Export control regulations
The term “Export Controls” refers collectively to the body of U.S. laws and regulations that govern the transfer of controlled items or information to foreign nationals or foreign entities.
Export controls apply to all international research activities. In general, basic research conducted at the University 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.
During the initial stages of project development, WSU investigators must ensure that appropriate measures have been taken to comply with export control regulations.
Examples of issues that MAY require export control review
- Taking a laptop computer outside of the U.S.
- Meetings with foreign nationals or entities.
- Work conducted on or off campus with foreign nationals.
- Accessing a U.S. database(s) from a foreign country.
- Any physical items or technology being exported out of the U.S.
If you are exporting any materials or working with a foreign national or entity
- Complete the export control decision tree.
- Once you have completed the decision tree, follow up on any guidance you receive.
- Contact the Office of Research Assurances if you require additional information or further guidance.
- The Office of Research Assurances must review any potential export control considerations.
What “export” means
The official definition of an export can be found in the federal Export Administration Regulations (EAR), part 734.13. To paraphrase, the term “export” means the following:
- Actual shipment or transmission of items, services, or technical data subject to either the EAR or the International Traffic in Arms Regulations (ITAR) out of the United States.
- Release of technology, software, or technical data subject to either EAR or ITAR to a foreign national in the United States. Technology, software, or technical data is “released” for export through any of the following means:
- Visual inspection by foreign nationals of U.S. origin equipment and facilities.
- Oral exchanges of information in the United States or abroad.
- Application to situations abroad of personal knowledge or technical experience acquired in the United States.
Fundamental Research Exclusion
Fundamental research refers to basic and applied research in which the results are typically published and shared broadly within the scientific community with no restrictions. This is separate from proprietary research which is restricted and is not shared broadly for proprietary or national security reasons. The research that most WSU faculty members are involved in is considered fundamental research and is not subject to these export controls as part of the Fundamental Research Exclusion.
However, any time there are sponsorship restrictions on the publication of scientific and technical information of a project or activity, the research is no longer fundamental and may be subject to export controls. The Fundamental Research Exclusion applies only to the dissemination of research data and information, not to the transmissions of material goods. Additionally, please note that physical goods, software, encryption, research with no intention to publish results, and/or research conducted outside of the U.S. do not qualify for the Fundamental Research Exclusion.
Guidance on the Fundamental Research Exclusion
- The Fundamental Research Exclusion provides that the information and software (except certain encryption source code) that result from fundamental research are outside the scope of EAR- or ITAR-controlled technical data, and may be disclosed to non-US persons without specific U.S. government authorization. No license is needed to share these results, even if they relate to items or technologies that are otherwise controlled.
- Fundamental research is defined as “applied research in science, engineering, or mathematics, where the resulting information is ordinarily published and shared broadly within the scientific community, as distinguished from research, the results of which are restricted for proprietary reasons or specific U.S. government access and dissemination controls.”
- The definition of fundamental research looks not only to the nature of the work but also to whether or not there are any restrictions on publication of the results or participation in the project. Contract clauses, terms and conditions, or verbal agreements that forbid the participation of foreign persons, give the sponsor the right to approve publications resulting from the research, or otherwise restrict participation in the research or access to and disclosure of the results mean that a project is NOT fundamental research.
- The fundamental research exclusion applies specifically to results of research, but the inputs to the project may remain export controlled. For example, confidential/proprietary information shared by a sponsor of the project may be export controlled and should not be shared with foreign nationals without first conducting an export control review. Similarly, providing export controlled technical data on a piece of laboratory equipment used by foreign nationals during the conduct of the research may require an export license (a.k.a., “deemed export”).
Most important regulations for researchers
EAR and ITAR control the export of certain commodities, software, technical data, and certain other information to foreign countries. They can restrict the furnishing of information, technical data, and software to foreign persons, either abroad or in the United States.
In the university context, these regulations can prohibit foreign persons from participating in research projects or having access to information resulting from research under some circumstances unless an export license has been obtained in advance.
While most university activities are not governed by EAR or ITAR, where these rules do apply they must be followed. Punishment for violations can be severe.
- Export Administration Regulations (EAR)
Primarily control the export of dual-use technologies—for example, items that are used, or have the potential to be used, for military as well as non-military purposes—if such export could adversely affect the national interests of the United States. Items regulated include those on the Commerce Control List (CCL).
- International Traffic in Arms Regulations (ITAR)
Controls items, services, and information designed or intended for use in defense applications. Items regulated include those on the United States Munitions List and the Missile Technology Control Regime (MTCR) Annex. ITAR is administered by the U.S. Department of State. In the Code of Federal Regulations, see 22 CFR Parts 120-130.
- Other regulations
It is important to be aware of other regulations as well. See, for example, 31 CFR Parts 500-599 in the Code of Federal Regulations.
