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| What are export controls? |
"Export controls" refer to a group of U.S. laws and regulations that govern the transfer of controlled items or information to foreign nationals or foreign entities. Most applicable to university purposes are the International Traffic in Arms (ITAR– see 22 CFR §§120-130) and the Export Administration Regulations (EAR, see 15 CFR §§ 700-799)
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| Who is responsible for export compliance? |
Each individual is responsible and held accountable for exporting items or information, within or outside of the U.S. Penalties for non-compliance are severe and can result in monetary fines, jail time, as well as termination.
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| What is an export? |
An export occurs whenever any item (i.e., any commodity, software, technology, or equipment) or information is sent from the U.S. to a foreign destination or provided to a foreign national here or abroad. The manner in which the transfer or release of the item or information occurs does not matter. Some examples of export activities include: the shipment of items, written or oral communications, hand-carrying items when traveling, providing access to or visual inspection of equipment or facilities, and providing professional services.
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| What is a deemed export? |
A deemed export refers to the release or transmission of information or technology to foreign nationals in the U.S. or abroad, which includes students, post-docs, faculty, visiting scientists, or training fellows physically present on campus. A deemed export is treated as an export to that person's home country regardless of where the individual is located when the information or technology is obtained.
Technology is considered "released" when it is available to foreign nationals for visual inspection (such as reading technical specifications, plans, blueprints, etc.); when technology is exchanged orally; or when technology is made available by practice or application under the guidance of persons with knowledge of the technology.
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Who is a foreign national?
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A foreign national is any person who is not a lawful citizen or permanent resident of the United States or who has not been granted "protected person" status. The term also applies to foreign entities.
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Are classes or courses subject to export control?
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Information concerning general scientific, mathematical, or engineering principles commonly taught in schools, college, and universities, as listed in course catalogs or part of established teaching laboratory curricula is not subject to export control.
Exceptions to that general rule pertain to high level encryption software, and access to and instruction related to ITAR controlled defense articles as part of a university course if foreign nationals are involved. Such activities may require a license. Even if no foreign nationals are associated with the class, it is important that all faculty, staff and students associated with the class understand the applicable export controls in order to prevent inadvertent violations.
Depending on the topic, workshops and classes other than catalog-listed courses, for example, those developed for a specific audience, interest group, departmental seminar, government agency or private company, may be subject to export controls. It is the responsibility of the instructor or presenter to ensure that their presentation doesn't violate U.S. export controls by disclosing controlled technology of technical data or providing a defense service to a foreign person(s) without the appropriate license or other government approvals. Additionally, there may be instances where students from sanctioned countries may require a license to participate fully in classes where general OFAC licenses do not cover access to required course materials.
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| Are there certain areas of work that are more prone to export controls? |
While it is important that everyone is cognizant of the export control implications associated with their work, the following areas are considered higher risk than most:
- Engineering
- Military, Defense, or Space research
- Computer science
- Biomedical research (Select Agent/Toxin List)
- Research involving encrypted software
- Research involving controlled chemicals, biological agents and toxins
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What type of transactions may trigger an Export Control issue?
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- Shipping equipment to a foreign country
- Collaborating with foreign colleagues in foreign countries
- Hosting foreign visitors on campus
- Exposing foreign nationals to research labs
- Training of students (foreign nationals on research protocols or equipment)
- Working with a foreign country subject to the U.S. embargo
- Sponsor approval rights over a publication
- Sponsor limit on participation of foreign students
- Hiring a foreign national
- Traveling overseas to attend a conference
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What about information that is already in the public domain?
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Information that is already published or is out in the public domain is considered Public information and as provided for under the federal regulations (15 CFR§734.7 and
15CFR§734.10) is NOT subject to export controls. Examples of information in the public domain include:
- Books, newspapers, and pamphlets
- Information presented at conferences, meetings, and seminars open to the public
- Information included in published patents
- Websites freely accessible by the public
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What is "fundamental research" and why do I care?
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Much of the research conducted by scientists, engineers, or students at a university will normally be considered fundamental research. The Fundamental Research Exclusion permits U.S. universities to allow foreign members of their communities (e.g., students, faculty, visitors) to participate in research projects involving export-controlled technical information on campus in the U.S. without a deemed export license. Fundamental research is defined as basic and applied research in science and engineering conducted at an accredited U.S. institution 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, the results of which ordinarily are restricted for proprietary reasons or specific national security reasons.
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What doesn't qualify as fundamental research?
