Export control frequently asked questions
What are export controls?
Export controls are federal laws that restrict the flow of certain materials, devices and technical information to foreign countries and to foreign nationals residing in the US.
What are ways to make an export?
Under the export control regulations, there are two ways to make an export. The first and most obvious is to transport – mail, send, transmit, carry, etc. – equipment, information, technology, data, software or other materials to somewhere outside of the United States. The second is to allow access to such materials by an individual who is physically in the United States, but who is neither a U.S. citizen nor in the U.S. under a valid green card (foreign national) This is referred to as a “deemed export.” Deemed exports can also include “technical assistance” – i.e., training a foreigner in the use of technologies that are subject to export control.
How do export controls apply to a grant or contract?
It depends on both the technologies (i.e., the work scope) and the countries (either foreign destinations or foreign personnel) involved. The International Traffic in Arms Regulations (ITAR) applies if the subject of the research appears on the ITAR munitions list. Under ITAR, the country of destination is irrelevant; export of a controlled item to any foreign country or any foreign national would be in violation of the law. The application of the Export Administration Regulations (EAR) is more complicated. It depends on both the technology involved and the country of destination. So, for example, you might have a technology that can be exported to Canada but not Venezuela. In most cases, technologies are very precisely defined, and the definitions also affect the applicability of the law. So, for example, telecommunications equipment involving lasers that transmit at wavelengths above 1750 nm may be controlled, while similar equipment using a smaller wavelength may not. The Office of Foreign Assets Control (OFAC) applies to any interaction with a country prohibited by U.S. embargo. Although the export control regulations cover virtually all fields of science and engineering, universities and colleges do not need to obtain a license to transfer scientific, technical or engineering information to their foreign national students and faculty members if the information is in the public domain. Information is in the public domain if it is published and generally accessible to the public through unlimited and unrestricted distribution (e.g., published on a public website).
What happens if a project is subject to export controls?
There are a number of things that may happen if a project is subject to one or more export controls. First, Research Operations will attempt to craft an award document that will allow the work to be performed at ASU and to remain within the parameters of the “fundamental research exclusion.” We discuss the fundamental research exclusion in detail below. If the project cannot remain within the fundamental research exclusion, you must secure an export control license from the appropriate government agency before proceeding with the work. We also discuss the licensing process below. If the fundamental research exclusion does not apply and a license cannot be secured, you must revise the project to bring it under the fundamental research exclusion, secure the license or abandon the project.
What is the "fundamental research exclusion"?
Both ITAR and EAR include language that excludes “fundamental research” from export control. Using ITAR as an example, while the regulations restrict the flow of technical data they also stipulate (Sec 120.10) that the “definition [of technical data] does not include information concerning general scientific, mathematical or engineering principles commonly taught in schools, colleges and universities or information in the public domain as defined in Sec. 120.11.” Section 120.11, then, defines information in the public domain to include fundamental research, which “is defined to mean basic and applied research in science and engineering where the resulting information is ordinarily published and shared broadly within the scientific community.” But, per Section 120.11, Subsections 7(i) and 7(ii), the work is no longer considered “fundamental research” if:
- we accept restrictions on the publication or dissemination of scientific or technical data
- the work is funded by the U.S. government and access or dissemination controls are applied by the sponsor
Additionally, recall that the fundamental research exclusion is extracted from the provisions that exclude from “technical data” information that is in the public domain. Accordingly, the fundamental research exception applies only to data and information. The transport of equipment and other materials cannot be excluded under the fundamental research exclusion. However, as long as you can meet all three of the following criteria, your work falls within the fundamental research exception and ASU does not have to be concerned about export controls if:
- you are not exporting the actual technologies and
- you can freely present and publish the research and
- in the case of federally funded work, there are no access restrictions. You may need an export license.
What happens if I pursue a project without first obtaining an export license?
Violation of export control laws is a criminal matter. The penalties vary depending on the circumstances (notably, whether it was a “knowing” or “willful” violation), but the penalties for lesser violations include up to five years in jail and/or fines equal to $50,000 or five times the value of the export, whichever is higher. More severe violations can double the jail time and quadruple the fines. It is also important to emphasize that export control violations can be assigned to the individual. If you conduct a project that violates the export control laws without first getting an export license, there’s a very good chance that you, as an individual, could face fines and jail time.
What happens if I can’t conduct a project under the fundamental research exception?
You may require an export license. Contact us for assistance.
Do export controls only apply to sponsored research?
No. Export controls are U.S. laws that apply to all research and activities conducted at ASU, whether funded or not. Export controls may cross all academic fields including, but not limited to, engineering, psychology, biology, chemistry, decision sciences and education.
What can happen if I fail to comply with the export control laws?
Federal penalties for violating export control laws can be severe. Penalties can be applied to both the individual and the university, and can include:
- monetary fines - ranging from $10,000-$500,000 per violation
- prison sentences of up to 20 years
- loss of all federal funding to the institution
- loss of export privileges
In addition, violations may result in disciplinary action from the university and could include termination.