Export Control Considerations for International Research
Adapted with permission from University of Wisconsin-Madison
Export Control and Activities Requiring Oversight
There are a number of research activities that may have potential export control implications:
- International travel
- Shipping items abroad
- Working with foreign collaborators, whether in the United States or overseas
- Working with controlled items and information
- Working with a grant or other contract that has an export control clause, publication restriction or personnel restriction
- Hiring workers
- Doing any work with a person, business or organization that is a citizen of or headquartered in Iran, Syria, Sudan, North Korea, Cuba or the Crimea.
If you have questions about whether an activity falls within export control regulations, please contact the Office of Compliance, Risk, and Integrity.
What is an Export?
Exports may include any of the following:
- Shipping an item overseas
- Sending an e-mail to a foreign person
- Making a phone call or sending a fax to a foreign person
- Any electronic transfer of information abroad
- Deemed exports
Deemed exports occur any time a foreign person gains access to information, data or technology in the United States. At that point it is deemed to have been exported to their country of citizenship.
Examples of deemed exports include:
- Foreign persons working in a lab
- Sharing information with a foreign person in the United States regarding a project
- Taking foreign persons on a tour of a lab with controlled equipment
- Speaking with foreign collaborators at conferences being held in the United States
A foreign person is anyone who is NOT:
- A U.S. citizen
- A permanent resident/green card holder
- Someone granted asylum, refugee status or amnesty by the government
- A US company, university, organization or government division
Please remember, green card holders are U.S. persons, whereas persons here on work or student visas are Foreign Persons. Additionally, foreign students of any level are counted as foreign persons for export control purposes.
Export Control Regulations
International Traffic in Arms Regulations (ITAR) – The ITAR are overseen by the Department of State. They regulate military items and information. Items regulated under the ITAR can be found in the U.S. Munitions List (22 CFR 121) and include naval vessels, ordnances, military jets, tanks, their software, components and accessories.
Export Administration Regulations (EAR)– The EAR are overseen by the Department of Commerce. They regulate dual use items and information. Dual use items are commercial items that could be used for military, terrorism, nuclear proliferation or similar purposes. The items regulated under the EAR can be found in the Commerce Control List (15 CFR 774 – Supplement No. 1), and include items such as lasers, telecomm equipment, IR sensors, computers, electronic test equipment, encryption, their software, components and accessories.
Foreign Asset Control Regulations (FACR) – The FACR are overseen by the Office of Foreign Asset Controls (OFAC) in the Department of Treasury. They regulate assets, persons and organizations. These regulations are not concerned so much with what is being shipped, but rather where and to whom it is being shipped.
This is a list of the embargoed and restricted countries per the United State’s government and trigger a higher level of risk with activities. Current E:1/E:2 countries include Cuba, Iran, North Korea, and Syria.
While the regulations above are the key Export Control regulations, other government agencies, such as the Departments of Defense and Energy have additional regulations that may impact specific research projects.
- BIS (Bureau of Industry Security) – The agency in the U.S. Department of Commerce that manages and enforces the EAR.
- CCL (Commerce Control List) – The list of items export controlled under the EAR. The items in this list are typically Dual Use items.
- Commodity Classification – A determination submitted to the Commerce Department to determine under which ECCN a particular item, technology or software is controlled.
- Commodity Jurisdiction – A submission to the State Department to determine whether a particular item, technology or software falls under the control of the ITAR or the EAR.
- DDTC (Directorate of Defense Trade Controls) – The agency in the U.S. Department of State that manages and enforces the ITAR.
- Deemed Export – The transfer of technical information, data or software to a foreign person within the United States. It is deemed to be an export to that person’s home country.
- Dual Use – Commercial items with potential military or national security applications.
- E:1/E:2 Countries – Countries that are the most highly restricted/embargoed by the U.S. government due to terrorism or national security reasons. As of 3/17/2020, these countries are Cuba, Iran, North Korea, Sudan and Syria.
- EAR (Export Administration Regulations) – The export control regulations administered by the U.S. Department of Commerce that controls dual use items, information, data and software.
- EAR99 – Items that are subject to the EAR, but not controlled under the EAR’s export control categories (ECCNs). EAR99 items are only controlled to restricted/embargoed countries or restricted parties.
- ECCN (Export Control Classification Number) – A category in the CCL that defines the items, materials, software and technology that are controlled, the extent to which they are controlled and the license exceptions available. There are 10 category groupings.
