What are export controls?
Export controls regulations are federal laws and regulations that prohibit and restrict the release of unlicensed export of certain commodities, controlled technologies, information, and services to foreign nationals foreign countries for reasons of foreign policy and national security. Export controlled items may include (but are not limited to) equipment, software code, chemical and biological materials, and technical data. These laws and regulations, which include international sanctions programs, also restrict activities within certain countries and with designated institutions, entities, and individuals, even if no controlled items are involved.Export controls apply to virtually all fields of science and engineering and restrict both physical shipments and electronic transmission of information. These laws apply to all activities – not just sponsored research projects.
The goal of export controls is to protect national security interests, including promoting and protecting critical U.S. intellectual property and technology.
What do export controls regulate?
The export control regimes collectively cover items, information, and software considered to be important to U.S. national security and foreign policy. “Items” include products, equipment, devices, organisms, components, materials, etc. Additionally, these regulations also control equipment, materials, information, and software necessary for producing, developing, and using controlled items. Further, restrictions are also placed on certain countries with comprehensive embargoes, entities, and individuals as recipients of exports.
- Physical shipments of items to a foreign country or
- Transmission of controlled information out of the U.S., no matter the mode of transmission (i.e. Dropbox, email, courier, etc.)
- Releasing or otherwise transferring (including verbally or visually) controlled technology to a foreign person in the U.S. (a “deemed export ”)
- Transferring registration, control, or ownership of certain controlled items to a foreign person, or
- Use or application of controlled technology on behalf of or for the benefit of any foreign person or entity, either in the U.S. or abroad.
What don’t export controls regulate?
Research in economics, history, languages, linguistics, literature, mathematics, music, philosophy and political science is outside the purview of export control regulations. However, individuals working in these areas may still be using export-controlled items (e.g., computers with encryption software).The following categories of information are exempt from export controls:
- Fundamental Research: defined as “basic and applied research” in science and engineering. The results of Fundamental Research are ordinarily shared broadly within the scientific community. Research that falls under this exclusion may still be subject to export controls if it involves physical shipments outside the U.S. or creating tangible items/devices.
- Published (publicly available) information and Software: Information that is published and publicly accessible in books or periodicals or information that is presented at a conference, meeting, seminar, trade show or other open gathering is considered to be in the public domain. An open gathering is one in which members of the general public are eligible to attend and attendees are permitted to take notes.
- Published Educational Information: Most course material taught in U.S. universities is published in the course catalog and is not subject to export control regulations
What kinds of activities potentially trigger the need for an export license?
- Shipments of physical items outside of the U.S., such as research equipment, materials, and biologicals
- Research involving military technology, spacecraft, satellites, nuclear energy or export-controlled items or information
- Development of encrypted software
- Transfer of controlled information or equipment to foreign nationals in the U.S. or abroad (where no license exception applies)
- Presenting unpublished research/data (where no license exception applies)
- Traveling to a sanctioned or embargoed country
- Using any US Munitions List (USML) defense article or related technical data
Is any prepublication review by a research sponsor permitted under the fundamental research exclusion?
An award requiring “review and approval” makes the fundamental research exclusion inapplicable, since this language contemplates the potential denial of approval to publish . A brief prepublication review (e.g., 30 days), is permissible to confirm that any future publication would not inadvertently divulge proprietary information provided to the PI/researcher.
How do I know if a foreign national would be subject to the “deemed export” rule?
Any foreign national is subject to the “deemed export” rule, including all persons in the U.S. as tourists, students, business people, scholars, researchers, technical experts, airline personnel, salespeople, military personnel, diplomats, etc.The rule does not apply to a foreign national who is considered a “US Person” by virtue of:
- permanent resident status (i.e., a “green card” holder); or
- U.S. citizenship; or
- status as a “protected person” under U.S. law (i.e., refugees, asylees).
How is a foreign national citizen who has obtained permanent residence status or dual citizenship treated for export control purposes?
It depends on which regulations apply to the circumstances. Under Bureau of Industry and Security (BIS) guidance, only the latest citizenship or legal permanent residence is considered. The Directorate of Defense Trade Controls (DDTC), however, takes into account all of a person’s citizenships and country of birth and imposes the controls that correspond to the most restrictive citizenship.
Does a Northeastern professor planning to travel to a foreign country to work in a research laboratory need an export license?
