Definitions
- Exports
- Publication Restrictions
- Outbound Shipments
- Laboratory Access to Equipment and Technical Data
- OFAC-Governed Transactions
- Research Exclusion
- Publication
Exports
“Exports” are defined in two principal ways:
(1) Shipments of items or data abroad by any means; cargo shipments; electronic data transmission (email), spoken communication, hand carried articles, fax, and courier.
(2) By “release” or disclosure: visual and computer access to export controlled items, technology or technical data (hard or soft copy), occurring in the U.S by foreign persons of certain countries validly here on temporary student or employment visas, but who are neither U.S. citizens nor Permanent Residents; the export is “deemed” to occur upon the foreign national’s return to his/her home country. The definition of “foreign persons” includes companies not incorporated in the U.S., foreign governments, and international organizations.
** For purposes of both (1) and (2) above, technical data is defined as follows: blueprints, plans, diagrams, models, formulae, tables, engineering designs, and specifications, manuals and instructions written or recorded on other media or devices such as disk, tape read-only memories; and oral communication about any data contained therein.
The export control regulations govern what laboratory instruments, equipment, materials, software, technology and technical data can be transferred out of the country by any means (e.g. cargo shipment, hand-carried laptop content, courier, email, and spoken communication) as well as what can be accessed by foreign nationals present at our laboratories for whom certain export restrictions apply. In certain cases, these situations require prior authorization (an export license) from one of the applicable governing agencies. These agencies include the Departments of Commerce, State, Treasury, Defense, Energy, and the Nuclear Regulatory Commission.
While the vast majority of research and business activities that we conduct at SIU System are restriction-free, the significant increase in the level of agency export enforcement with respect to major research institutions such as SIU System requires that we ensure full compliance with these regulations, particularly where export license requirements or technology controls apply.
Failure to adhere to these regulations can result in severe monetary penalties, revocation of export privileges, debarment from federal funding, and civil or criminal enforcement against both SIU System and/or the individual PI to whom a violation is attributed. This heightened enforcement is further evident in the new H1/O Visa Petition Certification requirement, requiring SIU System to certify whether H1 or O visa beneficiaries will require an export license to access export controlled technical data in the course of their research responsibilities within our laboratories.
Public Restrictions
While most of its research is unrestricted, SIU System may obtain funding with publication restrictions. These projects do not enjoy the protective harbor of the fundamental research exception so specific security plans, export control reviews, export control licenses for personnel exposed to the technology, and continual close monitoring may be required after a thorough review by the SIU System Export Control Administrator. Mistakes in the dissemination of information in publication-restricted projects may lead to deemed export violations, which may result in personal jail time and substantial personal fines. In fact, SIU System would be required to immediately report any such deemed export violation to the Federal Bureau of Investigation and the Department of Commerce Office of Export Enforcement, among others.
Anyone working on a publication-restricted project should be aware of the large number of constraints on releasing information. All such information released should have the explicit written approval of the SIU System Export Control Administrator. They should also be cautious about providing gratuitous information and careful to guard against premature release of such potentially export controlled information as rapid advances or breakthroughs in technology. A violation of these precepts represents noncompliance with SIU System policies and may have serious repercussions.
Outbound Shipments
Outbound shipments or transfer by any means (cargo shipment, courier, hand carried, electronic) of export controlled commodities (hardware, laboratory equipment, materials, research samples) or technical data (software, blue prints, schematics, manuals, information in any form) require analysis under the three regimes discussed above (EAR, ITAR, OFAC) to determine whether a license is required.
Because a license can take at least 30 days to obtain, it is critical to address a potential export requirement as soon as possible to allow for sufficient processing time. The type of license, scope and duration will depend on which authorizing agency (Commerce, State, or Treasury) has jurisdiction over the license application or authorization. This rule applies even where the purpose of exporting the item is to advance fundamental research abroad, for example, as part of field work to be conducted in another country or to facilitate an international collaboration.
It is important to note that even where an item (commodity) is created in the University from commercially available components and data, or through technical know-how that is publicly available, the item itself may still require a license to export.
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:
- 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.
- 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.
OFAC-Governed Transactions
OFAC does not per se regulate access to specific laboratory equipment, technical data and research results the way that the EAR and ITAR do. Rather, OFAC regulates transactions involving certain restricted countries and, to the extent that such transactions require activity within SIU System’s laboratories, these activities fall under OFAC’s domain. For example, research collaboration with an institution in Iran requiring laboratory research at SIU System may require a license, even if only data and no commodity were being transferred to Iran. Transferring any research materials to the OFAC-restricted countries or importing any item from them may likewise require a license. Providing editorial comment directly to a foreign national located in one of the OFAC restricted countries as part of a journal or peer review requires review on a case-by-case basis.
However, this restriction should be distinguished from those situations where research results are made publicly available by posting them on the internet or through a professional website that anyone can access. In that case, the fact that an Iranian researcher or institution downloads the item does not constitute an OFAC violation. However, at the point at which the Iranian institution seeks specific guidance from SIU System pertaining to publicly available information or seeks technical assistance of any kind, this activity may trigger a license requirement.
Note also that SIU System engages in licensed academic exchanges with Cuba through SIU System’s Cuban and Caribbean Center. Where academic and potential research activity in Cuba is proposed, these activities should be evaluated through the Cuban and Caribbean Center for compliance with licensing and reporting requirements.
Research Exclusions
Exclusions from Export Control Laws include:
- Fundamental research exclusion (FRE)
You stay outside the regulations when conducting research that is considered “fundamental” or non-restricted. You must have the intention of publishing or otherwise broadly disseminating the research to maintain this exclusion. The FRE allows foreign national researchers at the University to access EAR-controlled items and data for purposes of basic and applied research. However, some fundamental research is informed by background information that is export controlled and must be protected. Non-research activities as well as restricted research are not protected by the FRE.
- Public domain exclusion
You stay outside the regulations when you share technical data or information with foreign person inside or outside of the U.S. if that data or information:
- has already been published
- is available in libraries or through newsstands, bookstores, subscriptions, or free web sites
- has been disclosed in published patent applications.
- Educational exclusion
You stay outside the regulations when teaching:
- general science, math, and engineering commonly taught at schools and universities
- information conveyed in courses listed in course catalogues.
Publication
Information becomes "published" or considered as "ordinarily published" when it is generally accessible to the interested public through a variety of ways. This includes publication in periodicals, books, print, electronic or any other media available for general distribution to any member of the public or to those that would be interested in the material in a scientific or engineering discipline. Published or ordinarily published material also includes the following: readily available at libraries open to the public; issued patents; and releases at an open conference, meeting, seminar, trade show, or other open gathering. A conference is considered "open" if all technically qualified members of the public are eligible to attend and attendees are permitted to take notes or otherwise make a personal record (but not necessarily a recording) of the proceedings and presentations.
