U.S. Export controls comprise a complex and dynamic set of U.S. trade regulations aimed at safeguarding U.S. national security and furthering U.S. foreign policy and economic objectives. This is accomplished by managing exports of controlled articles and information in order to limit access by some foreign persons and sanctioned parties.
NH-INBRE expects all partner institutions to fully comply with all applicable laws, regulations and contractual requirements related to export controls. This includes, but is not limited to, the Export Administration Regulations (EAR) administered by the Department of Commerce, the International Traffic in Arms Regulations (ITAR), administered by the Department of State and the Foreign Assets Control Regulations (FACR) administered by the Department of the Treasury.
Some key areas impacted by export regulations:
Fortunately, the vast majority of research undertaken by NH-INBRE partners will qualify as fundamental research which is defined as basic and applied research, the results of which are ordinarily published and which is not subject to any publication or participation restrictions. Export controls do not apply to information arising during or resulting from fundamental research conducted within the United States. This is known as the fundamental research exception.
It is important to note that agreements to limit publication of research results or access to the research by foreign persons will destroy the fundamental research exception. Some areas of research are more likely to involve controlled technology and sponsor requests to restrict publication of and access to the research. Among these areas are Material Science, Electrical Engineering, Supercomputing, Encryption, Nuclear Science, Chemical Engineering, and Microbiology, but this is not an exclusive list.
Similarly, certain funding sources are more likely to impose restrictions on publications or foreign party participation due to the subject matter, often related to national security, of the research being funded. Some examples include DOD components such as ONR and AFRL, NASA, DOE, DHS, FFRDCS such as ORNL or JPL and private defense contractors. However, it is important to be alert to the possibility of contractual limitations in any contract as even NIH, NSF and industry sponsors other than defense contractors may impose these limitations.
Please contact your institution’s Office of Sponsored Programs for assistance.
Tangible shipments of export controlled commodities are a primary focus in industry but are sometime overlooked by universities. There are several important facts to consider prior to shipping commodities, software and technology out of the United States.
First, it is essential to consider who, what end-user, is receiving the shipment. Under the EAR, ITAR, and FACR, there are several lists of individuals and companies to whom exports of any type may be forbidden or to whom exports may require a license from the agency maintaining the list which limits exports to the person. It is very important to review these lists before shipping anything abroad to ensure full compliance with the regulations.
Second, it is necessary to consider the ultimate destination of the shipment. The United States maintains embargoes against several countries as part of its foreign policy goals. Sometimes these are comprehensive embargoes and exports to these several countries are generally prohibited. Alternatively, the embargoes may be limited and exports may be permissible under a license.
Third, it is essential to consider what is being shipped and to take the time to review the United States Munitions List (USML) and the Commerce Control List (CCL) in order to determine whether the item intended for shipment is controlled. If the item is not controlled, person and place may still limit the export. If the item is controlled, person and place will again determine whether export is prohibited or whether a license or exception may be available.
Please contact your institution’s Office of Procurement for assistance.
Whether the collaboration involves a U.S. person traveling to a foreign country or a foreign person coming to the United States, export controls may have an impact.
When traveling abroad both faculty and students must be aware of the commodities, software or technology they intend to take with them. For example, encryption software and items employing it are controlled, even if intended for personal use. A careful assessment of the software or item will often reveal the availability of an exception to licensing but the exception and a rationale for the applicability of the exception must be documented.
In cases where the individual may be working on an export controlled project in the United States a careful review is in order to prevent the inadvertent export of technology from that project, for example by having it downloaded to a laptop or stick drive.
Invitations to present at international conferences can also present a challenge. For presentations involving potentially export controlled technology the public availability of both the conference and the information to be presented.
Visiting academics and students may also require a license if they will visit certain labs or be involved in research developing or using export controlled commodities, software or technology. Additionally, the nature and source of funding supporting the visitor may require further examination and may trigger the need for a license.
When should faculty, students and staff contact the Office of Export Controls for assistance?
Before agreeing to any publication restrictions or participation restrictions on research projects as these will destroy the availability of the fundamental research exclusion from export controls.
Before shipping commodities, software or technology outside of the United States as these items or the end-user or end-use may be controlled and subject to licensing under the regulations.
Before sharing export controlled commodities, software or technology with a foreign person in the United States. This is deemed to be an export to that person’s country of citizenship and a license may be required.
Before making encrypted source code or object code publicly available through posting to the internet or publicly available venue
Before beginning research abroad, particularly in sanctioned or embargoed countries, such as Cuba, Iran, Syria, Sudan and North Korea. OFAC places strict controls on the activities that a U.S. person may engage in within these countries and the manner and amount of money which may be spent.
Before acquiring through purchasing, borrowing, leasing, loaning, even temporarily, controlled items and related technology which may require a license before providing it to a foreign person.
Before sharing with a foreign person any commodities, software or technology covered by an NDA as this would no longer be publicly available and, if export controlled, may require a license.