Export Control Impact

Fundamental Research

The vast majority of research done at the university is shielded from export controls under the Fundamental Research Exclusion. This means that when University research meets this criteria, information (but not materials or technology) resulting from that research may be disclosed to foreign nationals and that such disclosures are not subject to export control restrictions. However, some activities or research fall outside this protection. These types of activities can include the following and may require a license or a license exception:

In summary, University research will not qualify for the Fundamental Research Exclusion if:

• research by any foreign nationals (faculty, students, staff, collaborators, etc.) that involves travel to international conferences to present unpublished research results especially if any of the foreign nationals are from embargoed or sanctioned countries
• research activities that take place outside the U.S. (e.g., field work outside the U.S.)
• research when the university or the researcher agrees to allow any restrictions on the publication, dissemination, or access to the research by foreign nationals
• research in export restricted science and engineering areas– examples include:
  • military or defense articles and services
  • high performance computing
  • dual-use technologies (technologies with both a military and commercial application)
  • encryption technology
  • missiles & missile technology
  • chemical/biological weapons
  • nuclear technology
  • select agents & toxins
  • space technology & satellites
  • medical lasers
  • activities involving the use of export controlled information, items, or technology received from outside the university and all research involving the use of export restricted technology
  • providing professional consulting services overseas (to embargoed or sanctioned countries is, in most cases, strictly prohibited)

In summary, University research will not qualify for the Fundamental Research Exclusion if:

• the University or investigator accepts any restrictions on the publication of the information resulting from the research, other than limited prepublication review by research sponsors to ensure that proprietary information is not inadvertently disclosed in publication or to ensure that publication will not compromise the patent rights of the sponsor; or
• the research is federally funded and specific access and dissemination controls regarding the resulting information have been accepted by the University or investigator

It is important to remember that the fundamental research exclusion applies only to information and it does not apply to a sponsor's existing proprietary information when some or all of that information is required to be held confidential.

In addition, the exclusion may not apply to information relating to export-controlled equipment used in research projects and classes. An export control license may be required in a fundamental research project before information about the use of controlled technology can be shared with foreign nationals working on the project.

Helpful links:

• Recommended steps for researchers
• Guidance for Sponsored Research Proposals

Technology Control Plans (TCPs)

At USA, some researchers perform research that involves export controlled technical data, information, materials, equipment, and software. Even if foreign nationals are not involved in such projects, the export-controlled information and items must still be secured, A Technology Control Plan (TCP) ensures that technical information, technical data or the use of controlled equipment which is not specifically exempted as Fundamental Research or Educational Information by EAR or ITAR is not transferred to foreign nationals (including employees, visitors or students) unless approved by a government license. A TCP also ensures the research team is informed, aware, and understands their compliance obligations and responsibilities by formalizing university procedures to safeguard export-controlled data, information, equipment, and software.

The USA Office of Research Compliance and Assurance (ORCA) is responsible for evaluating a proposed project for the purpose of determining the specific security measures needed to prevent the unauthorized export of restricted technical data, technology or information, as required by export control laws and university policy. If an export license is needed and has been obtained for a particular foreign national to have access to project materials and information, or a license exemption is applicable, the foreign national is authorized for that project only.

The Principal Investigator and staff involved in the conduct of the project are responsible for adhering to the TCP, and the ORCA is responsible for overseeing their compliance with the TCP. The ORCA also has the responsibility to ensure that all project personnel will be trained and informed of their responsibilities and the required security procedures before the project starts.

A TCP should contain, at a minimum, the following essential elements:

• Institutional commitment to export compliance
• Physical security plan
• Information security plan
• Personnel screening procedures
• Training and awareness program
• Self-evaluation program and audits

 

Although each project is unique, there are elements common to every project. A best practice is to use a TCP Template that incorporates the above elements, which can then be modified to fit the particular research project or situation. For additional information, see also Technology Control Plans Best Practices (PDF).

