UT Southwestern encourages exchanges of research and technology that are consistent with U.S. national security and nuclear nonproliferation objectives. Most research and technology development at UT Southwestern is exempt from U.S. export control regulations. Nevertheless, we comply with all applicable requirements for the security and transport of research materials, data, and personnel.
Federal Export Laws and Regulations Letter
U.S. Export Control Regulations
What are export control regulations?
Why are certain exports controlled?
What is an export?
How do the regulations affect research projects?
Export control license requirements
Who is considered a foreign national?
Export control issues regarding travel outside the U.S.
Countries of concern, per the regulations
Shipping items outside the U.S.
How foreign graduate students are affected by the export regulations
The penalties for unlawful export and disclosure
Does my project require a license?
Links to guidance
What are export control regulations?
Export control regulations are federal laws that prohibit the unlicensed export of certain commodities or information for reasons of national security or protections of trade. Export controls usually arise for one or more of the following reasons:
- the export has actual or potential military applications or economic protection issues; or
- the federal government has concerns about the destination country, organization, or individual; or
- the federal government has concerns about the declared or suspected end-use or end-user of the export
Most exports do not require government licenses. However, licenses are required for exports that the U. S. government considers "license controlled" under the following provisions.
The Department of Commerce's Export Administration Regulations (EAR) http://www.access.gpo.gov/bis/ear/ear_data.html (also known as the Commerce Control List) cover “dual-use” items, such as computers or pathogens, that are designed for commercial use but have the potential for military application.
The Department of State's International Traffic in Arms Regulations (ITAR) http://www.pmddtc.state.gov/consolidated_itar.htm (also known as the U.S. Munitions List) cover defense-related items and services.
In addition, the Treasury Department's Office of Foreign Assets Control (OFAC) administers and enforces economic and trade sanctions that have been imposed against specific countries for reasons of foreign policy, national security, or international agreements. Full descriptions of all countries currently subject to boycott programs are available at http://www.ustreas.gov/offices/enforcement/lists/.
Why are certain exports controlled?
- National Security
- Nonproliferation of Chemical and Biological Weapons
- Nuclear Nonproliferation
- Control Access to Missile Technology
- Anti-Terrorism (Cuba, Iran, North Korea, Libya, Sudan and Syria)
- Crime Control
- Limit Access to High Performance Computing
- Regional Stability
- Short Supply
- U.N. Sanctions
What is an export?
An export is any oral, written, electronic or visual disclosure, shipment, transfer or transmission of commodities, technology, information, technical data, assistance or software codes to
- anyone outside the U.S., including a U.S. citizen
- a non-U.S. individual, wherever they are (deemed export)
- a foreign embassy or affiliate
How do the regulations affect research projects?
Export control regulations prohibit the unlicensed export of specific technologies for reasons of national security or protection of trade. If University research involves such specified technologies, the University may be required to obtain prior approval from the Departments of State, Commerce, or Treasury before allowing a) foreign nationals to participate in the research, b) partnering with a foreign company, or c) sharing research information—verbally or in writing—with people who are not US citizens or permanent residents.
However, if you are doing “fundamental research” and the results will be in the public domain (see definitions below), you probably will not have any export control issues unless you have a foreign national working with controlled (found on the Commerce Control List (CCL) or the U.S. Munitions List) proprietary technology in conjunction with your research project.
“Fundamental Research” includes basic or applied research in science and/or engineering at an accredited institution of higher learning in the U.S. where the resulting information is ordinarily published and shared broadly in the scientific community. Fundamental research is distinguished from research that results in information which is restricted either for proprietary reasons or pursuant to specific federal government access and dissemination controls. University research does not qualify as Fundamental Research if: (1) the University accepts any restrictions on the publication of the information resulting from the research, other than limited prepublication reviews by research sponsors to prevent inadvertent divulging of proprietary information provided to the researcher by the sponsor or to insure that publication will not compromise patent rights of the sponsor; or (2) the research is federally-funded and specific access and dissemination controls regarding the resulting information have been accepted by the University or the researcher. The citation for the official definition of “Fundamental Research” under the EAR is 15 CFR § 734.8. The ITAR citation is 22 CFR § 120.11.
“Public Domain” (22 CFR 120.11) means information that is published and that is generally accessible or available to the public: (1) through sales at newsstands and bookstores; (2) through subscriptions that are available without restriction to any individual who desires to obtain or purchase the published information; (3) through second class mailing privileges granted by the U.S. Government; (4) at libraries open to the public or from which the public can obtain documents; (5) through patents available at any patent office; (6) through unlimited distribution at a conference, meeting, seminar, trade show or exhibition, generally accessible to the public, in the U.S.; (7) through public release (i.e., unlimited distribution) in any form (e.g., not necessarily in published form) after approval by the cognizant U.S. government department or agency; and (8) through fundamental research. The citation for the official definition of “Public Domain” is 22 CFR § 120.11.
