Export control refers to federal laws and regulations governing the export of certain information and technology to foreign entities and foreign nationals, whether abroad or in the United States. Its purpose is to regulate distribution of strategically important technology and information to foreign nationals and foreign countries and entities for reasons of foreign policy, national security and the prevention of terrorism.
The export control regulations may affect the ability to:
- ship/take/transfer items outside the U.S.
- travel internationally with equipment/laptops
- collaborate with foreign colleagues/institutions
- allow the participation of foreign students or foreign researchers in research activities
- provide services (including training) to foreign persons, both in the U.S. and abroad
- and conduct research freely without having to apply for an export license and/or implement security access controls.
Criminal and civil violation penalties
In addition to various public policy reasons for the export control regulations, there are severe consequences for violations. This includes criminal and civil noncompliance penalties and sanctions for individuals and the university, including:
- up to $1 million for institutions and up to $500,000 for individuals
- up to 20 years in prison
- termination of export privileges
- suspension and/or debarment from federal government contracting
- and loss of federal funds.
University researchers have been sent to prison for violating these regulations.
To send or take controlled tangible items, software or information outside the U.S. in any manner (including hand-carried); to transfer ownership or control of controlled tangible items, software or information to a foreign person or government, or to disclose information about controlled items, software, or information to a foreign person or government. The controlled tangible item, software or information being sent or taken out of the U.S. is also referred to as an "export." This includes a "deemed export" (see below).
Examples of export activities include shipping items, communicating orally or by writing, hand-carrying items when traveling, providing access to or visual inspection of equipment or facilities, and providing services outside of the U.S. or to entities outside the U.S.
Restricted research is university research, development or testing subject to:
- publication restrictions
- access and dissemination controls (e.g., data use agreements, non-disclosure agreements, and confidentiality agreements)
- federally funded research with contract-specific national security restrictions
- the acceptance of third-party controlled items or information
- and the provision of access to, or defense services on, a defense article.
Restricted parties are individuals and entities that the university and its employees may not export to or engage with in controlled transactions. These include the Denied Persons List, Entity List and Unverified List (Department of Commerce); the Debarred Parties List (Department of State); and the Specially Designated Nationals and Blocked Persons List (Department of Treasury).
Several countries are under some form of sanction or embargo that may have export control implications. These include, but are not limited to, Iran, Sudan, Syria, Afghanistan, Belarus, Myanmar (Burma), Cote D'Ivoire (Ivory Coast), Cuba, the Democratic Republic of Congo, the Democratic People's Republic of Korea (North Korea), Liberia, Libya, Venezuela, and Zimbabwe.
The U.S. government's Consolidated Screening List contains a list of parties for which restrictions on certain exports, re-exports or transfer of items may be found.
A deemed export is the release of controlled technology or software source code to a foreign person in the U.S. A regulated export is thereby "deemed" to take place to the foreign person's home country or last country of citizenship.
To be considered dual use, items, information, and software that are primarily commercial or civil in nature also have potential military applications (e.g., GPS units).
In the U.S., foreign persons may include international organizations, foreign governments and any agency or subdivision of foreign governments, such as consulates.
A U.S. person is a citizen of the U.S., a lawful permanent resident alien of the U.S. (a Green Card holder) or a refugee or someone here as a protected political asylee or under amnesty. U.S. persons also include organizations and entities, such as universities, incorporated in the U.S. The general rule is that only U.S. persons are eligible to receive controlled items, software or information without first obtaining an export license from the appropriate agency unless a license exception or exclusion is available.
The results of fundamental research, or basic and applied research in science and engineering, are shared broadly within the scientific community. This is different from the results of proprietary research and from industrial development, design, production, and product utilization, the results of which ordinarily are restricted for proprietary or national security reasons.
A re-export is an actual shipment or transmission of controlled tangible items, software or information from one foreign country to another foreign country. The export or re-export of controlled tangible items, software or information that will transit through a country or countries, or will be unloaded in a country or countries for reloading and shipment to a new country, or is intended for re-export to the new country, is deemed to be an export to the new country.
Use the decision tree to identify export concerns
Export control regulations cover a wide array of activities, not just research projects. Use the decision tree to assist in determining whether an activity could be subject to the regulations.
If you're unsure if your activity is subject to export control regulations, or have any other questions concerning export control, contact the compliance coordinator.