- Export – Sending or taking anything out of the United States in any manner, including shipping, verbal (i.e., telephone) or electronic (i.e., e-mail, webcasts, social media, fax).
- Foreign Person – A person that is not a U.S. Person. This also includes foreign organizations and governments.
- Fundamental Research – Research in engineering, technology, science or mathematics the results of which are intended for publication or communicated widely within the research community. Fundamental research is not subject to restrictions.
- ITAR (International Traffic in Arms Regulations) – The export control regulations administered by the U.S. Department of State that controls military, national security and space items, information, data and software.
- NLR (No License Required) – A determination that a particular activity (i.e., shipping an item or discussing a research collaboration) does not require an export license to proceed. This is typically because the applicable item or information is not export controlled, an exemption/exception applies to the activity, the activity is not with a country where the activity requires a license or the activity is not with a party for which a license is required.
- NDA (Non-Disclosure Agreement) – A document between two or more parties agreeing to not communicate private, proprietary, confidential, patentable and/or controlled information or data to persons not included as part of the agreement.
- OFAC (Office of Foreign Asset Controls) – The agency in the U.S. Department of Treasury that manages and enforces the Foreign Asset Control Regulations.
- Personnel Restriction – A clause placed in an agreement or award that restricts persons from certain or all foreign countries from participating in the research. Research subject to a personnel restriction is typically not considered fundamental research.
- Publication Restriction – A clause placed in an agreement or award that restricts the researcher from publishing his/her research until the sponsor or some other party approves the content of the research article. The approver can alter or remove content, methodology or results from the proposed article. Research subject to a publication restriction is not fundamental research.
- Publication Review – A clause placed in an agreement or award that allows the sponsor or some other party to review a proposed research article for confidential, proprietary, patentable or private information. It is not an approval and does not impact the publication of the results of the research. Publication review periods of 30-90 days are typically considered acceptable.
- Public Domain – Information that is readily available in libraries, magazine/newspaper articles, conference proceedings and/or on-line.
- RPS (Restricted Party Screening) – The activity of determining whether a person, company, organization, or vessel (i.e., a party) is on any government lists that places restrictions on activities with that party. RPS usually applies to the use of an on-line tool to conduct the determination.
- RWA (Returned Without Action) – This is a designation for an EAR export license that has been returned to the applicant either because of insufficient information or a license is not required.
- Service – Work done for hire that is not considered research.
- Subject to the EAR – Items that are controlled under the EAR. Fundamental research, information in the public domain and mass media items such as books, magazines and musical recordings are NOT subject to the EAR.
- TCP (Technology Control Plan) – A written plan that spells out the security measures needed for a particular project to ensure compliance with the appropriate export control regulations. The TCP may include computer password protection, encryption of data, physical locks on equipment, limiting access to labs through locks/key cards and lock boxes for materials depending upon the needs of the project/lab.
- USML (United States Munitions List) – The list of items export controlled under the ITAR. This list contains military, national security and space items.
- U.S. Person – A person that is a citizen, national or permanent resident of the U.S., or granted asylum, amnesty or refugee status by the U.S. government. This includes U.S. governments and universities, and companies organized under U.S. law
Fundamental Research Exemption
The Fundamental Research Exemption states that an export license is not required to transfer fundamental research to foreign persons. Fundamental research is defined as information, technology or software generated from research at an institute of higher learning the results of which are ordinarily published. Most research conducted at UW Oshkosh falls under this exemption.
Three things are important to remember with this exemption, however.
- The resulting information may be exempt from export controls, but the equipment used in that process may still be controlled and require an export control analysis.
- A publication restriction (in the project award) can negate this exemption as it is seen as hampering the researcher’s ability to publish their results.
- Non-disclosure agreements (NDA) may restrict the researcher’s ability to publish technical information covered by the NDA. Office of Sponsored Programs will review NDAs prior to signature to determine the impact it may have on your project.
Licenses are required when no exemption can be found for a research activity, particular item or specific person in regards to a project. The need for a license will depend upon the commodity being shipped, its destination country and/or the person/organization receiving the item. It generally takes 1-2 months to submit and receive a license from the Departments of State and Commerce. Licenses from the Department of Treasury may take considerably longer.
Researcher Roles & Responsibilities
Researchers have the following responsibilities in regards to Export Control:
- Answer the initial Export Controls questionnaire for international research projects
- Respond to any follow-up questions regarding export controls
- Review UW System and UW Oshkosh policies if you will be traveling internationally, shipping items abroad, purchasing items from a foreign entity, hiring, or working with foreign collaborators.