There are several sets of regulations that currently impact exports, they include:

  1. Export Administration Regulations (EAR); U.S. Department of Commerce
  2. International Traffic in Arms Regulations (ITAR); U.S. Department of State
  3. Office of Foreign Asset Controls (OFAC) Department of Treasury Regulations

Export Control Regulations have been changed recently to move some technologies from the US Munitions List (USML), which is controlled by ITAR, into the Commerce Control List (CCL), which is under the EAR. How does this affect my research at USU?

USU has commonly relied on the USU Research Foundation’s knowledge and skill sets to carry out ITAR related research. Some technologies previously covered in the ITAR are now regulated under the EAR. This applies especially to satellite and space technologies. USU will continue to coordinate with USURF, and may rely on USURF to support export controlled projects in the future, on a case by case basis. However, USU may choose to carry out export controlled projects on USU campuses when appropriate. In general, the more easily a project can be conducted within the parameters that meet the Fundamental Research Exclusion, the more likely it could be conducted at USU’s campus.

The differences are related to the types of research that fall under their jurisdictions. Research under the EAR covers dual use items that are designed for commercial purposes that also have a military application. Included are goods, test equipment, materials and the software/technology for operation. Research under the ITAR is limited to military items found of the USML. ITAR is inclusive of space related technologies and technical data that relate to defense articles and services.

USU researchers should focus on the similarities between the two regulator structures. Under both sets of rules, controlled technologies cannot be “exported” to individuals who are foreign nationals except under a license issued by the Federal Government.

It is the responsibility of each Principal Investigator to recognize situations that may require export licensing. At USU common technologies that should trigger a review would be space-related technologies, use of select agents or technologies designed to detect certain agents or compositions that could be used in military or para-military applications, encryption and decryption technologies and unmanned aerial vehicles. This is by no means a comprehensive list. PIs may consult the Sponsored Programs Division or the Office of Compliance Assistance, which acts as USU Export Control Office to identify and plan for research involving potential export controlled technology.
What does and does not fall under public domain in your research?

  • Familiarity with “deemed” exports when technology or source code subject to the EAR to a foreign national, regardless of location
  • Fundamental Research Exclusion (FRE)
  • Situations that invalidate the FRE
  • Faculty start-up funds and non-sponsored research that may be included on the export control lists
  • Software development involving encryption technologies
  • Shipping and payments to foreign persons outside the U.S.
  • International travel especially when interacting with foreign nationals and sharing research findings
Three general categories qualify for exclusions from export control regulations. For USU, the most important is the Fundamental Research Exclusion. In addition there is an employment exclusion and an education exclusion that are explained below.

Fundamental Research Exclusion (FRE)- No license is required to disclose information to foreign nationals that has been published and is accessible or available to the public. This can be for example through fundamental research where the resulting information is ordinarily published and shared broadly.

Administrative cases carry a civil penalty amounting to the greater of $250,000 or twice the value of the transaction for each violation.

What are the possible consequences for an individual who willfully or recklessly exports a technology?

Criminal violations may be fined up to $1,000,000 and may result in up to 20 years of imprisonment. Willful violators may be subject to both criminal fines and administrative penalties.

Two issues can arise that affect USU’s access to the FRE. The first is acceptance of contract clauses as follows: Language that specifically precludes the participation of foreign nationals

  • Language that gives the sponsor a right to approve (not just review for intellectual property disclosure) publications resulting from research
  • Language that otherwise operates to restrict participation in research and/or access to and disclosure of research results, such as government clauses inappropriately flowed down that apply export control restrictions or declare research outcomes as sensitive or classified.

The second broad issue is the transfer of items or services that cannot meet the requirements of the FRE. For example:

  • Operations that represent a transfer of defense articles or services
  • Receipt or transfer of items (rather than technical information) to which the FRE does not apply. Any tangible item that is associated with a ECCN or a USML classification will not qualify for the FRE.

Education exclusion – “Information concerning general scientific, mathematical or engineering principles commonly taught in universities or information in the public domain” does not require a license to share with foreign nationals. However, any controlled equipment needed to conduct research needs to be registered for instructional uses in credited research classes.

