Laboratory access to equipment and technical data 

The rules governing access to controlled equipment and data vary depending on whether the access is covered under the EAR or ITAR, as follows:

  1. Dual-use (EAR-governed) inventory and technical data

Click here to access Parts 730 to Part 774 of the Export Administration Regulations in the Electronic Code of Federal Regulations.  Scroll to Part 774 for a complete digest and list of major headings:

Fundamental Research Exclusion (FRE): Where we are conducting fundamental research (defined as basic and applied research, the results of which are meant to be shared broadly with the scientific community and intended for publication, access to dual-use laboratory equipment and technical data remains unrestricted, subject to exceptions. These exceptions are as follows:

Exception 1: Where a PI has received proprietary technology or source code (“data”) from a sponsor (federal or industrial) as background information or a research tool by which to conduct fundamental research, and this data is export controlled, then access to this data falls outside the FRE: the PI (likely a U.S. person as required by the NDA through which the data is received) is responsible for not sharing it with foreign national members of the research team. Where it is recognized as necessary to share such data and this is contemplated by the NDA, a deemed export license may be required in order for the foreign national to access the data.

Exception 2: Where the proprietary technology specifically concerns technology for the development of advanced cryptography or source code containing advanced cryptography, then a deemed export license will be required prior to access by foreign nationals from Iran, Cuba, Syria, North Korea, and Sudan. SIU System’s Export Control Administrator can assist in determining what qualifies as advanced cryptography for this exception. Again, please note that such technology if self-invented at SIU System does not require a license for access by this category of foreign nationals, assuming the technology or code is intended for publication.

Exception 3: Where SIU System rents or otherwise hosts laboratory space to external or third party users for their own proprietary, commercial purposes and not to conduct the fundamental research, the FRE does not apply to that party’s access to controlled equipment and process technology. In this case, SIU System must determine whether a deemed export license is required.

Exception 4: Fabrication or contract service work for an industry or federal agency partner.  Where SIU System conducts fabrication and contract service work outside of fundamental research, the FRE does not apply. In this case, SIU System must determine whether a deemed export license is required. See also “How Do These Regulations Specifically Impact SIU System’s Research Activities?” pertaining to spin-off entities and consulting relationships.

  1. Defense (ITAR-governed) inventory and technical data

Click here to access the USML ITAR list of controlled items:

Like the EAR, the ITAR recognizes fundamental research subject to the same framework of not accepting publication or citizenship restrictions, and requiring that all research be intended for the “public domain.” Hence, acceptance of any citizenship or publication restriction by a sponsor automatically triggers ITAR disclosure restrictions to research results classified as ITAR. Again, SIU System does not usually accept restricted funding from a government or industry sponsor (and regardless of whether SIU System is a prime or subcontractor), and most—but not all—of its research results are intended for the public domain.

However, even where no restrictions are accepted from a sponsor as to the dissemination of research results, ITAR controls still apply to any ITAR item or data that SIU System receives either from the sponsor or a collaborating institution, or procures commercially for purposes of conducting the research. Whereas the FRE (with only certain exceptions) allows access to equipment and data used during the course of fundamental research by foreign national faculty and researchers, ITAR restricts access to equipment and data where using it in any capacity discloses the inherent design, operation, or know-how that renders it ITAR controlled.

In this case, where a PI wants to provide access to a foreign national researcher of ITAR controlled commodity, equipment or data, either SIU System will have to obtain an export license prior to access, or the PI will need to create a Technology Control Plan (TCP) to secure the item. The TCP is used to allow physical access to a commodity or virtual or physical access to technical data only to U.S. persons. The only exception to this rule is the situation where the foreign researcher qualifies as a full time SIU System employee and where certain other regulatory criteria are met. Even were this exception met, the foreign researcher cannot transfer the ITAR-controlled data to any other foreign national on the research team.

As noted, separate from the restrictive access provisions under the ITAR, ITAR also requires licensing of foreign nationals when the research activity constitutes a “defense service” as defined above.