Export Control - Fequently Asked Questions
- What are Export Controls?
- What is an export?
- How do I know if Export Controls apply to a grant or contract?
- What happens if my project is subject to Export Control?
- What are the exceptions to Export Control?
- What is the “fundamental research exception”?
- What happens if my project can’t be conducted under the fundamental research exception? What do I do now?
- What happens if I pursue my project without first obtaining an export license?
- What are examples of export control research areas
1. What are Export Controls?
Export Controls are federal laws that restrict the flow of certain materials, devices and technical information related to such materials and devices to foreign countries and to foreign nationals residing in the U.S. There are three sets of laws of particular concern:
- The International Traffic in Arms Regulations. ITAR controls defense related technologies and dual use technologies.
- The Export Administration Regulations. The EAR regulations are designed to protect U.S. commercial interests, and govern a broad range of technologies.
- U.S. embargoes managed by the Office of Foreign Assets Control. These embargoes limit shipments to, and interaction with, certain embargoed countries (e.g., Cuba , Iran , Libya , North Korea , Sudan and Syria , though this list is not exclusive) .
2. What is an export?
Under the export control regulations, there are two ways to make an export.
- The first and most obvious is to transport--mail, send, transmit, carry, etc.--equipment, information, technology, data, software, or other materials to somewhere outside of the United States.
- The second is to allow access to such materials by an individual who is physically in the United States, but who is neither a U.S. citizen nor an immigrant here under a valid green card. This is referred to as a “deemed export.” Moreover, it is important to note that deemed exports can also include so-called “technical assistance,” i.e., training a foreigner on the use of technologies that are subject to export control.
3. How do I know if Export Controls apply to a grant/contract?
It depends on both the technologies (i.e., the work scope) and the countries (either foreign destinations or foreign personnel) involved.
ITAR applies if the subject of the research appears on the ITAR munitions list. And under ITAR, the country of destination is irrelevant; export of a controlled item to any foreign country or any foreign national would be in violation of the law.
The application of EAR is more complicated. It depends on both the technology involved and the country of destination. So, for example, you might have a technology that can be exported to Canada but not Venezuela. And in most cases, technologies are very precisely defined, and the definitions also affect the applicability of the law. So, for example, telecommunications equipment involving lasers that transmit at wavelengths above 1750 nm may be controlled, while similar equipment using a smaller wavelength may not be.
OFAC applies to any interaction with country prohibited by US embargo.
4. What happens if my project is subject to Export Controls?
There are a number of things that may happen if your project is subject to one or more Export Controls.
- First, the OVPR will attempt to craft an award document that will allow the work to be performed at WMU to remain within the parameters of the “fundamental research exception.” The fundamental research exception is discussed in detail below.
- If the project cannot remain within the fundamental research exception, it will be necessary to secure an export control license form the appropriate government agency before proceeding with the work. The licensing process is also discussed below.
- If the fundamental research exception does not apply, and a license cannot be secured, the project will either need to be revised to bring it under the fundamental research exception or secure the license, or abandoned.
5. What are the exceptions to Export Control?
- Public Domain Information
Under both ITAR and EAR regulations, some information is automatically excluded from Export Controls. The exclusion is primarily for information (ITAR), including some forms of software (EAR) that are in the public domain and publicly accessible through books, periodicals (hardcopy or electronic) and generally distributed media, unrestricted subscriptions and websites that are free (or available for less than production/distribution costs), libraries, patents or open (published) patent applications, release at open conferences, seminars and trade shows.
- Fundamental Research
Research as defined below has exclusions applying to information (ITAR) and software (EAR) that result
from basic and applied science and engineering research conducted at an accredited institution of higher
education located in the U.S., must be ordinarily published and shared broadly within the scientific community, is not restricted for proprietary reasons or specific national security reasons (EAR) or subject to access and dissemination controls (ITAR).
- Educational Information Exclusion
Essentially both EAR and ITAR regulations exclude export controls for instructional content of curriculums for all students, including foreign nationals, that exist in general science, math and engineering principles commonly taught through courses, and associated teaching laboratories. Further, the courses must be listed in course catalogs of colleges and universities (ITAR/EAR).
6. What is the “fundamental research exception?”
Both ITAR and EAR include language that exempts “fundamental research” from export control. Using ITAR as an example, while the regulations restrict the flow of technical data they also stipulate (Sec 120.10) that the “definition [of technical data] does not include information concerning general scientific, mathematical or engineering principles commonly taught in schools, colleges and universities or information in the public domain as defined in Sec. 120.11.”
Section 120.11, then, defines information in the public domain to include fundamental research, which “is defined to mean basic and applied research in science and engineering where the resulting information is ordinarily published and shared broadly within the scientific community.”
But, per Section 120.11, Subsections 7(i) and 7(ii), our work is no longer considered “fundamental research” if a) we accept restrictions on the publication or dissemination of scientific or technical data, or b) the work is funded by the U.S. government and either access or dissemination controls are applied. Additionally, recall that the fundamental research exception is extracted from the provisions that exempt from “technical data” information that is in the public domain. Accordingly, the fundamental research exception applies only to data/information. The transport of equipment and other materials can’t be exempted under the fundamental research exception.
However, as long as a) we aren’t exporting the actual technologies, b) we can freely present/publish the research, and c) in the case of federally funded work, there are no access restrictions, therefore, our work falls within the fundamental research exemption and we don’t have to worry about export controls.
7. What happens if my project can’t be conducted under the fundamental research exception? What do I do now?
You’re going to need to put into place restrictions of personnel, visitors, travel and publication.
8. What happens if I pursue my project without first obtaining an export license?
Violation of export control laws is a criminal matter. The penalties vary depending on the circumstances (notably, whether it was a “knowing” or “willful” violation), but the penalties for lesser violations include up to five years in jail and/or fines equal to $50,000 or five times the value of the export, whichever is higher. More egregious violations can double the jail time and quadruple the fines.
It is also important to emphasize that export control violations can be assigned to the individual. You cannot assume that the government’s interest in an export control problem will begin and end with WMU. If you conduct a project that violates the export control laws without first getting an export license, there is a very good chance that you, as an individual, will face fines and jail time. At the very least, you are looking at legal fees for a defense.
Export controls are frequently, but not exclusively, associated with items, information or software within the following general areas:
- Chemical, Biotechnology and Biomedical Engineering
- Materials Technology
- Remote Sensing, Imaging and Reconnaissance
- Navigation, Avionics and Flight Control
- Propulsion System and Unmanned Air Vehicle Subsystems
- Nuclear Technology
- Sensors and Sensor Technology
- Advanced Computer/Microelectronic Technology
- Information Security/Encryption
- Laser and Directed Energy Systems
- Rocket Systems
- Marine Technology
Email our research compliance coordinator.