Employment exclusion – Under the EAR, no license is required to share covered technical data with a foreign national that is:

  • Not a national of certain countries (depending on the ECCN)
  • A full-time employee of USU
  • Has a permanent U.S. address while employed
  • Advised in writing not to share covered technical data with any foreign nationals

Technology Control Plans are typically used to control how protected information will be used and how it will be secured. For example, a TCP could be formulated that would clearly restrict access of a foreign national to information that is export controlled, but is not needed for his/her conduct of research that would be excluded under a FRE. Or a TCP could restrict access to equipment that is on the CCL or USML to a PI (who is not a foreign national), so that other members of the team are not exposed to it. USU’s Export Control Officer is available to help develop plans that will meet the requirements of the EAR or ITAR.
USU has a TCP template that can be used by investigators to develop an effective TCP when technologies are identified that must be export controlled and cannot be conducted under a FRE.

Yes, but remember that once information has been disclosed to an individual, that bell cannot be “unrung.” So it is important to specify in the NDA exactly who will be able to receive and analyze information shared under the NDA, and under what conditions. USU has developed template language and processes that will assist investigators in effectively constructing a “firewall” between export-controlled information and their research teams. Investigators should always be in a position to refuse export controlled information, or information that would put their FREs in jeopardy.

A person with specific knowledge of the international regulatory environment, or that has experience with facilitating communications among individuals with diverse languages and backgrounds would clearly be integral to the team, so long as the extent of the work was sufficient to require support on a relatively long-term basis at a substantial level of commitment (say .50 FTE or greater). However, an additional individual that was handling the normal work within the departmental office to support the same project would not qualify.

The director of export compliance has the following responsibilities

  • Identify areas at USU that are impacted by export control regulations
  • Develop export control procedure guidance to maintain compliance
  • Educate inventors, principal investigators, research centers and academic units about export control regulations
  • Educate business managers, purchasing, travel, international students and Human Resources about export control regulations
  • Monitor and interpret export control legislation
  • Assist investigators, researchers when research involves export controlled equipment or information
  • Assist the PI in developing a technology control plan for research that requires it
  • Apply for export licenses, commodity jurisdiction and commodity classification requests
  • Advise and assist with record keeping for export controlled activities

Grant Coordinators & Administrators (Sponsored Programs Division)

  • Provide assistance to PIs in reviewing terms of sponsored program agreements, material transfer agreements and other non- monetary agreements to identify restrictions on publication and dissemination of research results. The will also flag such restrictions in agency requests for proposals
  • Provide assistance to PI in identifying international components of sponsored program agreements, identifying potential export control issues in the proposed international component
  • Communicate identified potential export control issues to the PI and the Director of Export Compliance
  • Coordinate any changes in awards that necessitate a re-review of the project for export controls

Business Administrators

The school and department business administrators assist in ensuring compliance with export control regulations by identifying potential export issues in unit activities. Such issues may include:

  • Reviewing invoices for statements that items may not be exported
  • Ensuring international shipping is compliant with export control laws
  • Ensuring that payments do not go to, or contracts are not entered into, anyone on the then-current Specially Designated Nationals (SDN) list
  • Ensuring that international travel is compliant with applicable export control regulations
  • Ensuring that visa export certification information has been completed

Principal Investigators

PIs, by nature of their profession, have expert knowledge of the type of information and technology involved in a research project and other university activities such as presentations and collaboration. PIs must ensure that they do not disclose controlled information that has been provided them under a corporate non-disclosure agreement or transfer controlled articles or services to a foreign national without prior authorization. Each PI must:

  • Understand his/her obligations under the export control laws
  • Assist the USU research compliance office in correctly classifying technology and items that are subject to export control laws
  • Assist in developing and maintaining the conditions of a technology control plan for any activity, data or equipment where the need for such a plan is identified
  • Ensure that research staff and students have been trained on the technology plan and on the export control regulations should any apply.