Export control regulations do not apply to most information released in academic catalog-listed courses or in teaching labs associated with those courses. This exclusion is based on the recognition in ITAR that "information concerning general scientific, mathematical, or engineering principles commonly taught in schools, colleges, and universities, or information in

the public domain" should not be subject to export control restrictions. The EAR provides that educational information released by instruction in catalog courses and associated teaching laboratories of academic institutions (except for certain encryption technology) is not subject to the EAR.

However, there are some topics within courses that are subject to the EAR, so it is important to recognize the following topics that are sensitive and in some cases subject to Export Controls:

• Encryption software (possibly in engineering or computer courses)
• Topics of discussion in courses within the scope of ITAR (such as astro/aero physics, or nuclear science) can possibly meet the definition of “defense service” which is subject to control.
• Sensitive Nuclear Technology (possibly in engineering, science, or physics courses).

It is important to note that follow-on-questions and discussion can go beyond public information and into practical implementation, which requires specific authorization. 

Online Education

Export Controls may also affect some online education. Open courseware, in which the entire content of a course is freely available, is considered as public information and informational material and is therefore excluded from EAR and ITAR controls, and is generally authorized under OFAC (no specific authorization required).   Courses that are actively delivered, however, in which forums for interaction among students and teachers are provided, homework is assigned and evaluated, quizzes and tests are administered and graded, and evidence of successful completion is considered as providing a service, which is not generally authorized, and requires a specific authorization for students in or ordinarily resident in Cuba, Iran, and Sudan, under OFAC’s sanctions.

Public Domain/Publicly Available Information Exclusion

Information that is published and generally available to the public, as well as publicly available technology and software is outside the scope of export control regulations. This exclusion does not apply to encrypted software, to information if there is reason to believe it may be used for weapons of mass destruction, or where the U.S. government has imposed access or dissemination controls as a condition of funding.

Exemption for Disclosures to Bona Fide Full-time Employees

Export control regulations exempt disclosures of unclassified technical data in the U.S. by U.S. universities to foreign nationals where This exemption is likely to be less available than the three exclusions discussed above. In addition, most graduate students are not regular full-time University employees and disclosures to them will not qualify for this exemption.

 

Processing of visas, passports, and any travel outside the U.S must be pre-approved in order to ensure there are no restrictions on travel to certain destinations. Care must be taken when traveling to any international destination that no controlled items, information or technology is transported during travel. These items include but are not limited to advanced GPS units, scientific equipment, or controlled, proprietary or unpublished data in any format. These items may require an export license depending on your travel destination. Laptop computers, web-enabled cell phones, and other electronics containing encryption hardware or software and/or proprietary software can require an export license to certain destinations.

Travel to or through certain sanctioned or embargoed countries for purposes of teaching, learning, performing research or presenting research results requires specialized review and consideration. Any person traveling to a country with a trade sanction should be aware that US federal restrictions apply and that generally there are significant limitations to activities, transport of technology, use of US funds, etc. In general, an export license will be required to take any items to or through any U.S. sanctioned country (e.g., Iran, Syria, Cuba, Sudan, and North Korea).

At USA, all international travel by faculty and staff should be registered with the Office of International Education. Faculty and staff participating in international travel will complete a form as well as a permission to travel process required by USA. For additional information and links to international travel and registration, please see International Travel for Faculty & Staff, Best Practices for Academics Traveling Overseas (pdf), and the FBI Business Travel Brochure.

 

University activities that involve the international payment of funds including the hiring of foreign nationals must be screened via a Restricted Parties Screening, conducted by Office of Research Compliance and Assurance (ORCA) personnel, to ensure that the university is not inadvertently providing financial assistance to an individual on a restricted or sanctioned entity list. In addition to hiring foreign persons, examples of this type of assistance include providing support via a subcontract to a non-U.S. university or providing payments to research subjects in other countries.

If you or your department are considering any activities that require payment of funds of foreign nationals, contact the OCRA first.