Table of Contents
- What kinds of controls in a government-sponsored research project would compromise the fundamental research exemption?
- Is a "deemed" export license required in order for foreign nationals to "use" controlled equipment in research projects, classes and teaching labs on campus?
What is an export?
An export is an actual shipment or transmission of items, services, or technical data subject to either the EAR or the ITAR out of the United States, or release of technology, software, or technical data subject to either EAR or ITAR to a foreign national in the United States.
Technology, software, or technical data is "released" for export through:
• visual inspection by foreign national of U.S. origin technology or technical data
• oral exchanges of controlled technical data in the United States or abroad,
• transfer or shipment via any means (physical or electronic) released to a foreign entity
• providing a service, or the application to situations abroad of personal knowledge or technical experience acquired in the United States
That depends on many factors like type of research, participant's nationality, NDAs, acceptance of export controlled information, etc. To help you get an idea, below are a few basic questions that can help identify whether export controls may be triggered. This is not an all inclusive list but does cover some primary areas of concern.
Does your research or activity involve:
• Collaborating with foreign colleagues in foreign countries?
• Hand carrying export controlled items to foreign countries (e.g. laptops, GPS, unpublished technology or technical data)?
• Travel to Cuba, Iran, North Korea, Syria or Sudan?
• Shipping any physical item(s) including software and/or transmission of technical data to a foreign country?
• Participation of a foreign person from Cuba, North Korea, Syria, Sudan or Iran?
• Any documents or technical data marked "Export Controlled"?
• Any agreements with export control language?
• Sponsor pre-approval rights over publications?
• Sponsor placing any restrictions on or reporting of, foreign national participation?
If you answer yes to one or more of the questions above, please contact Sheryl Trexler, Export Compliance Officer, at firstname.lastname@example.org or 268-2841 for assistance and guidance.
The university campus is open to students and faculty from many different countries. Access to restricted or export controlled technology, commodities, defense articles and defense services by an unauthorized foreign person could result in severe criminal or civil penalties for the university and the university employee making the export. Prosecution of an export violation may result in fines of up to $1M and/or a prison sentence of up to 20 years.
In coordination with the Office for Sponsored Projects (OSP), the Export Compliance Officer in the Office of Research Integrity and Compliance (ORIC) and the Principal Investigator should conduct a thorough review of the research project and contract provisions to determine whether and, if so how, a particular research project is impacted by the regulations. The University will assist PIs in assessing the application of such regulations, but primary compliance responsibility rests with the principal investigator of the research.
Principal Investigators have the following responsibilities:
• prior to commencing any research, to review and cooperate with OSP and ORIC to determine whether your research is impacted by the controls or requirements contained within export regulations; and
• to re-evaluate that determination before changing the scope or adding new staff to the project to determine if such changes alter the initial determination; and
• to make export determinations far enough in advance to obtain a license, should one be required
• to understand the severe consequences of non-compliance with export control laws (fine and/or jail)
No. Export controls are U.S. laws that apply to all research and activities conducted at CMU whether funded or not. Export controls may cross all academic fields including but not limited to engineering, psychology, biology, chemistry, decision sciences and education to name a few.
These phrases refer to technical information beyond general and basic marketing materials about a controlled commodity. They 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 transfer of such technical information to foreign nationals inside the U.S.
Any release of technology or source code subject to the EAR to a foreign national in the United States or abroad. Such release is deemed to be an export to the home country or countries of the foreign national. This deemed export rule does not apply to persons lawfully admitted for permanent residence(green card holders) in the United States.
Technical data that is "in the public domain" under ITAR ( 22CFRPart120(a)(5) and Part 120.11(a)) or "publicly available" under EAR (15CFRPart734(b)(3), including "fundamental research", is not subject to deemed export controls. Accordingly, the compliance plan at the University is based largely upon insuring that research results generated at the University meet the standards for "publicly available" thereby avoiding the necessity of securing a license prior to dissemination of information to foreign nationals involved in the research, including graduate students, post doctoral scholars, and visiting scientists. For University-based research, there are three different ways that the technical information may qualify for an exemption from the deemed export regulations.
It is exempt if it:
1. Is published or disseminated (as described at 15CFR734.7 and 22CFR120.11(a)(1) through (7))
2. Arises during, or results from, fundamental research (as described at 15CFR734.8 and 22CFR120.11(a)(8)), or
3. 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.
