Export Controls

Export control laws are federal regulations that regulate the transfer of controlled information outside the United States or to foreign persons in the United States. 
There are three main sets of export control regulations: (1) The Export Administration Regulations (EAR) (also known as the Commerce Control List) as administered by the U.S. Department of Commerce, Bureau of Industry and Security (BIS), (2) the International Traffic in Arms Regulations (ITAR) (also known as the U.S. Munitions List) as administered by the U.S. Department of State, Directorate of Defense Trade Controls (DDTC), and (3) U.S. trade embargoes, sanctions, and other restrictions as administered by the U.S. Department of the Treasury through the Office of Foreign Asset Control (OFAC).

These regulations cover virtually all fields of science, engineering and technology. However, they prohibit the unlicensed export of only certain materials or information for reasons of national security or protection of trade. See 15 CFR 774, Supplement 1 (EAR) and 22 CFR 121.1 (ITAR). Most exports do not require government licenses. Only exports that the U.S. government considers "license controlled" under the EAR and ITAR require licenses. Export controlled transfers usually arise for at least one of the following reasons:

• The nature of the export has actual or potential military applications or economic protection issues,
• Government concerns about the destination country, organization, or individual, and
• Government concerns about the declared or suspected end use or the end user of the export.

When an item is controlled, a license may be required before the technology can be exported. This requirement relates not only to tangible items (prototypes or software) but also to the research results themselves. There are certain countries where it is the policy of the United States to deny licenses for the transfer of these items.

Export-controlled transfers usually arise for one or more of the following reasons:

• The nature of the export has actual or potential military applications or economic protection issues,
• Government concerns about the destination country, organization, or individual, and
• Government concerns about the declared or suspected end use or the end user of the export.

You must ensure that any information that you will discuss or any items that you will take with you are either not controlled, or, if controlled, proper licenses are in place prior to discussing them with foreign nationals or leaving the country.

Determination of Applicability

To determine if export control regulations apply to a project or activity, researchers should ask themselves:

• When responding to the request for proposal, did the terms and conditions indicated that the research will not fall into the fundamental research exclusions with language such as:
  
  • Limitations on publication other than limited prepublication reviews to prevent unintentional divulging of the sponsor's proprietary information or for filing of patent applications? or
  • Limitations on foreign nationals being allowed to work on the project?
• Does the research involve any of the EAR categories?
• Does the research involve any item on the ITAR Munitions List?
• Does the research involve technology or devices designed for use in military, security and intelligence applications?
• Does the research involve anything else with a substantial or dual-use military application?
• Will you collaborate or work with in a foreign national on the project?
• Are there foreign nationals, including international Research Assistants and other students working in your lab?
• Will you send your research results to a foreign country or foreign citizen?
• Do you anticipate any foreign travel associated with the project?
  • If so, will you be taking a computer?

If the answer to any of these questions is yes, read the Handling Export-Controlled Information (PDF) document and review the Export Controls Determination Matrix contained in that document.

Exclusions

There are three exclusions that are available with respect to academic research: the education exclusion, public domain exclusion and the fundamental research exclusion. Even if an item appears on one of the lists of controlled technologies, there may be an exclusion for fundamental research if the results of the research are publicly available, are about to be publicly available, or in some cases, ordinarily are publicly available.

Most UHCL research activities are excluded from export controls because of the fundamental research exclusion. Fundamental research is defined as basic and applied research in science and engineering conducted at an institution of higher learning in the United States 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. Information which is publicly available also is not within the purview of the export control regulations. To guarantee the application of these exclusions, researchers should always strive to publish their findings to the fullest extent possible and should not agree to confidentiality clauses or other terms that restrict the dissemination of research materials and results.

Alternatively, when these exclusions do not apply and one needs to export a research item, it is important to plan accordingly and begin the process of obtaining an export license from either the Bureau of Industry and Security (BIS) or the Directorate of Defense Trade Controls (DDTC) as applicable, since the process of obtaining an export license from the government can be lengthy. ORSP and the Provost will work with researchers beginning with the international research collaboration disclosure form mentioned above.

