Export Controls are U.S. laws that restrict the transfer of militarily useful goods, technology, services, and information, including equipment and technology used in research, for reasons of foreign policy and national security.
The three main export control regulations that implement these laws are:
- International Traffic in Arms Regulations (ITAR) administered by The State Department addresses inherently military technologies and services. This involves transfer and export (including deemed exports) of items with military applications listed on the U.S. Munitions List (USML).
- Export Administration Regulations (EAR) administered by The Department of Commerce addresses technologies having a dual military and civilian application, and includes Transfer and export (included deemed export) of “dual-use” items listed on the Commerce Control List (CCL).
- Office of Foreign Asset Controls (OFAC), The Department of Treasury governs the transfer of assets to prohibited persons or countries subject to boycotts, trade sanctions, or embargoes. Transactions with countries subject to boycotts, trade sanctions and embargoes and with individuals identified on the Specially Designated Nationals and Blocked Persons List (SDN) are subject to export controls.
An Export is any oral, written, electronic, or visual disclosure, shipment, transfer, or transmission of goods, technology, services, or information to anyone outside the U.S. (including a U.S. citizen physically located in a foreign country), a non-U.S. entity or individual regardless of location, a foreign embassy or affiliate.
Any activity regardless of funding type may be subject to export controls if it involves the actual export or “deemed” export of any item that is either “dual use” (commercial in nature with possible military application) or inherently military.
Work in the following areas is considered high risk:
- Space sciences
- Computer Science
- Research with encrypted software
- Research with controlled chemicals, biological agents, and toxins
In addition, any of the following raise export control questions for your project regardless of the area of research:
- 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 items, including information or technology, will be furnished for use in the research
- The physical export of controlled goods or technology is expected
Disclosure or transfer of export controlled items, including technology and information, to a foreign entity or individual within the U.S. are deemed to be an export to the home country of the foreign national and can occur by such means as:
- Tours of laboratories
- Involvement of foreign researchers or foreign students in the research
- Oral exchanges, emails, or visual inspection
- Hosting a foreign researcher
For purposes of export controls, a “foreign” entity is any foreign government, foreign organization not incorporated or organized to do business in the U.S., or any individual who is not a U.S. citizen or lawful permanent resident of the U.S. (green card holder).
The consequences for noncompliance are very serious for both the University and the researcher. George Mason is committed to compliance with these laws and the Office of Sponsored Programs (OSP) will assist Principal Investigators in putting the proper procedural safeguards into place to avoid a violation. Penalties may include fines up to $1,000,000 and, for individual researchers, imprisonment up to 10 years. These penalties apply to single violations; multiple violations from the same transaction can easily result in enormous penalties. Sanctions on both individuals and institutions may also include termination of export privileges, suspension/debarment from federal government contracting, and loss of federal funding.
The following are exclusions from or exceptions to the export control requirements:
Fundamental Research Exclusion – applies to the products, but not the underlying data or documents, of basic and applied research in science and engineering performed by universities as long as the resulting information is ordinarily published and shared broadly within the scientific community.
However, a foreign national may not necessarily be allowed to use the equipment in a lab if the “fundamental research” exclusion applies to the research. The transfer of controlled technology or source code of a controlled item may require a license even if the normal operation of the equipment does not.
The “fundamental research” exclusion can be removed for the following reasons:
- Accept restrictions on publication or release of information
- Allow sponsor approval rights on publications
- Limit access of foreign nationals to research
- Enter into Non Disclosure Agreements (NDAs) that limit disclosure of information
- PIs accept “side deals” directly with a sponsor
Educational Information – information commonly taught for instruction in courses and associated with general scientific, mathematical, or engineering principles
Publicly Available – information generally accessible to the public, such as information in libraries, bookstores, open seminars, and published patent information. However, the State Department has determined that information contained on internet sites is not necessarily considered to be in the public domain.
Export Controls affect research development because the University is 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 exception is available.
In addition to affecting who may participate in the research project, export controls may affect research by requiring licenses in the certain situations, for example;
- Presentation or 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
As a Principal Investigator, you need to educate yourself about export controls. You don’t have to become an expert, but you need to have a fundamental understanding of the subject to be able to know when to raise questions and alert the University to a possible export controls issue.
The Office of Research will provide periodic trainings and seminars on export control regulations. OSP staff will closely monitor RFPs, proposals, award documents and other agreements to highlight potential export control issues. The University has registered for an online tool called Visual Compliance that will provide updated information on export control regulations and will assist in determining if items are is controlled. As necessary, OSP staff will work with PIs to complete Technology Control Plans (TCPs) or License requests.
Technology Control Plans (TCPs) are project-specific plans that establish procedures to secure controlled items, including technology and information, from use and observation by unlicensed non-U.S. citizens and is signed by the PI.
Waivers of export control requirements are provided for in the regulations as either “exemptions” (ITAR) or “exceptions” (EAR), but they must be authorized by either the Department of State (for ITAR) or the Department of Commerce (for EAR). No other federal agency has the authority to waive the export control regulations on behalf of State or Commerce.
Keep in mind when you are planning to travel abroad that taking equipment, such as laptops, may require a license for controlled technology loaded on the computer. Financial transactions and information exchanges may be restricted.