Information is 'published" (and therefore not subject to export controls) when it becomes generally accessible to the interested public in any form, including:
(1) publication in periodicals, books, print, electronic, or other media available for general distribution (including websites that provide free uncontrolled access) or to a community of persons interested in the subject matter, such as those in a scientific or engineering discipline, either free or at a price that does not exceed the cost of reproduction and distribution; and
(2) readily available at libraries open to the public or at university libraries; and
(3) patents and published patent applications available at any patent office; and
(4) release at an open conference, meeting, seminar, trade show, or other open gathering held in the U.S. (ITAR) or anywhere (EAR). Note, a conference or gathering is "open" if all technically qualified members of the public are eligible to attend and attendees are permitted to take notes or otherwise make a personal record of the proceedings and presentations. A conference is considered open notwithstanding a registration fee reasonably related to cost, and there may be a limit on actual attendance as long as the selection is either 'first come' or selection based on relevant scientific or technical competence.
The export control regulations exempt from licensing requirements technical information (but not controlled items) resulting from "fundamental research." 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. Research conducted by scientists, engineers, or students at a university normally will be considered fundamental research. The fundamental research exclusion permits U.S. universities to allow foreign members of their communities (e.g., students, faculty, and visitors) to participate in fundamental research projects on campus in the U.S. without a deemed export license. Further, technical information resulting from fundamental research may be shared with foreign colleagues abroad and shipped out of the United States without securing a license.
Prepublication review by a sponsor of university research solely to ensure that the publication does not compromise patent rights or inadvertently divulge proprietary information that the sponsor has furnished to the researchers does not change the status of the research as fundamental research, so long as the review causes no more than a temporary delay in publication of the research results. However, if the sponsor will consider as part of its prepublication review whether it wants to hold the research results as trade secrets (even if the voluntary cooperation of the researcher would be needed for the company to do so), then the research would no longer qualify as "fundamental". As used in the export regulations, it is the actual and intended openness of research results that primarily determines whether the research counts as "fundamental" and not subject to the export regulations. University based research is not considered "fundamental research" if the university or its researchers accept (at the request, for example of an industrial sponsor) restrictions on publication of scientific and technical information resulting from the project.
Whether in the U.S. or abroad, the educational exclusions in EAR and ITAR cover instruction in science, math, and engineering taught in courses listed in catalogues and associated teaching laboratories of academic institutions, even if the information concerns controlled commodities or items. Dissertation research must meet the standards for "fundamental research" to qualify as "publicly available."
What kinds of controls in a government-sponsored research project would compromise the fundamental research exemption?
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. 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.
Is a "deemed" export license required in order for foreign nationals to "use" controlled equipment in research projects, classes and teaching labs on campus?
No, actual use of equipment by a foreign national in the U.S. is not controlled by the export regulations. Indeed, inside the United States, 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."
Transfer of commodities and equipment is only controlled by the export regulations when the item is shipped out of the country. Licenses to ship an item outside the United States are required even when the item or equipment is used in or results from fundamental research. If a commodity is controlled under ITAR, then a license is always required before it can be shipped to any country outside the United States, except in limited circumstances such as shipment to a military base overseas. Licenses are also required to import such items. The CMU Export Compliance Officer handles such licenses. In most cases, the University is not fabricating or shipping ITAR controlled items, since these are generally items specifically designed for military purposes (except for faculty involved in space-based research). For commodities controlled under EAR, whether a license is required depends upon the country to which the item is being shipped. Even in cases where license approval from the Department of Commerce is
not required to ship the item to the country, there are administrative requirements (see 15CFRPart 672) and records that must be maintained regarding shipments of EAR controlled items out of the United States. The CMU Export Compliance Officer (ECO) can assist you in determining whether a specific license is required, will secure a license when needed, and can advise you on what records need to be maintained in cases where the item can be shipped without a license.
Penalties for violating U.S. export control laws (EAR, ITAR) or trade sanctions (OFAC) can be severe. The penalty for unlawful exports of items or information controlled under the ITAR is up to two years imprisonment, or a fine of $100,000, or both. The penalty for unlawful export of items or information controlled under the EAR is a fine of up to $1,00,000 or five times the value of the exports, whichever is greater; or, for an individual, imprisonment of up to ten years or a fine of up to $250,000 or both.