UHCL is required to provide training to faculty and staff whose job duties or responsibilities involve any of the following:

• International travel (including processing paperwork for another employee's travel)
• International shipping (including processing paperwork for another employee's shipping)
• Research with international collaborators
• Handling and transfer of biohazardous materials to international locations
• Online instruction with students participating from international locations
• Technology support for research and distance education

If your role includes any of the above, follow the instructions to register and enroll in the Export Compliance CITI Training (PDF). New employees should complete the training within 30 days of hire. Current employees who change positions should consult with their supervisor to determine whether a different training course is needed based on the duties of the new position.

The export control regulations define an export as:

Any oral, written, electronic or visual disclosure, shipment, transfer or transmission of an item, including commodities, software or technology, outside the United States permanently or temporarily to anyone, including a U.S. citizen, a non-U.S. individual or foreign national anywhere in the world including in the U.S. ("deemed export"), or a foreign embassy or affiliate of any commodity, technology (information, technical data, or assistance) or software/codes.
Any oral, written, electronic or visual disclosure, transfer or transmission to any person or entity of a controlled commodity, technology or software/codes with an intent to transfer it to a non-U.S. entity or individual, anywhere in the world including in the U.S. (even to a foreign student or colleague at UH) or a foreign embassy or affiliate.
It is important to emphasize that only exports for which the U.S. government requires a license are those that are listed on the export-controlled lists. The vast majority of exports do not require the prior approval of the U.S. government.

Note: A "Foreign National" is any person who is not a U.S. citizen, is not lawfully admitted for permanent residence in the United States, or is not a person who is a protected individual under the Immigration and Naturalization Act (8 U.S.C. 1324b(a)(3))

The transfer of "technical data" (ITAR term), "technology" (EAR term) or source code by any method to a foreign national in the U.S. or abroad is deemed to be an export to the home country of the foreign national. This restriction also includes “technical assistance” from the foreign national.

Export is the transfer of controlled technology, items, software, or defense services to a foreign person in the U.S. or abroad by any means, such as:

• Faxes
• Telephone discussions
• Email communications
• Computer data disclosure
• Written or oral disclosure
• Face-to-face discussions
• Development and manufacturing activities
• Foreign students or scholars conducting research
• Foreign national employees involved in certain research
• Training sessions
• Tours which involve visual inspections

Certain exports are controlled because of the following reasons:

• The very nature of the export has or may have an actual or potential military application or poses economic protection issues.
• The U.S. government has a legitimate concern regarding the destination country, organization, or individual, and/or
• The U.S. government is concerned about the declared or suspected end use or the end user of the export.

Specific examples of these include:

• National Security
• Proliferation of chemical and biological weapons
• Nuclear Nonproliferation
• Missile Technology
• Anti-Terrorism
• Crime Control
• High Performance Computer
• Regional Stability
• Short Supply
• U.N. Sanctions

There are three main agencies involved in exports/export controls.

1. Bureau of Industry and Security

The Department of Commerce by the Bureau of Industry and Security (BIS) through its Export Administration Regulations (EAR), Title 15, § 730-774 of the Code of Federal Regulations controls goods and technology that have a dual use (commercial and potential military application), and deemed exports which are listed on the Commerce Control List (CCL). For a list of controlled technologies, see 15 CFR 774, Supplement I.

2. Directorate of Defense Trade

The U.S. Department of State by the Directorate of Defense Trade (DDTC) under the International Traffic in Arms Regulations (ITAR), 22 CFR §120-130 controls defense articles and defense services which are listed on the United States Munitions List (USML). For a list of controlled technologies, see 22 CFR 121.1.

3. Office of Foreign Assets Control

The U.S. Treasury Department's Office of Foreign Assets Control (OFAC) administers and enforces economic and trade sanctions that have been imposed against specific countries based on reasons of foreign policy, national security or international agreements. OFAC covers 31 CFR §500-599 which:

• Regulates the transfer of items/services of value to embargoed nations,
• Imposes trade sanctions, and trade and travel embargoes aimed at controlling terrorism, drug trafficking and other illicit activities,
• Prohibits payments/providing value to nationals of sanctioned countries and some specified entities/individuals, and
• May prohibit travel and other activities with embargoed countries and individuals even when exclusions to EAR/ITAR apply.

