Current export laws control both hardware and information regarding a wide range of technologies in a way that may have a substantial impact on research at CSU. Federal regulations control the conditions under which certain information, technologies, and commodities can be transmitted overseas to anyone, including U.S. citizens, but also to foreign nationals on U.S. soil. The following Q&A may help clarify some of the requirements. For additional information, see Information and Guidelines: United States Export Control Laws, on the CSU Export Control website.
What are Export Controls?
The United States government has a vested interest in protecting certain types of technology, and either monitoring or controlling its dissemination. “Export Controls” refer to a group of federal laws and regulations which dictate the handling of certain non-classified information and technology. All U.S. citizens must follow these rules, and significant individual and institutional penalties may be assessed for non-compliance.
Who controls exports?
In the university setting, we are primarily concerned with:
- International Traffic in Arms Regulations (ITAR) enforced by the Department of State under 22 CFR §§ 120-130. These cover defense related articles and information used for military purposes such as: explosives, chemicals delivery systems, and biological agents.
- Export Administration Regulations (EAR) enforced the Department of Commerce under 15 CFR §§ 730-774. These cover everything else such as: grain, office equipment, automobiles, software and computers.
It is important to emphasize that the 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.
What is an export?
An export can be any of the following:
- Actual shipment of any covered goods or items;
- The electronic or digital transmission of any covered goods, items, or related goods or items;
- Any release or disclosure, including verbal disclosures or visual inspections, of any technology, software or technical data to any foreign national wherever located; or
- Actual use or application of covered technology on behalf of or for the benefit of any foreign entity or person anywhere.
An important license exception exists in both the ITAR and EAR for researchers conducting “fundamental research” and for information considered to be “in the public domain”.
What is considered fundamental research?
Fundamental research, as used in the export control regulations, includes basic or applied research in science and/or engineering at an accredited institution of higher learning in the United States where the resulting information, in some cases, is ordinarily published and shared broadly in the scientific community and, in other cases, where the resulting information has been or is about to be published. Fundamental research is distinguished from research that results in information that is restricted for proprietary reasons or pursuant to specific U.S. government access and dissemination controls. University research will not be deemed to qualify as fundamental research if (1)the university or research institution accepts any restrictions on the publication of the information resulting from the research, other than limited prepublication reviews by research sponsors to prevent inadvertent divulging of proprietary information provided to the researcher by the sponsor or to insure that publication will not compromise patent rights of the sponsor; or (2) the research is federally funded and specific access or dissemination controls regarding the resulting information have been accepted by the university or the researcher.If research is not considered fundamental research, a license from the government may be required.
What is considered published information for fundamental research?
The EAR and the ITAR approach the issue of publication differently. The EAR requires that information has been, is about to be, or is ordinarily published. The ITAR requires that the information has actually been published. Information becomes “published” or considered as “ordinarily published” when it is generally accessible to the interested public through a variety of ways: 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: ready availability at libraries open to the public; issued patents; and releases at open conferences, meetings, seminars, trade shows, or other open gatherings. 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. In all cases, access to the information must be free or for a fee that does not exceed the cost to produce and distribute the material or hold the conference (including a reasonable profit).
What is public domain and why is it important?
Public domain is the term used for “information that is published and generally accessible or available to the public” through a variety of mechanisms. Publicly available software or technology is that which already is, or will be, published. To fall under this exception, there are a number of conditions which demonstrate public availability as enumerated in the EAR.
When CSU conducts research involving export-controlled technology, what steps do we need to take?
The simplest solution is to ensure that only U.S. persons (citizens and permanent residents) work with and have access to the project, and to partner with Scot Allen, the CSU Export Control Administrator to develop and sign a Technology Control Plan. Technology Control Plans (TCP) outline how the controlled items will be handled and secured to prevent access by unauthorized persons. Plans will address physical security of labs, offices, and other work areas as well as the security of data on computers and computer networks. In cases in which foreign persons will be involved in or have access to research with export-controlled technology, then a license may be required.
If a license is needed, what is the process?
Scot Allen is the Export Control Administrator for CSU, working under the Vice President for Research. He will arrange for appropriate support both within the University and, where necessary, outside the University to address export control and license issues. It normally takes several months to secure a license to export controlled materials from the U.S., or to transmit them to a non-U.S. person within the U.S. If you think you may have an export control concern, timely contact with the Export Control Administrator will ensure the promptest results.The following types of information will be needed to apply for an export control license:
- Detailed description of work effort
- Estimated dollar value
- Category of ITAR/EAR (e.g. ITAR Category XV-Spacecraft Systems & Associated Equipment)
- Duration of effort
- Statement of work
- Copies of passport, Visas, Current CSU job description of individual for which the license and/or TAA applies, CV/Resume
- U.S. Address
- Foreign address
- Technology Control Plan
Are biological and chemical technology subject to Export Controls also be subject to Dual Use Research of Concern (DURC) or Select Agent restrictions?
Yes, they may be. Go to the Institutional Biosafety Committee page to find out more.