Quick Overview - Export Basics
Although federal laws restricting exports of goods and technology have been in existence since the 1940s, attention to export controls has increased due to post 9/11 heightened concerns about homeland security, proliferation of weapons of mass destruction, terrorism, and leaks of technology to U.S. economic competitors. United States export controls exist to protect the national security and foreign policy interests of this country. Export controls govern the shipment, transmission, or transfer of certain sensitive items, information or software to foreign persons or entities. Where applicable, they may require authorization from the US Government in the form of an export license. Most of the items, information or software that CMU ships or shares with its colleagues and research partners is not of a nature that would be restricted for these purposes, nor are they destined for countries or individuals subject to US embargoes or sanctions.
Export controls present unique challenges to universities because they require balancing concerns about national security and U.S. economic vitality with traditional concepts of unrestricted academic freedom and publication and dissemination of research findings and results. As Carnegie Mellon University’s tradition of academic freedom and openness in research may bring it into conflict with these regulations, it is important that all faculty and staff involved in research on our campus understand the regulations and implementation requirements. Such knowledge is critical, both to avoiding situations that trigger these regulations and complying with those that are unavoidable. The federal government imposes severe criminal and civil fines for noncompliance.
Export laws and regulations promulgated by the U.S. Department of Commerce, the U.S. Department of State and the U.S. Treasury Department are the bases for restricting use of and access to controlled information, goods, and technology for reasons of national security or protection of trade. In general, the export control regulations cover four main types of University activities: transfers of controlled information, including technical data, to persons and entities outside the United States; shipment of controlled physical items, such as scientific equipment, that require export licenses from the United States to a foreign country verbal, written, electronic, or visual disclosures of controlled scientific and technical information related to export controlled items to foreign nationals in the United States and abroad, (everyone other than a U.S. citizen, a permanent resident alien, and certain ‘protected individuals' (refugees and those with asylum), including any company not incorporated in the United States. Such a transfer is termed a "deemed export" and is regulated because the transfer is "deemed" to be to the country where the person is a resident or a citizen; travel to certain sanctioned or embargoed countries for purposes of teaching or performing research.
Fortunately for universities, these regulations provide that publicly available, fundamental research results are excluded from the regulatory requirements for approvals or licenses. Both the EAR and ITAR define fundamental research in a similar manner; it is "basic and applied research in science and engineering where the resulting information is ordinarily published and shared broadly within the scientific community, as distinguished from research the results of which are restricted for proprietary reasons or specific U.S. Government access and dissemination controls."
The right to publish and disseminate the results of university research is a keystone principle of Carnegie Mellon University. Fortunately, both EAR and ITAR recognize and protect the open, academic environment. Accordingly, no restrictions on foreign nationals' access to or participation in the design, fabrication, or scientific results generated in university-conducted fundamental research is required, as long as there is open access to the technical data or technology, and the results are shared broadly within the scientific community or made publicly available.
Tangible items, however, do not fall under the fundamental research exemption. In cases where a CMU researcher is shipping or taking an item outside the U.S., that item must be checked against the EAR, ITAR and OFAC lists referenced above to see whether a license is required. For help with this process and with obtaining an export license if necessary, contact the Export Compliance Office at 412-268-2841 or firstname.lastname@example.org.
Foreign Nationals are persons who are not U.S. citizens, aliens who are "Lawful Permanent Residents" (Green Card), (8 USC 1101(a)(20)) or other "Protected Individuals" under the Immigration and Naturaliation Act (8 USC 1324b(a)(3)) designated an asylee, refugee, or a temporary resident under amnesty provisions. A foreign national also means any foreign corporation, business association, partnership or any other entity or group that is not incorporated to do business in the U.S. Under ITAR, the term "foreign person" is used, but has the same definition as "foreign national" herein.
Fundamental Research is defined as basic and applied 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, as distinguished from research the results of which are stricted for proprietary reasons or specific U.S. Government access and dissemination controls. The products of fundamental research are not subject to export license requirements or other government approval.
Publication or Dissemination Restrictions include acceptance in research and development of any prohibition or approval authority over publication or any other dissemination of research results, excepting, sponsor or collaborator may include provisions for review of results, with a short (30-90 day) review period to remove some company/collaborator business proprietary or pre-patentable information.
Publicly Available Information is technology and software that is published and generally accessible to the public through unlimited and unrestricted distribution and is either free or available at a price that does not exceed the cost of reproductions and distribution, is readily available at libraries, available through any patent office, or released at an open conference, seminar, or trade show.
Restricted Parties are individuals and entities with whom the university and its employees may be prohibited by law, or require a license or other government approval, to export to or engage in controlled transactions. These include the Denied Parties List, Unverified List (Department of Commerce), the Debarred Parties Lists (Department of State), and the Specially Designated Nationals and Blocked Persons List (Department of Treasury).
Restricted Research is defined as university research, development, or testing subject to publication restrictions, (ii) access and dissemination controls, (iii) federally funded research with contract specific national security restrictions, (iv) accepting third party controlled items or information, or (v) providing access to, or defense services on, a defense article. Restricted research is subject to the EAR and ITAR regulations, and a license or other government approval may be required for foreign national participation.
Sanctioned Countries are countries designated by OFAC as having limited or comprehensive trade sanctions imposed by the U.S. for reasons of anti-terrorism, non-proliferation, narcotics trafficking, or other reasons.