View full descriptions of all countries currently subject to OFAC sanctions.

UHCL 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 unless an exclusion or exemption is available. In some cases, a license may not be available at all because of the country involved. In addition to affecting the persons that may participate in the research project on campus, the following are examples where a license may be required:

• Presentation/discussion 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.
• Visits to your lab by foreign scholars.

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 a "dual use" (commercial in nature with possible military application) or inherently military in nature. Work in the following areas is considered high risk:

• Engineering
• Space sciences
• Computer Science
• Biomedical research with lasers
• Research with encrypted software
• Research with controlled chemicals, biological agents, and toxins

In addition, any of the following may raise export control questions for a 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.
• The physical export of controlled goods or technology is expected.

A license is not required to release technology information to foreign nationals on campus in the U.S. if one of these three exclusions applies:

The Public Domain Exclusion

The Public Domain Exclusion exempts the sharing of technical data or information with a foreign national inside the U.S. as a part of a class, laboratory, or conference or seminar, if the same technical data or information has already been widely published or is accessible or available to the public through the following:

• newsstands and bookstores
• subscriptions available to any individual
• second class mailing privileges
• libraries open to the public
• patents available at any patent office
• conferences generally accessible to the public/trade shows
• public release after approval by U.S. government or
• fundamental research

The Education Exclusion

The Education Exclusion exempts from export controls the sharing of information commonly taught in colleges and universities (ITAR) or educational information released by instruction in catalog courses and associated teaching laboratories (EAR). Therefore, in general, no license is required to share information as part of a course being taught. Note, however, that the education exclusion does not apply to proprietary information and certain information deemed classified or sensitive by the federal government.

The Fundamental Research Exclusion

The Fundamental Research Exclusion exempts from coverage basic and applied research in science and engineering performed by institutions of higher learning in the U.S. as long as the research carried out openly and without restrictions on publication or access to or dissemination of the research results. Fundamental research is distinguished from proprietary research and from industrial development, design, production and product utilization because the results of the latter are restricted for proprietary or national security reasons.

NOTE: The EAR and the ITAR differ on what is considered published information. The EAR requires that the information "has been", "is about to be", or "is ordinarily published". The ITAR requires only that the information has already been published.

If the project cannot remain within the relevant "fundamental research" exception under the ITAR or the EAR (as may be the case), the Office of Sponsored Programs will work with the investigator to minimize the compliance burden under those laws.

For situations arising under the EAR, those regulations have multiple categories of "license exceptions". The Office of Sponsored Programs may assist the investigator to fit any physical or "deemed" exports within one or more of those license exceptions and thus preclude the need for export licenses. If the Office of Sponsored Programs cannot use any of these alternative means of compliance with applicable law, it may be necessary for the university to secure an export control license from the appropriate government agency before the investigator can proceed with the work. It is the university's policy that all such license applications will be filed by the Office of Sponsored Programs and not by an individual investigator or department.

However, if the "fundamental research" exception does not apply, no alternatives are available and an export license cannot be secured from the relevant agency within a reasonable time and under reasonable conditions, the project will either need to be revised to bring it back under the "fundamental research" exception or else the project may not be undertaken at the university.

Contact the Office of Sponsored Programs to arrange appropriate support both within the university, and, where necessary, outside the university to address export control and license issues. Unless there is an urgent need for expedited review and approval, if all relevant information is current, there is usually a lengthy processing time. It may take from 1 to 3 months to secure a license to export the controlled materials from the U.S. or to transmit them to a non-U.S. citizen or permanent resident within the U.S.

The consequences for noncompliance are very serious for both the University and the investigator (including fines up to $1,000,000 and/or imprisonment up to 10 years for individuals). These penalties apply to single violations; multiple violations in the same project can easily result in enormous penalties.