Export Controls Basics
Federal export regulations restrict the transfer of certain information and materials to foreign nationals and countries, and are intended to protect U.S. economic interests and foreign policy goals, as well as to prevent the acquisition of technology and information by parties hostile to the U.S.
The scope of the regulations is broad: they cover exports in virtually all fields of science, engineering, and technology. Export control laws apply to research activities regardless of the source of funding.
Understanding export controls is especially important for academic researchers whose work depends on an open exchange of ideas. Because many ordinary aspects of academic work fall under the purview of export controls, academic researchers need to know how to comply with the regulations and when their research activities are exempt.
The main regulating Federal Agencies
- U.S. Treasury Department, Office of Foreign Asset Control (OFAC)
- U.S. Department of Commerce, Bureau of Industry and Security (BIS)
- U.S. Department of State, Directorate of Defense Trade Controls (DDTC)
In order to preserve the Fundamental Research Exception, publish research results in a timely manner (e.g., early and often) through one of the means that qualifies as "publicly available" or "in the public domain." Publicly available technology and software is that which is:
- Already published or will be published in journals, books, open websites, or other media available to a community of persons interested in the subject.
- Published through release at open conferences and meetings.
- Arises during or results from fundamental research where the resulting information is ordinarily published and shared broadly within the scientific community and where no contractual controls have been accepted.
- Educational information released by instruction in catalog courses and associated teaching laboratories of the university.
- Included in certain patent applications.
Whenever possible, do not accept publication controls or restrictions, such as prior sponsoring agency approval of manuscripts or access/dissemination restrictions, such as approval requirements for access to or use by foreign nationals.
- Do not provide citizenship, nationality, or visa status information for project staff to sponsors or other third parties or include such information in proposals.
- Do not agree to background checks or other arrangements where the sponsoring agency screens, clears, or otherwise approves project staff. University policy allows for background screening conducted by the University when appropriate to the position.
Controlled or Confidential Information
- When invited and permitted to attend conferences or meetings that are held in the United States or hosted by the federal government, where foreign nationals are prohibited from attending, do not accept and do not bring to OHSU any material which is labelled as export controlled.
- Do not accept information that is marked both "confidential" and "subject to U.S. Export Control Laws."
- Do not disclose any controlled scientific and technical information related to export controlled items that you receive at the meeting through verbal, written, electronic, or visual disclosure, or share with foreign nationals any controlled scientific and technical information related to export controlled items.
Secrecy or Confidentiality / Non-Disclosure Agreements
- Whenever possible, do not enter into secrecy agreements or otherwise agree to withhold results in research projects conducted at the University or that involve University facilities, students, or staff.
- Do not enter into any Confidentiality/Non-Disclosure Agreements that contain language that has either OHSU and/or any of its employees assuming the burden of restricting dissemination based on citizenship status or securing licenses.
Fortunately, EAR and ITAR export control regulations allow for information that qualifies as "publicly available" and the results of research that qualifies as "fundamental research" to be excluded from the regulatory requirements for approvals. However, this does not apply to physical shipments or information received under a non-disclosure agreement, which need to be reviewed on a case-by-case basis.
The Fundamental Research Exemption
Under section 734.8 of the EAR, "Fundamental Research" is defined as basic and applied research in science and engineering, where the resulting information is ordinarily published and shared broadly within the scientific community. The applicability of the FRE to academic research hinges on two primary factors:
- the ability to perform fundamental research without restrictions (e.g., foreign nationals are not prohibited or restricted from carrying out the research, the research is not classified, etc.), and,
- the ability to broadly share and disseminate research results.
If the University or one of its researchers accepts restrictions on research project access or restrictions on the publication or dissemination of fundamental research results (other than ordinary prepublication review,) the FRE is no longer applicable to the research and an export license may be required.
We must protect this fundamental research exemption. At the same time, we must recognize that many University activities, both inside and outside of research, are subject to export control regulations. Here are just a few examples:
- Shipping or transferring equipment and biologicals, and sharing software across U.S. borders, may require a license before export.
- Collaborating with a colleague residing in an embargoed country (currently, Cuba, Iran, Syria, Sudan and North Korea) may violate OFAC regulations that restrict the provision of services to those countries.
- Receiving export controlled data from a sponsor can nullify the FRE. Accepting publication delays in excess of 90 days or allowing a sponsor to have approval rights or control over University publications nullifies the FRE. This occurs regardless of whether such rights are provided through an agreement between the University and a sponsor or other entity or made separately (verbally or in writing) between a researcher and a sponsor or other entity.
University community members are responsible for knowing how export controls apply to their work and for complying with export control regulations.
Violations can results in personal and institutional liability including fines and imprisonment.