Frequently asked questions
Ultimately, you are responsible for understanding and complying with EAR and ITAR when they apply to your research projects and results. The following guidance can help you understand how these regulations apply to your activities. It can help you identify situations in which further guidance is needed. (Frequently Asked Questions provided courtesy of Purdue University and University of Washington)
1. How do I know if export controls apply to a grant/contract?
ITAR places strict controls on the export of “defense articles” and “defense services.” Defense articles include any item or technical data on the United States Munitions List, and defense services include the furnishing of assistance to foreign persons, whether or not in the United States, with respect to defense articles, and the furnishing of any technical data associated with a defense article.
The following categories of defense articles and services are included on the United States Munitions List: ITAR Part 121
- Category I: Firearms, close assault weapons & combat shotguns
- Category II: Guns & armament
- Category III: Ammunition/ordnance
- Category IV: Launch vehicles, guided missiles, ballistic missiles, rockets, torpedoes, bombs, and mines
- Category V: Explosives & energetic materials, propellants, incendiary agents, and their constituents
- Category VI: Surface vessels of war and naval equipment
- Category VII: Ground vehicles
- Category VIII: Aircraft and related articles
- Category IX: Military training equipment and training
- Category X: Personnel protective equipment
- Category XI: Military electronics
- Category XII: Fire control, range finder, optical and guidance and control equipment
- Category XIII: Materials & miscellaneous articles
- Category XIV: Toxicological agents, including chemical agents, biological agents, and associated equipment
- Category XV: Spacecraft and related articles
- Category XVI: Nuclear weapons related items
- Category XVII: Classified articles, technical and defense services not otherwise enumerated
- Category XVIII: Directed energy weapons
- Category XIX: Gas turbine engines and associated equipment
- Category XX: Submersible vessels and related articles
- Category XXI: . Articles, technical data, and defense services not otherwise enumerated
The EAR Commerce Control List is more complicated. Restricted technologies are divided into 10 broad categories, and the specific restrictions depend on the specifics of the technology and where it’s being exported. Here are the categories:
- Nuclear Materials, Facilities and Equipment and Miscellaneous Items
- Materials, Chemicals, “Microorganisms,” and Toxins
- Materials Processing
- Electronics Design Development and Production
- Part 1: Telecommunications
- Part 2: Information Security
- Lasers and Sensors
- Navigation and Avionics
- Aerospace and Propulsion
(See Part 774 and subsequent categories on the EAR Commerce Control List.)
Going back to the original question, there is one crucial thing to remember: You cannot depend on the contract terms to know whether or not export controls apply. Whether or not the agreement specifically invokes or refutes a particular export control regulation is irrelevant to the question of whether or not the export control applies. For example:
- The contract says, “This work may be subject to ITAR,” but the work has nothing to do with anything on the ITAR Munitions List. Since the technology is not on the list, ITAR doesn’t apply.
- The contract says, “This work is exempt from ITAR,” but the work is researching defensive measures against biological weapons. This technology is on the ITAR Munitions List (Category XIV, Section C) so ITAR applies.
2. What do I do if I think export controls may apply to a grant/contract?
Do everything you can to ensure that the work performed at WSU falls within the parameters of the following exclusions:
- Fundamental Research Exclusion (FRE): Applies for basic and applied research in science and engineering performed by universities so long as that research is carried out openly and without restrictions on publication or access to or dissemination of the research results. (Be aware that the FRE differs from EAR and ITAR regulations. See 734.8 of the EAR and 120.10-11 of the ITAR for official definitions.)
- Public Domain Exclusion: Applies if the information is in the public domain, i.e., if it is published and generally accessible to the public through unlimited and unrestricted distribution.
- Teaching Exclusion: Authorizes the disclosure of educational information released by instruction in catalog courses or general scientific, mathematical, or engineering principles commonly taught in universities without a license.
3. Is there more information on the “Fundamental Research Exclusion”?
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 Section 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.
In addition, the fundamental research exclusion applies specifically to results of research, but the inputs to the project may remain export controlled. For example, confidential/proprietary information shared by a sponsor of the project may be export controlled and should not be shared with foreign nationals without first conducting an export control review. Similarly, providing export controlled technical data on a piece of laboratory equipment used by foreign nationals during the conduct of the research may require an export license (a.k.a. “deemed export”).
4. So I should focus on the publication clauses in the grant/contract?
Yes. If you suspect a project may be subject to export control, the first, best way to deal with this is to make sure there are absolutely no restrictions of any kind on our ability to publish the work.
Review and comment are okay, limited-time delay for patent protection is okay, but don’t give the sponsor the right to remove information of any sort from the publication. And watch out for dissemination restrictions in other parts of the agreement. The Office of Research Support and Operations will assist in this review.
Remember: Any information the sponsor can require be removed from a publication or otherwise restrict from dissemination will be information that falls outside the FRE.
But once you have publication nailed down, don’t forget the access issue. If the project is funded by the feds, and this includes flow-through funding, access restrictions also kick us out of the FRE. To remain safely within the FRE, you’ll need to get any restrictions on the kinds of personnel who can work on the project (e.g., no foreign nationals) out of the agreement.
