Foreign National Access to EAR- and ITAR-controlled Items and Data

Do I need a license to allow foreign national access to laboratory equipment?

What about foreign national access to technical data?

How does having an ITAR item in my laboratory affect foreign national (student, post doc, H1) access to it, including foreign nationals subject to SIU System’s Foreign Visits and Assignments Program?

But can’t foreign nationals access all equipment and data since SIU System operates under the Fundamental Research/Public Domain Exclusions?

What if I’m a foreign national PI who wishes to access an ITAR item as part of my fundamental research program: am I excluded from access as well?

Is there any problem with communicating with or assisting a foreign government with respect to our research? 

Q: Do I need a license to allow foreign national access to laboratory equipment?

A: In some cases, yes.

Assuming the Fundamental Research Exclusion (FRE) applies to the activity in which EAR-classified equipment is being accessed, generally speaking no license is required. However, there are some narrow exceptions to this rule: access to a) certain levels of advanced cryptographic functionality and source code; and b) proprietary third party proprietary “use” and “development” technology pertaining to the equipment if it in fact is controlled.     

Q: What about foreign national access to technical data?

A: In some cases, this will also be licensable.

As with the above scenario, unless the situation aligns to one of the FRE exceptions, access to technical data related to operating EAR equipment does not constitute a licensable deemed export.   

Q: How does having an ITAR item in my laboratory affect foreign national (student, post doc, H1) access to it, including foreign nationals subject to SIU System’s Foreign Visits and Assignments Program?

A: If you’ve invented the item and publish the results of your invention, there is no access restriction, since it was created under the Fundamental Research/Public Domain exclusion. However, if you’ve purchased the item or otherwise received it from a third party (i.e. proprietary technology) and it is not already in the public domain, then access to or use of the item that allows the foreign national insight into how it works (directly or by virtue of controlled technical data) is restricted and subject to license authorization; in this case, while a license application is pending or if no license is applied for or approved, the ITAR item will require a Technology Control Plan to restrict access by foreign nationals.

Q: But can’t foreign nationals access all equipment and data since SIU System operates under the Fundamental Research/Public Domain Exclusions?

A: No.

See ”How does having an ITAR item in my laboratory affect foreign national (student, post doc, H1) access to it?” The same rule applies to ITAR technical data (not self-invented) that exists in any form (soft or hard copy), conversational release of data, blue prints, manuals, etc.

Q: What if I’m a foreign national PI who wishes to access an ITAR item as part of my fundamental research program: am I excluded from access as well?

A: Yes, with one exception that can be utilized with the assistance of SIU System’s export administrator.

There is one narrow exception under the ITAR which allows a PI access to ITAR technical data where the PI is a bona fide, full time employee of the research institution and meets other specific criteria. Assuming the terms of this exception are met, the PI is subject to the same no-transfer restrictions that a U.S. person PI is subject to. Hence, this exception is used for accessing background information only necessary to launch or conceptualize contemplated fundamental research. If the research requires the data to be shared with the research team which may include foreign nationals, the exception cannot be invoked, since only the PI may qualify under the exception. PIs wishing to explore using this exception must contact SIU System’s export administrator prior to accessing any such data.            

Q: Is there any problem with communicating with or assisting a foreign government with respect to our research?

A: It depends on the situation.

If the research involves ITAR technical data and we are training or assisting the government representative to be able to use it in a defense context, this would require a “defense service” TAA.  This applies even if the data is already in the public domain (this rule is currently being de-regulated by State, but is not yet law); i.e. data not yet in the public domain and provided to a foreign defense organization would still constitute a defense service, and require a TAA.  (Note: even EAR-classified technical data being provided to a foreign defense organization for a defense purpose may constitute a defense service).