Export Control Concerns: Research
The principal investigator (PI) has the best understanding of his or her research and therefore the best information as to whether the particular technology, data, or information involved in that research is or may be covered by export control regulations. The PI is responsible for doing the following:
- The PI should carefully review the information on export controls provided on this web site.
- Before beginning any research, the PI should determine whether any export control issues may be presented.
- If any such issues are identified, or if any question exists, the PI should contact Valerie Howard, Director of Sponsored Programs, for help with determining whether any export control restrictions may apply to the research.
- After work on the project has begun, the PI should notify the Office of Sponsored Programs prior to implementing any changes that may give rise to the application of export controls, such as a change in the scope of work or the addition of new staff to the project.
- If any export control issues are identified at the contract or grant proposal stage by the staff in the Office of Sponsored Programs, the PI should cooperate fully to determine the application of export control regulations to the research.
- If it is determined that export controls apply to the project, the PI must adhere strictly to any applicable restrictions and cooperate fully with the University’s efforts to monitor compliance.
What kinds of projects raise export control questions?
Basically, any research activity may be subject to export controls if it involves the actual export or “deemed” export of any goods, technology, or related technical data that is either 1) “dual use” (commercial in nature with possible military application) or 2) inherently military in nature.
Work in the following areas is considered high risk:
- Space sciences
- Computer Science
- Biomedical research with lasers
- Research with encrypted software
- Research with controlled chemicals, biological agents, and toxins
In addition, any of the following raise export control questions for your project:
- Sponsor restrictions on the participation of foreign nationals in the research
- Sponsor restrictions on the publication or disclosure of the research results
- Indications from the sponsor or others that export-controlled information or technology will be furnished for use in the research
- The physical export of controlled goods or technology is expected
How can export controls affect my research?
“Export” is defined not only as a physical transfer/disclosure of an item outside the US, but also as a transfer/disclosure in any form of a controlled item or information within the US to anyone who is a foreign national (not a US citizen or permanent resident). This is called the “deemed export” rule. As a result, unless an exclusion or exemption is available, the University may be required to obtain prior governmental approval (in the form of an export license) before allowing the participation of foreign national faculty, staff, or students in affected research. In some cases, a license may not be available at all based on the country involved.
In addition to affecting who may participate in the research project on campus, the following are examples of situations in which a license may be required:
- Presentation/discussion of previously unpublished research at conferences and meetings where foreign national scholars may be in attendance
- Research collaborations with foreign nationals and technical exchange programs
- Transfers of research equipment abroad
- Visits to your lab by foreign scholars
If you are doing fundamental research and the results of the research will be in the public domain (see definitions below), you probably will not have any export control issues unless you have a foreign national working with controlled (found on the Commerce Control List or the U.S. Munitions List) proprietary technology in conjunction with your research project.
You may also be working on a project that has controlled proprietary technology or the government has placed access controls on the technology, but you do not have foreign nationals involved in your research.
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: (1) 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 (2) 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 § 734.8. The ITAR citation is 22 CFR § 120.11.
Public Domain (22 CFR 120.11) means information that is published and that is generally accessible or available to the public: (1) through sales at newsstands and bookstores; (2) through subscriptions which are available without restriction to any individual who desires to obtain or purchase the published information; (3) through second class mailing privileges granted by the U.S. Government; (4) at libraries open to the public or from which the public can obtain documents; (5) through patents available at any patent office; (6) through unlimited distribution at a conference, meeting, seminar, trade show or exhibition, generally accessible to the public, in the United States; (7) 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 (8) through fundamental research.