5. What are some grant/contract clauses to look for that WSU will not agree with?
- “The parties acknowledge that the subject of this agreement may be subject to ITAR, EAR and/or other export control regulations as mandated by federal law. University agrees to indemnify, defend and hold Sponsor harmless from any and all suits, damages or other liabilities resulting from the violation of such regulations.”
- DFAR 252.204-7000, Disclosure of Information
“(a) The Contractor shall not release to anyone outside the Contractor’s organization any unclassified information…”
- FAR 52.227-17, Rights in Data, Special Works
(d) Release and use restrictions. Except as otherwise specifically provided for in this contract, the Contractor shall not use for purposes other than the performance of this contract, nor shall the Contractor release, reproduce, distribute, or publish any data first produced in the performance of this contract, nor authorize others to do so, without written permission of the Contracting Officer.
6. But as long as there are no publication restrictions and no personnel restrictions I can be confident the FRE applies, right? Does the project require us to produce and/or deliver any actual materials, i.e., equipment, devices or other embodiments of the technology at hand?
Recall that the FRE is extracted from the provisions that exempt from technical data, information that is in the public domain and that information in the public domain includes fundamental research. Accordingly, the FRE applies only to data/information. Equipment and other materials can’t be exempted under the FRE.
So, for example, while data relating to a system for defending against anthrax could, depending on the publication and personnel terms, stay within the bounds of the FRE, as soon as we actually build an anti-anthrax device, we’re back under the export controls.
Said another way: the availability of an exemption for fundamental research relating to defense articles and defense services controlled under ITAR is highly limited. Therefore, any work being conducted in the areas covered by the USML must be restricted so that foreign nationals do not have access to the work being conducted or to the resulting data, unless:
- an export license has been obtained;
- governmental approval to proceed without an export license has been obtained;
- the director, Office of Research Support and Operations and the vice president for research have determined that the ITAR does not impose restrictions under the facts of the particular situation.
NOTE: If the work is going to be subject to export control regulations, and can’t be covered under the FRE, there are a few things that will likely need to happen.
- First, WSU is probably going to have to produce a Technology Control Plan that explains how we’re going to ensure that we don’t violate any of the export control laws. This will necessarily involve WSU’s research compliance officer, assistant attorney general, the director of ORSO, and the vice president for research.
- Second, at the very least, the PI’s chair and dean are going to need to sign off on the project and do so in a way that explicitly acknowledges the export control issue. (The REX form alone is not enough.)
- Third, it’s possible that the project will need to be reviewed and approved by the Faculty Senate, the vice president, or someone else at the University with the authority to put WSU’s reputation and finances on the line.
Details of these responsibilities will be managed on a case-by-case basis.
7. What is involved in obtaining an export license?
A request must be submitted to either the Department of Commerce for EAR-controlled items or the Department of State for ITAR-controlled items. Export licenses can take up to 3-6 months for review before a final determination is made. A request for an export license would be initiated through the office of the vice president for research.
8. So I have a project that might be subject to ITAR, but the publication language is perfect, there are no restrictions on project personnel, and we’re not producing anything other than a report. What do I do?
Treat the award as you would any other. Since we’re clearly under the FRE, there’s nothing to worry about vis-a-vis export control.
- Export regulations are federal law. Don’t rely on the agreement terms to tell you when the export regulations will apply. (The agreement can actually be misleading.)
- Never agree to offer indemnification for violations of the export regulations.
- If you think a project could be subject to export regulations, your first, best move is to make sure the work stays within the Fundamental Research Exclusion. This means:
- There are no restrictions (at all) on publications.
- If the money is coming from the feds, there are no restrictions on the personnel we can use.
- Watch out for flow-down clauses that bring publication/personnel restrictions into the agreement. Some are obvious, others may be less so.
- Also remember that the FRE won’t apply to projects where we’re going to be producing and/or delivering an actual device, piece of equipment or other embodiment of the technology. The FRE only applies to information.
- 22 CFR Section 121.1: The Code of Federal Regulations Title 22, Foreign Relations; Chapter I, Department of State; Section 121.1, The U.S. Munitions List (General).
- Export Administration Database: This database maintained by the Bureau of Industry and Security, Department of Commerce, is a complete collection of regulations relating to EAR. Supplement 1 of 15 CFR Section 774 is represented by Categories 0-9.
- Bureau of Industry and Security, Department of Commerce: The Bureau of Industry and Security is the ultimate authority on all issues relating to EAR. This site should be considered the most current source of EAR regulations and information.
- American Association of Universities: The American Association of Universities provides timely and accurate analysis of federal policies impacting extramural research at universities in the U.S.
- Council on Government Regulations: The Council on Government Regulations (COGR) provides further analysis and interpretation on a wide spectrum of government regulations.
- WSU Memorandum: Export Control Laws and Regulations: 2004 memo from the Vice Provost for Research relating to export controls and foreign travel.
For more information on compliance with export control regulations, please contact:
WSU Office of Research Support and Operations
WSU Office of Research Assurances