The consequences of violating export control laws can be quite severe, ranging from loss of research contracts, to monetary penalties, to jail time for the individual violating these regulations. For these reasons, it is important for all personnel involved in sponsored programs activities to be aware of obligations under the export control laws.
Federal regulations promulgated and enforced by:
- the Department of Commerce, Export Administration Regulations (EAR), and
- the Department of State, International Traffic in Arms Regulations (ITAR), prohibit the unlicensed export of specific types of information and technologies for reasons of national security or protection of trade.
Under these regulations, an "export" includes the transfer or communication (either oral or written) of restricted data or technology to a foreign national within the United States - including by means of lectures, seminars, presentations and publications.
If research involves such restricted technologies -- or information -- and if the research in question does not qualify for one of the limited exclusions available under the export regulations -- the EAR and/or ITAR may require the Office of Research and Sponsored Projects(ORSP), and The University Corporation, Sponsored Programs Department (TUC-SP) to obtain a license granting prior approval from State or Commerce before allowing foreign nationals to participate in the research, partnering with a foreign company and/or sharing such information or technologies (verbally or in writing) with foreign nationals. Because of the time involved in applying for and obtaining an export license, the export control laws may, as a practical matter, operate to exclude foreign nationals from participation in research unless export control issues are identified and managed early in the process. Also, depending on the country or end use involved, in some circumstances no export license may be available at all. In such cases, the research activity could be prohibited.
For these reasons, it is important to understand the basics of export control compliance, and for export control issues to be identified as early as possible in the consideration of a research proposal so that any necessary licenses may be obtained prior to the commencement of the research. It is also important to be aware of the limited export control exclusions available to academic research, including but not limited to the Fundamental Research exclusion.
The Principal Investigator, the Office of Research and Sponsored Projects(ORSP), and The University Corporation, Sponsored Programs Department (TUC-SP) must conduct a thorough review of sponsored programs grant award and contract provisions to determine whether and, if so how, a particular project is impacted by those regulations.
Responsibilities of the Principal Investigators
Principal Investigators have the following responsibilities:
- prior to commencing any sponsored program, to review and cooperate with ORSP/TUC-SP to determine whether any technical information or technology involved in their project is subject to the export control law or regulations; and if so, whether any exclusion is available under the export control 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 an export license from the appropriate agency, if required and available
- to ensure that foreign nationals are excluded from access to restricted data or technology until the availability of an exclusion has been determined, or an export license has been obtained.
ORSP/TUC-SP will assist PI's in assessing the application of such regulations, but primary compliance responsibility rests with the principal investigator of the research. Please access the Export Control Checklist for Principal Investigators.
The term export, as used in export control regulations, has an expansive meaning. Generally, an export includes any:
- actual shipment of any covered goods or items;
- the electronic or digital transmission of any covered goods, items or related goods or items;
- any release or disclosure, including verbal disclosures or visual inspections, of any technology, software or technical data to any foreign national; or
- actual use or application of covered technology on behalf of or for the benefit of any foreign entity or person anywhere. The official definition of export under the EAR and ITAR should be consulted when determining whether a specific act constitutes an export. As is evident in many instances, export is defined so as to preclude the participation of foreign graduate students in research that involves covered technology without first obtaining a license from the appropriate government agency.
Export Administration Regulations (EAR)
Title 15, sections 730-774 of the Code of Federal Regulations (CFR) are promulgated and implemented by the Department of Commerce. The EAR regulates the export of goods and services identified on the Commodity Control List (CCL), Title 15 CFR section 774, Supp. 1. The complete text of the EAR and CCL are available online at http://www.gpo.gov/fdsys/browse/collectionCfr.action?collectionCode=CFR.
International Traffic in Arms Regulations (ITAR)
22 CFR sections 120-130, are promulgated and implemented by the Department of State and regulate defense articles and services and related technical data that are identified on the Munitions Control List (MCL), 22 CFR S 121.1. Complete, on-line versions of the ITAR and MCL are available online at: http://www.gpoaccess.gov/cfr/index.html (Gov't Printing Office site) and at the Website for the Federation of American Scientists.
Commodity Jurisdiction Ruling
Where an article is arguably covered by both the EAR and ITAR, a request can be made to the State Department to determine which agency will have jurisdiction over the export of the article.
Fundamental Research as used in the export control regulations, includes basic or applied research in science and/or engineering at an accredited institution of higher learning in the United States where the resulting information is ordinarily published and shared broadly in the scientific community. Fundamental research is distinguished from research which results in information which is restricted for proprietary reasons or pursuant to specific U.S. Government access and dissemination controls. University research will not be deemed to qualify as Fundamental Research if:
- the University or research 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; or
- the research is federally funded and specific access and dissemination controls regarding the resulting information have been accepted by University or the researcher. The citation for the official definition of Fundamental Research under the EAR is 15 CFR S 734.8. The ITAR citation is 22 CFR S 120.11.
Public Domain (22 CFR 120.11) means information that is published and that is generally accessible or available to the public:
- through sales at newsstands and bookstores;
- through subscriptions which are available without restriction to any individual who desires to obtain or purchase the published information;
- through second class mailing privileges granted by the U.S. Government;
- at libraries open to the public or from which the public can obtain documents;
- through patents available at any patent office;
- through unlimited distribution at a conference, meeting, seminar, trade show or exhibition, generally accessible to the public, in the United States;
- 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
- through fundamental research.
Foreign person means any natural person who is not a lawful permanent resident as defined by 8 U.S.C. 1101(a)(20) (http://www.law.cornell.edu/uscode/text/8/1101) or who is not a protected individual as defined by 8 U.S.C. 1324(a)(3) (http://www.law.cornell.edu/uscode/text/8/1324). It also means any foreign corporation, business association, partnership, trust, society or any other entity or group that is not incorporated or organized to do business in the United States, as well as international organizations, foreign governments, and any agency or subdivision of foreign governments (e.g. diplomatic missions).
Federal Agency Websites
- US Government Resource Links for Departments & Agencies with Export Control Responsibilities
- Commerce Department Bureau of Industry and Security (BIS)
- Treasury Department Office of Foreign Assets Control
- OFAC Sanctioned Countries List
US State Department Hotline for inquiries concerning exports under the US Munitions List (202) 663-1282