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While research results developed or generated under the Fundamental Research Exclusion are exempt from export controls and can be shared freely with foreign nationals, both here and abroad, items, technology, or software generated as a result of the research are not exempt from export controls. Before shipping or taking any item abroad, and export control determination needs to be done to determine if an export license is required.
If the research instrument or operational data being used falls under the EAR dual-use regulations, then the Fundamental Research Exclusion allows unrestricted access to foreign nationals to such items for research purposes only. Use is limited to that necessary to operate the export controlled equipment (not the technology required for operation, installation, maintenance, repair, refurbishing and overhaul).
However, if the research instrument or operational data falls under ITAR jurisdiction, the Fundamental Research Exclusion or public domain exclusion does not apply and access to foreign nationals is restricted until such time as the requisite license or authorization allowing access or disclosure is obtained.
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Can the Fundamental Research Exclusion be lost?
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Yes. The Fundamental Research Exclusion is lost if a project contains restrictions on participation by foreign nations, has publication restrictions, or otherwise operates to restrict participation in reseach and/or access to and disclosure of results. However, not all publication restrictions negate the Fundmental Research Exclusion. Sponsor requirements to pre-review publication to check for proprietary or patent information, for example, is a temporary delay and does not negate the Fundamental Research Exclusion. Not allowing publication at all would render the project subject to export controls. Additionally, side agreements to delay publication or to allow sponsor pre-approval, or entering into a non-disclosure agreement that limits disclosure of information, can negate the Fundamental Research Exclusion.
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Is it possible for export controls to apply even if there is no publication or citizenship restrictions tied to my research?
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Yes. Even if the information (results or data) generated by fundamental research is not subject to export controls, it's possible the technology or software used to perform the research is subject to control. This can apply to both commercially available technology and software, as well as technology and software developed during or support your fundamental research activities.
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When should I contact the Export Control Office?
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- Whenever you have any export control concerns, questions or issues.
- Equipment, software, samples, or technical data will be temporarily or permanently exported from the U.S.
- You will be working with prototypes, software, samples or technical data; particularly if supplied by the sponsor or third party.
- ITAR controlled equipment, software, samples or technical data may be used or generated in the conduct of the proposed activity.
- Any work or communication with an individual from or entities affiliated with North Korea, Iran, Cuba, Syria, or Sudan.
- Any party, such as an individual, company or other organization, to the proposal, award or other agreements a foreign military or a party acting on behalf of a foreign military.
- A sponsor, collaborator, or other party asks you to exclude or restrict the participation of foreign nationals; tells you that the information, materials, software, equipment, etc. are subject to export controls; requests you not publish or discuss your results without prior approval. We are happy to review agreements with you if you have questions about restrictions.
- When the results of research or development have an obvious military use or purpose.
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What should I do if I am planning to travel to a foreign country for university business?
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All university personnel traveling internationally on university business should complete and submit the Export Control International Travel Form, in addition to any other documentation required at the campus level. The Export Control International Travel Form should be submitted well in advance of the planned trip to allow adequate time to address any export control issues.
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Can I take my university owned laptop, PDA, or other electronic device on foreign trips?
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Electronic devices, such as commercially available laptop computers, PDAs, smart phones, etc., may be taken out of the U.S. for use during university approved trips. Such temporary exports are permitted through an exception to the Export Administration Regulations. The traveler should complete a temporary export certification (TMP) prior to travel and carry a copy of the TMP certification with them on the trip. The TMP exception is not available for trips to Iran, Sudan, Syria, North Korea or Cuba. A copy of the TMP certification template can be accessed here.
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How long does it take to get an export license?
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A license is not required to send most items to most countries. However, best practice would be to consult with the export control office prior to exporting any items or information that may be subject to export controls. If a license is necessary, it may take days or months to obtain depending upon the particulars of the export so be sure to allow sufficient lead time. Remember, applying any information, including publicly available information, to assist a foreign entity in the accomplishment of a defense purpose is a violation of export controls.
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What happens if I violate the export control laws?
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The consequences for noncompliance can be quite severe and may apply to both the university and the researcher:
ITAR:
- Criminal penalties: up to $1 million per violation and up to 10 years in prison.
- Civil penalties: seizure and forfeiture of articles, revocation of exporting privileges, fines of up to $500,000 per violation.
EAR:
- Criminal penalties: $50,000 to $1 million or five times the value of the export, whichever is greater, per violation, up to 10 years in prison.
- Civil penalties: loss of export privileges, fines $10,000 to $120,000 per violation.
OFAC:
- Criminal penalties: fines ranging from $50,000 to $10 million and imprisonment ranging from 10 to 30 years for willful violations.
- Civil penalties: from $11,000 to $1 million for each violation.
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