Whether sponsored by a governmental agency or not, Export Control laws apply to all research conducted at the university even if it is internally funded. Therefore, it is necessary that researchers be aware of these laws, particularly before initiating projects that involve the participation of foreign nationals. (Some examples of how research could be impacted by these laws are described in COGR publication: Export Controls and Universities: Information and Case Studies.) Failure to comply with these regulations could result in severe penalties ranging from loss of research contracts to monetary penalties to jail time for the individual violating these regulations.
Fundamental Research Exclusion
Although Export Controls regulations seemingly cover virtually all fields of science and appear daunting to navigate, certain exceptions or exclusions may remove the controlled information from being subject to the export control regulations. Both EAR and ITAR provide that research results that fall within the definition of Fundamental Research are excluded from the requirements of export control laws and regulations. This Fundamental Research Exclusion (FRE) permits U.S. universities to allow foreign persons to participate in research projects involving export-controlled information at accredited institutions of higher learning in the United States without the need for a license. (Note: One major difference between ITAR and EAR is that in the case of ITAR the research must be performed at accredited institutions of higher learning in the United States. This is not the case for EAR, the Fundamental Research may occur at other facilities.)
The term Fundamental Research is defined as "basic and applied research in science and engineering, the results of which ordinarily are published and shared broadly within the scientific community, as distinguished from proprietary research and from industrial development, design, production, and product utilization, the results of which ordinarily are restricted for proprietary or national security reasons1."
It is important to note that under both EAR and ITAR, research performed at universities will not qualify as Fundamental Research and fall out of the FRE’s “safe harbor” if the university (or the PI) accepts restrictions on publication of scientific and technical information resulting from the project, or restrictions on participation of non-US citizens in the research.
Additionally, the FRE generally does not permit the transfer of export-controlled materials or items abroad, even to research collaborators.
Bona Fide/Full-Time Employee Exemption
Under another specific exemption, ITAR allows a university to disclose unclassified technical data in the U.S. to a foreign person who is the university’s bona fide and fulltime regular employee. The exemption is only available if:
• pursuant to § ITAR 126.1 the employee is not a national of an embargoed country;
• the employee has a permanent address in the U.S. while employed at the university;
• the university informs the individual in writing not to share covered technical data with any other foreign nationals without prior written government approval;
• the university documents the disclosure of technical data under the exemption
Note that “full-time bona fide employee” requirement will preclude foreign students and postdoctoral researchers from qualifying under this exemption. Generally, a H1B visa would be required. Most students have F1 visas, and to a lesser extent J1 visas.
Export Control Analysis
An export control analysis should be performed when a PI submits a proposal, receives an award, or changes the scope of an existing project.
A. Initial Review
The Office of University Research will perform the initial review by completing the Export Control Checklist in Appendix A. If the initial review flags a possible export control issue, the project will be referred to the university’s Export Control Officer for final review.
B. Final Review
If the initial review flags potential export control issues the project will be referred to the Export Control Officer for final review. Upon completing the final review the Export Control Officer will advise the PI and Research Contracts Administrator concerning the export controls which apply, and any relevant restrictions or requirements pursuant to ITAR and EAR.
Technology Control Plan and/or Licenses
If the Export Control Officer determines that a project is subject to export controls, Office of University Research and Facility Security Officer with assistance of Empowered Official will work with the PI to develop and implement a Technology Control Plan (TCP) to secure the controlled technology from access from unlicensed non-U.S. citizens.
If a project is export controlled and the PI requests the participation of a foreign person, the PI will make such request in writing to Vice President for Research & Development for approval. The written request should explain the reasons behind the request. (Note: Each foreign student must be specifically licensed for each controlled project.) Upon approval by the Vice President for Research & Development, the University’s Empowered Official will apply for an export license from the appropriate agency to allow the disclosure of information to foreign students and researchers. Upon certification by the Empowered Official that all required licenses have been obtained and confirmation from the PI that the activity shall be conducted in compliance with Technology Control Plan, approval will be granted.
1National Security Directive 189 (“NSDD”), National Policy on the Transfer of Scientific and Engineering Information on Sept 21, 1985.