect technical information (but not tangible items) involved in research from export controls. It is defined as basic and applied research in science and engineering conducted at accredited U.S. institutions of higher education where the resulting information is ordinarily published and shared broadly within the scientific community. Such research can be distinguished from proprietary research and from industrial development, design, production, and product utilization, the results of which ordinarily are restricted for proprietary reasons or specific national security reasons. Research qualifying as “fundamental research” is not subject to export controls.
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 divulging of proprietary information provided to the researcher by sponsor or to insure that publication will not compromise patent rights of the sponsor. There is no general fundamental research exclusion that applies to defense articles (as opposed to technical data) under the ITAR; however, there are exclusions that apply to specific articles under certain circumstances.
Fundamental research permits U.S. universities to allow foreign members of their communities (e.g., students, faculty, and visitors) to participate in research projects involving non-ITAR export-controlled technical information on campus in the U.S. without a deemed export license. Further, technical information resulting from fundamental research may be shared with foreign colleagues
Public Domain Exclusion applies to information that is published and that is generally accessible or available to the public: (1) through sales at newsstands and bookstores; (2) through subscriptions which are available without restriction to any individual who desires to obtain or purchase the published information; (3) through second class mailing privileges granted by the U.S. Government; (4) at libraries open to the public or from which the public can obtain documents; (5) through patents available at any patent office; (6) through unlimited distribution at a conference, meeting, seminar, trade show or exhibition, generally accessible to the public, in the United States; (7) through public release (i.e., unlimited distribution) in any form (e.g., not necessarily in published form) after approval by the cognizant U.S. government department or agency; and (8) through fundamental research in science and engineering at accredited institutions of higher learning in the U.S. where the resulting information is ordinarily published and shared broadly in the scientific community.
ITAR/USML technical information already in the public domain qualifies for the Public Domain exclusion as long as it meets the requirements stipulated above.
Educational Information Exclusion covers general science, math or engineering commonly taught in courses listed in catalogues and associated teaching laboratories of academic institutions in the U.S. even if the information concerns EAR/CCL controlled commodities or items. ITAR/USML items do not qualify for the Educational Exclusion, as instruction is a “defense service.”
What is a contractual restriction?
Contract clauses that require approval authority over publication or any other dissemination of research results, not including provisions for a short pre-publication review of results, (30-90 days) to remove company/collaborator business proprietary or pre-patentable information. Export controls may impose access, dissemination, and participation restrictions on information and tangible items; "exports" can include both the shipment of materials to another country AND/OR the disclosure of controlled information to foreign nationals who are in the U.S.
What kinds of controls in government-sponsored research compromise the “fundamental research exclusion?”
If the U.S. Government funds research and specific controls are agreed on to protect information resulting from the research, then information resulting from the project will not be considered fundamental research. Such controls are usually contained in contractual clauses. Examples of "specific controls" include requirements for prepublication review by the Government, with right to withhold permission for publication; restrictions on prepublication dissemination of information to non-U.S. citizens or other categories of persons; or restrictions on participation of non-U.S. citizens or other categories of persons in the research.
How do I know if export controls apply to a grant or contract?
Export controls only apply to a grant or contract that involves technology listed in either the ITAR/USML or the EAR/CCL and:
The research does not qualify for an exclusion; or
There are physical exports, or
There is foreign travel with controlled equipment, or travel to a sanctioned country, or
Specific controls are agreed on to protect information resulting from the research (typically found in problematic clauses) including access, publication, or participation restrictions, or
Defense articles or associated technical information are used in the research
What do I do to ensure my research is not subject to export controls?
Researchers have the choice to accept or reject research. For researchers who desire to have unrestricted academic freedom not subject to export controls, it is important to preserve the publicly available and public domain exclusions/protections provided by the government, including that afforded to fundamental research. Without exclusions, EAR or ITAR's licensing requirements may apply to information (technology or technical data) concerning controlled commodities or items. Unless a license exclusion applies, a "deemed export” license is required before information is conveyed (even visually thorough observation) to foreign students, researchers, staff or visitors on campus, and an actual export license would be required before information is conveyed abroad to anyone.
Know your sponsor and ask them if the research will have access, participation, publication/dissemination restrictions
Assure that the research qualifies for an Exclusion and document your findings.
Determine if the technology is listed in the EAR/CCL or the ITAR/USML. Use of USML defense articles do not qualify for an exclusion.
Be cautious of DoD Sponsored research. Ensure the research will qualify for an exclusion by not using defense articles or technical data. Ask the Sponsor if the funding is 6.1 (basic) or 6.2 (applied) or some other type (6.3, 6.4, etc).
Ensure that no defense articles or technical data are involved in the research.
Assure that all technical data about export-controlled commodities qualify as "publicly available" (e.g., publish early and often).
Do not accept publication controls or access/dissemination restrictions hidden in a contract (such as approval requirements for use of foreign nationals). Negotiate such restrictions out of the agreement.