Export control may apply: Next steps
If your activity is likely subject to export control regulations, you must complete the training available through the Collaborative Institutional Training Initiative online platform prior to engaging in your activity. This training includes the Introduction to Export Compliance module and any relevant supplemental modules relevant to your activity. The introductory course should take approximately 30 minutes to complete.
Contact the compliance coordinator to get help registering for the CITI program and to have the appropriate courses assigned to you.
There is no external funding supporting my activities. Do export controls apply?
Yes, export controls apply to all international activities regardless of funding status or source.
How can export controls affect my research?
View key definitions for "export" and "deemed export."
Unless an exclusion or exemption is available, SFA 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.
Additional examples of situations in which a license may be required include:
- presentations/discussions 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
- and visits to your lab by foreign scholars.
What kinds of projects raise export control questions?
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:
- "dual use" (commercial in nature with possible military applications)
- or 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
- and 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
- and the physical export of controlled goods or technology is expected.
I am doing basic research in collaboration with a foreign researcher or institution. Do export controls apply?
Yes, export controls apply to all international research activities. In general, basic research conducted at SFA is not subject to export controls under the Fundamental Research Exclusion as long as it is not in an export restricted area and there are no restrictions on publication or access by foreign nationals. However, in cases where SFA research involves collaborations with foreign nationals, SFA must perform a review of the research and document that the Fundamental Research Exclusion or other exclusion does or does not apply.
What is the Fundamental Research Exclusion?
Fundamental research is defined by the National Security Decision Directive 189 (NSDD189) as "any basic or applied research in science and engineering, the results of which are ordinarily published and shared broadly within the scientific community…" To qualify as fundamental research, the research must be conducted free of any publication restrictions and without any access or dissemination restrictions. Research that qualifies as fundamental research is not subject to export controls as provided for under the federal regulations. It is critical to note that the Fundamental Research Exclusion will be lost if a researcher agrees to any "side deals" allowing sponsors the ability to review and approve publications or to control access to the project or project results. Loss of the Fundamental Research Exclusion can quickly put your research in jeopardy of noncompliance with export controls.
I am doing basic research that includes field work done overseas. Does my research qualify under the Fundamental Research Exclusion?
Maybe. To qualify as fundamental research, research must be based at an accredited institution of higher education located in the U.S. If your research includes work done outside the U.S., it may not qualify for the Fundamental Research Exclusion. This does not automatically mean that export licenses will be required, but it does mean that an export control determination needs to be done before the work begins.
My research is exempt from export controls under the Fundamental Research Exclusion. Can I ship items developed as part of that research overseas?
Not automatically. While research results developed or generated under the Fundamental Research Exclusion are exempt from export controls and can be freely shared with foreign nationals both here and abroad, any materials, items, technology or software generated as a result of the research is not exempt from export controls. Before shipping or taking any item abroad, an export control determination needs to be done to determine if an export license is required to take or transfer the item.
What is the Educational Information Exclusion?
Information that is normally taught or released by the university as part of the normal instruction in a catalog course or in an associated teaching laboratory is considered educational information and, as provided for under the federal regulations, is not subject to export controls.
What is the Published Information Exclusion?
Information that is already published or is out in the public domain is considered public information and, as provided for under the federal regulations, is not subject to export controls. Examples of information in the public domain include books, newspapers and pamphlets; publicly available technology and software; information presented at conferences, meetings, and seminars open to the public; information included in published patents; and websites freely accessible by the public.
What is an export license?
An export license is a written authorization provided by the federal government granting permission for the release or transfer of export controlled information or a controlled item under a defined set of conditions.
What kinds of activities can trigger the need for an export license?
Examples of the types of university activities that may trigger the need for an export license or deemed export license include:
- research in controlled or restricted areas (e.g., defense items or services, missiles, nuclear technology, satellites, chemical/biological weapons, encryption)
- research involving the use of export restricted information obtained from external sources
- research involving collaborations with foreign nationals at SFA or overseas
- research involving travel or field work done overseas
- research involving the transfer or shipment of tangible items or equipment overseas
- presentations at meetings or conferences of unpublished information not protected under the fundamental research or educational information exclusions.
- and research involving the provision of financial support or services outside the U.S.
How do I know if I need a license?
Determining when you need an export license can be very complicated. Use the decision tree and take the supplied training.
Are commercially available items free from export control licensing requirements?
Yes, in most cases, low-end items that are commercially available do not require export licenses. There are some important exceptions including items containing strong encryption technology or software (e.g., laptop computers, web-enabled cellphones), items that have dual-use applications (e.g., high-end GPS units), or items that are restricted under other regulation.