Application abroad of personal knowledge or technical experience acquired in the U.S. constitutes an export of that knowledge and experience that is subject to export control regulations. Therefore, in certain technical areas, the professor may need to obtain an export license or otherwise qualify for a license exception, prior to working in the lab.
Do export controls apply even if there is no external funding sponsoring the activity?
Yes. Export control regulations apply regardless of the funding source.
I am planning an international research trip and plan to bring university equipment, including some supplies and a laptop. Do I need to worry about export controls?
Yes. Research Compliance will need to evaluate your itinerary (including any stop overs), the supplies and materials you plan to take, as well as any entities or persons you plan to collaborate with . If you are planning to go to a country that is listed on the University’s list of Countries with a Heightened Cybersecurity Risk, you will be asked to take a loaner laptop, per the University Policy on Travel to High-Risk & Sanctioned Destinations.
I would like to explore the possibility of travelling to or collaborating with a researcher in a comprehensively embargoed country. What do I need to do?
Contact Research Compliance at email@example.com well in advance of the planned research activities or travel. Research Compliance will perform a review of the activities and provide guidance and advice on next steps . An export license may be required for collaboration or travel to some destinations with a comprehensive embargo if a general license is not available. This license application process can take 3 to 4 months and approval is not guaranteed.
What is the Fundamental Research Exclusion/Exemption (FRE) and how do I know if it applies?
National Security Decision Directive (NSDD) 189) defines fundamental research as “basic and applied research in science and engineering where the resulting information is ordinarily published and shared broadly within the scientific community, as distinguished from research, the results of which are restricted for proprietary reasons or specific US Government access and dissemination controls . ”This directive establishes national policy for controlling the flow of science, technology, and engineering information produced in federally funded fundamental research at colleges, universities, and laboratories. NSDD 189 established that fundamental basic and applied research results (except certain encrypted source code) are exempt from export controls (EAR or ITAR) and thus may be shared broadly with non-U.S. persons without specific government authorization (i.e. an export control license). NSDD 189 allows U.S. persons to benefit from collaborations with a global community of scholars.
Northeastern does what it can to ensure that fundamental research activities are clearly defined as outside the scope of the EAR and ITAR, consistent with its commitment to the free and open exchange of ideas, but there are occasions when the exclusion does not apply, including when working on certain types of government contracts. Confidential technical information received from an outside party, such as a government or industry sponsor, generally does not fall within the fundamental research exclusion.
The Policy on Openness in Research* discourages researchers from accepting restrictions on publication or personnel access. Before a researcher accepts certain types of controlled unclassified information (CUI), such as export-controlled, or covered defense information, technical data, or agrees to publication or access restrictions, the researcher must consult Research Compliance to assess the risks and develop an appropriate Technology Control Plan.
*Research activities at KRI, LLC are exempt from this policy.
I am planning to explore a new research relationship with a non-US entity. What steps should I take to ensure I am not violating export control provisions?
Before you exchange technical information and explore specific research projects, please contact Research Compliance at firstname.lastname@example.org. Research Compliance will help you screen the entity to ensure there are no restrictions placed on that entity by the U.S. government. In addition, Research Compliance will confirm if you should expect any technical information to be subject to export controls as the relationship progresses.
How do export controls relate to research security?
Export controls are put in place to protect the U.S. economy and security. Often research security violations are associated with technology that would be controlled by either the EAR or ITAR regimes. Northeastern has several resources available on our Research Security & Integrity page.
Where can I go to learn more about export controls?
Whom should I contact about Customs Entry processing for equipment or supplies imported into the U.S. related to by research?
Please contact Dolliff & Co., Inc. for assistance with import/export issues. They hold a Customs Power of Attorney for Northeastern and can help with any of your shipments. Call Regina Minichello – 617-373-2157 . To save time, when you are ordering internationally, instruct the shipper to do these three things: (1) consign the shipment to Northeastern University; (2) notify Doliff & Co.; and (3) fax copies of shipping documents to Doliff & Co. You will be subject to fees associate with Customs Entry processing, generally a $125 entry fee, local delivery charges, and airline terminal charges. In some cases, there will need to be a bond (if the item is valued >$2000).Regina Minichello can help with all of that. Note that you will need to use a Northeastern Purchase Order for your transaction. This process is only available for university-approved business.