July 29, 2020

Export Controls

Overview

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.”

Note the definition of the following terms.

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, or a foreign embassy or affiliate.
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).
To regulate exports, "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. This means in addition to controlling international shipments of tangible items, these regulations control the transfer of technical data or technology to foreign persons anywhere – even in the United States and even on Mason’s campuses.

Export Controls for University Research

Export controls affect research development because the University is required to obtain prior governmental approval in the form of an export license before conducting the certain activities in certain situations. Some examples are listed below:

  • Allowing the participation of foreign national faculty, staff, or students in affected research projects (unless an exclusion or exception is otherwise available)
  • Presentation or discussion of previously unpublished research at conferences and meetings where foreign national scholars may be in attendance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

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

Please also click on the below drop downs for more information on the following topics:

The good news is that the overwhelming majority of the information we share at Mason is not controlled because it is not subject to the export regulations.  That means that the U.S. Government does not attempt to control who has access to that information. The most common instances are detailed in the "Export Control Exclusions" sections below. However, when they do arise, compliance with export controls is paramount, and work in the following areas is considered high risk:
  • Engineering
  • Space sciences
  • Computer Science
  • Research with encrypted software
  • Research with controlled chemicals, biological agents, and toxins
In addition to these fields, any of the following conditions 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
As a PI, 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 control issue. In short, U.S. export control regulations matter to you if:
  • You perform research
  • You collaborate with foreign colleagues (here or abroad)
  • You plan to travel outside the United States
  • You plan to travel to, or engage in activities involving countries, regions, or persons from areas subject to comprehensive economic sanctions (e.g., Cuba, Iran, North Korea, Sudan, Syria, and the Crimea region of Ukraine)
  • You need to ship or hand carry items, software, or information internationally
  • You need to pay someone in another country for items, services, or to reimburse expenses
To help ensure compliance, the Office of Research Integrity and Assurance (ORIA) will provide periodic trainings and seminars on export control regulations. The Office of Sponsored Programs (OSP) staff will closely monitor RFPs, proposals, award documents and other agreements to highlight potential export control issues. As necessary, OSP staff will also work with PIs to complete Technology Control Plans (TCPs) or License requests. George Mason 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.
The following are exclusions from or exceptions to the export control requirements:
  1. 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. Note the “fundamental research” exclusion can be removed for the following reasons: • Accepting restrictions on publication or release of information • Allowing sponsor approval rights on publications • Limiting access of foreign nationals to research • Entering into Non Disclosure Agreements (NDAs) that limit disclosure of information • PIs accepting “side deals” directly with a sponsor
  2. Educational Information – information commonly taught for instruction in courses and associated with general scientific, mathematical, or engineering principles. Again, this makes sense because, if anyone can enroll in a class at any university and learn the same concepts, there is no reason to control it. Be mindful, though, that the educational information exclusion only applies to commonly taught concepts. If you are working on cutting edge export controlled research and you want to use this research as an example in your class, talk to our office first so that we make sure you stay within the educational information exclusion.
  3. Publicly Available – information generally accessible to the public, such as information in libraries, bookstores, open seminars, and published patent information. This information is considered in the public domain, it is not subject to export regulations, and it is not controlled. For example, if you can find it in the library or at a bookstore, it’s not controlled.  If you think about why the government controls technology, then this makes sense.  There is no point in trying to regulate something which anyone can access. However, it is important to note the State Department has determined that information contained on internet sites is not necessarily considered to be in the public domain.
If the terms and conditions of an RFP, solicitation, or an award from a sponsor contain any of the following restrictions or limitations, there is a strong likelihood that the US Export Control Laws will apply. This list of questions is a summary of the indicators to watch for:
  1. Does the award specifically state that ITAR, EAR, or OFAC laws will apply?
  2. Does the award specifically state that the technology involved is export controlled?
  3. Has the sponsor specifically stated that the fundamental research exclusion otherwise available to universities does not apply?
  4. Does the technology or data involved have military, security, or intelligence applications? Does it appear on ITAR’s U.S. Munitions list?
  5. Does the technology, data, or material involved have a dual civilian and military application? Does it appear on the Commerce Department’s Control List? Does it have an ECCN?
  6. Does the research involve the use of encryption technology or encrypted software?
  7. Does the research involve classified, secured, or top secret materials?
  8. Will the PI be asked to maintain the confidentiality of sponsor information? Was an NDA or Teaming Agreement executed between the parties?
  9. Does the award contain any publication restriction or limitation? This can include the right of the sponsor to review all proposed publications beforehand.
  10. Does the award contain DFARS 252.204-7000, Disclosure of Information?
  11. Is the award funded by other than 6.1 or 6.2 Congressional appropriations?
  12. Does the award prohibit the involvement of foreign nationals? Are project participants limited to US citizens or legal resident aliens only?
  13. Does the award involve international travel?
  14. Does the award involve the shipment or export of technology, data, or materials outside the United States?
  15. Will collaborations with foreign consultants be required?
  16. Will the work involve a country that has been embargoed or sanctioned by either the State or Treasury Departments?
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), administered by 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.

Noncompliance

The consequences for noncompliance are very serious for both the University and the researcher. This is a complicated and evolving area of the law that is hard to navigate, and the consequences for getting it wrong are serious. Penalties apply to even single violations, and multiple violations from the same transaction can easily result in substantial penalties. For example, sanctions may include:

  • Fines up to $1.1 million
  • Imprisonment up to 20 years for individual researchers
  • Termination of export privileges on both the individual and institution
  • Suspension/debarment from federal government contracting
  • Loss of federal funding

University professors have also had their reputations damaged, careers ruined, and have dealt with emotional and financial stress simply because they were accused – but found to be innocent – of export violations. Therefore, although export controlled research represents only a small portion of the work we do at Mason, properly protecting export controlled technology is critical. 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.  When in doubt – please ask us for assistance in determining your export-related responsibilities.

How can I get more information?

If you have questions regarding export controls or think that your project may involve export controls, please contact Mason’s Associate Director of Export Compliance and Secure Research, Melissa Perez.  She is available to answer your questions, provide training, and assist you with compliance.  Please contact her at (703) 993-5522 or mperez21@gmu.edu (or use our export control general email address: export@gmu.edu).

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