Awareness of export control laws and regulations at all stages of any research project (sponsored or non-sponsored) is important. Consider the following as it relates to your research before work begins:
- Are there any publication restrictions or restrictions on foreign national participation?
- Does the work involve a US sanctioned/embargoed country (click here for a current list)?
- Are troublesome clauses in the agreement (e.g., clauses that restrict the release of information, clauses that restrict foreign nationals)?
- Is there a Non-Disclosure Agreement (NDA), Proprietary Information Agreement (PIA), or Confidentiality Agreement (CDA)?
- Will there be collaboration with foreign persons or entities or will research be conducted in a foreign country?
- Is there evidence that export controlled information or items will be part of the research? (Contract terms, scope-of-work, RFP, guidance, etc.)
- Does the project involve foreign travel or physical exports to a foreign country?
- Does the project involve the transfer of export controlled information or items, or is there a possibility the work may become controlled?
If any of the answers to the questions are “yes,” export compliance is an issue. Work closely with Office of Sponsored Projects and Office of Research Integrity for additional guidance to ensure compliance in your work.
Foreign National Participation in Research
There is a high likelihood that foreign students and researchers will be participating in fundamental research in an academic setting. There also is a particular fear on the part of the Federal government that these foreign researchers and students may be a conduit to other individuals in their native countries who may be less likely or unable to pass the scrutiny imposed by the visa process and by the Customs Office to enter the United States.
In contrast to “exports,” which are defined as actual shipment of any covered goods or items outside the United State, “deemed exports” are transfers of controlled technology to foreign persons, usually in the U.S., where the transfer is regulated because it is “deemed” to be to the country where the person is a resident or a citizen. Such technology may be released for export through:
- Visual inspection by foreign nationals of U.S.-origin equipment and facilities;
- Oral exchanges of information in the United States or abroad; or
- The application to situations abroad of personal knowledge or technical experience acquired in the United States.
For example, the transfer of GPS technology to a Syrian national in the U.S. may be regulated as if the transfer of the technology were made to the Syrian national in Syria. The transfer is thus “deemed” to be to Syria even though all activities take place in the U.S.
Under the policies of most research institutions, foreign faculty, students, staff, and scholars may not be singled out for restrictions in their access to educational and research activities. Nor will the institution agree to restrictions on publication of research results, other than a short period (generally 30-60 days) for sponsor review (but not approval) of proposed publications to remove inadvertently included proprietary information provided by the sponsor or to seek patent protection. Failure to follow such a policy will destroy the institution’s fundamental research exclusion and, without this protection, EAR or ITAR will then apply to information (technology or technical data) concerning controlled materials or items. Unless a license exception applies, a “deemed export” license may be required before the information is conveyed (even visually through observation) to foreign students, researchers, staff, or visitors on campus, and an actual export license will be required before the information is conveyed abroad to anyone.
Research – It is important to determine if the research qualifies for the Fundamental Research Exemption (FRE). The Export Control Compliance Review Flow Chart may be used as a tool in this analysis.
Faculty should be sensitive to information found in proposal preparation documents — RFPs, RFAs, etc. — and collegial discussions suggesting that the proposed research might be export controlled. When in doubt, ask the program contact. Knowing this early on and collaborating with your Contract Negotiator can save time in negotiations and avoid delays. Please recognize that it is important to allow ample time for contract negotiations/review.
Contract Negotiators should include documentation in each contract file that agreements have been evaluated for FRE applicability. A review of contracts for export controls is essential prior to the commencement of contract negotiations. Contact Office of Sponsored Projects as necessary during this analysis process or if restrictions apply to the agreement that void the FRE.
Grant Managers should evaluate grant awards for the inclusion of ‘non-standard’ grant terms and conditions that restrict the ability to publish, the participation of foreign nationals, or restrict access to project materials or technology. Contact Office of Sponsored Projects prior to accepting the award if such restrictions apply to grants or cooperative agreements.
Foreign Collaborations – it is recommended that any known foreign entities and foreign contacts involved in the contract/agreement/grant/research, etc. should be screened for denied persons before negotiations, when there are amendments, new task orders, changes, etc. to determine if there are any denied parties involved. A denied persons screening only takes seconds and can be performed by your Sponsored Projects administrator.