Do not enter into 'secrecy agreements' or otherwise agree to withhold results in research projects conducted at the University or that involve University facilities, students, or staff.
Do not accept proprietary information from another that is marked "Export Controlled." Return to the manufacturer any materials they provide to you about export-controlled equipment that is marked "Confidential." Review any Confidentiality/Non-Disclosure Agreements to insure that you are not assuming the burden of restricting dissemination based on citizenship status or securing licenses.
What do I do if my research is subject to export controls?
Some research will be accepted that does not qualify for an Exclusion, or involves ITAR/USML defense articles and associated technical data. In these instances, the researcher, prior to commencement of the research, must institute Research Security Measures to safeguard the research and ITAR/USML articles and data. These measures are detailed in a Technology Control Plan, and include:
Laboratory Compartmentalization by reconfiguring lab space or work areas
Time blocking by restricting times when export controlled research will take place
Mark equipment and data as “export controlled” for identification purposes
Exclude foreign national participation from the research or obtain worker licenses
Implement physical safeguards to secure tangible items and data
Implement data safeguards to secure data
What are the federal policies relating to ITAR restrictions in fundamental research?
The DoD can have compelling reasons to impose restrictions on research, but the federal policy is to limit restrictions as much as possible. Does your research qualify as “fundamental research” or has the DoD determined that restrictions are necessary? There are two primary federal policies the government has issued which should be used during negotiation with the Sponsor to remove problematic clauses to ensure there are no participation or publication restrictions. These policies do not override the EAR or ITAR nor is the use of defense articles and associated technical data in research permitted by the policies.
National Security Decision Directive 189: White House policy regarding the transfer of scientific, technical, and engineering information qualifying as fundamental research at universities and laboratories that stipulates fundamental research remain unrestricted to the maximum extent possible.
Policy Memo Protecting Exemptions for Fundamental Research at Universities specifies contracts and grants should be structured to allow research to qualify as “fundamental research” and should not be subject to export controls, except on a limited basis. Thus, fundamental research should not involve ITAR/USML defense articles or associated technical data.
Who qualifies as a “bona fide employee” for ITAR purposes?
A bona fide employee per 22 CFR § 125.4(b)(10) is “a full time regular employee” (not a student or visiting scholar) whose:
Permanent abode throughout the period of employment is in the U.S.
Who is not a foreign national from a proscribed country
What do I do if a sponsor begins providing export controlled information or technology to an award previously determined to be fundamental research?
This action is an indication that the direction of the research or some other factor has changed the project in some way to render the export control regulations applicable to this project and that, more than likely, the researcher’s work will now be export controlled. The PI should reexamine the research, checking the ITAR/USML and EAR/CCL lists to see if the research falls under either of these lists. If the PI makes the determination that the research does now fall under export control restrictions, the information/technology must be protected from intentional (or inadvertent) export or "deemed export." The researcher should also notify the assigned Contract Administrator in the Office of Sponsored Programs that the export control status has changed. The PI should re-evaluate the project’s export control determination prior to changes in scope of work or hiring foreign nationals to work on the project, including graduate and undergraduate students.
Does a sponsor request to review a publication prior to distribution destroy the fundamental research exclusion?
No, this kind of review, even when requested, is considered a courtesy rather than a restriction. If the award required "review and approval" it is considered a restriction as this language implies the potential of denying approval to publish or requiring changes to the report, presentation or article prior to publication. A publication approval requirement would destroy the fundamental research exclusion.
What kinds of activities trigger the need for a license?
The following are examples of the types of university activities that may trigger the need for an export license or deemed export license:
International shipments of equipment or data
Research involving export controlled items or information (e.g., defense items or services, satellites, WMD, non-mass market encryption)
Involving foreign nationals in research that does not qualify for an exclusion
Presenting unpublished information not protected under an exclusion
Travel or field work in a sanctioned / embargoed country
Providing financial support to a sanctioned / embargoed country
Shipping or handcarrying internationally any controlled pathogens, toxins, viruses, bacteria, fungi, select agents, or chemicals
Use of any ITAR/USML defense article or associated technical data
How do I apply for a license?
Contact the Office of Export Compliance to submit a license request to the appropriate regulatory body on your behalf. It is important to note that obtaining an export license may take several months and there is no guarantee that the U.S. government will approve a license request.
How can a researcher keep up with export control information that is vague and seems to change?
Export law and its supporting regulations are quite complicated and the international political, military and economic situation changes daily. This is, in turn, is reflected in the commodities, defense articles and associated technical data placed on the EAR/CCL and ITAR/USML as well as the various funding agencies’ procedures in addressing the export control issue. The best advice is to revisit your information and technology periodically relative to the EAR/CCL and ITAR/USML, keep an open dialogue with your funding agency technical counterpart, and bring your questions and concerns to the Expor Control Team (firstname.lastname@example.org)