Export control license requirements
Overview:
- An export license may be required before a controlled item or material may be exported.
- There usually is a lengthy processing time period (currently 2-3 months).
- Denial is possible.
- Approval may contain restrictive conditions.
- Researchers must not give foreign national(s) access to the controlled technology pending license issuance.
EAR License Requirements (Dual Use/Commercial Technologies)
- "Terrorist Supporting Countries" such as Cuba, Iran, Libya, North Korea, Sudan and Syria
- "Countries of Concern" such as the former Soviet Republics, China and Vietnam
- "Friendly Countries" such as all others (Europe, Central/South America, etc.)
ITAR Licensing Policy (Military/Space Technologies)
- Policy of Denial
-
- State Sponsors of Terrorism (Cuba, Iran, Libya, North Korea, Sudan and Syria)
- Arms Embargo (Burma, PR China, Haiti, Liberia, Somalia and Sudan)
- Others (Belarus, Iraq, Vietnam)
- Policy of Denial Based on Item/End-User
-
- Afghanistan, Congo, Iraq, Rwanda
Who is considered a foreign national?
A "Foreign National" is any person who is not a:
- U.S. Citizen or National
- U.S. Lawful Permanent Resident
- Person Granted Asylum
- Person Granted Refugee Status
- Temporary Resident
"Foreign National" includes:
- Persons in the U.S. in non-immigrant status (for example, H-1B, H-3, L-1, J-1, F-1 Practical Training, L-1)
- Persons unlawfully in the U.S.
Export control issues regarding travel outside the U.S.
Travel to most countries does not usually constitute an export control problem. Under the Export Administration Regulations (EAR), items such as laptop computers do not require a license except for travel to certain countries and, in most cases, a license exception is available. However, a laptop must remain under the “effective control” of the employee if the laptop has EAR controlled technology that would normally require a license. “Effective control” means you must keep the item in your physical possession or keep it secured in a place such as a hotel safe, a bonded warehouse, or a locked or guarded exhibition facility.
If you plan to take a laptop with EAR controlled technology, data, drawings, or certain encryption products (beyond the normal Microsoft Office Suite), the “tools of the trade” (TMP) exception to the license requirement must be claimed and documented officially (the controlled technology/information does not have to be on your laptop; it can be in your personal possession). Documentation must be obtained before you travel and a copy must be taken with you in case you are asked for verification at customs. This exception does not apply to technical data/technology that falls under the jurisdiction of the International Traffic in Arms Regulations (ITAR).
Travel to certain sanctioned countries requires a license from the Office of Foreign Asset Control (OFAC), and can, in fact, be denied. OFAC also has regulations regarding money transactions and the exchange of goods and services in certain sanctioned countries. A license would be required if you are taking an item found on the Department of State’s U.S. Munitions List (USML). A license would be required if you are providing a defense service (includes training) to a foreign person whether here in the U.S. or abroad. A license would also be required if you are supplying controlled (on the CCL) technology to a foreign person during a closed presentation or conference.
The Department of State, OFAC, and BIS have various lists of persons and entities with whom we are prohibited from doing business. We cannot provide them with a defense service (includes training), money, controlled (on the CCL) proprietary technology. Individuals can be fined by the relevant government agencies for doing business with any person or entity found on these lists.
Countries of concern, per the regulations
The Office of Foreign Asset Control (OFAC) has imposed sanctions on the following countries: Balkans, Belarus, Burma, Cote d’Ivoire (Ivory Coast), Cuba, Democratic Republic of the Congo Iran, Iraq, Former Liberian Regime of Charles Taylor, North Korea, Sudan, Syria, and Zimbabwe. Some of the sanctions are monetary in nature and others either prohibit shipping or require a license to ship. For example, the shipping of cotton seed to Iran requires a license or permission from OFAC. Please note: an item does not have to be military in nature to require a license for shipping. Keep in mind that foreign countries also have their own import regulations that must be followed.
The International Traffic in Arms Regulations (ITAR) also prohibits exports and sales to certain countries (22CFR126.1). It is the policy of the United States to deny licenses and other approvals for exports and imports of defense articles and defense services destined for or originating in certain countries. This policy applies to Belarus, Cuba, Eritrea, Iran, North Korea, Syria, and Venezuela. This policy also applies to countries with respect to which the United States maintains an arms embargo (e.g., Burma, China, Liberia, and Sudan) or whenever an export would not otherwise be in furtherance of world peace and the security and foreign policy of the United States.
Exports to countries that the Secretary of State has determined to have repeatedly provided support of acts of international terrorism are contrary to the foreign policy of the U.S.; therefore, it is U.S. policy to deny licenses and other approvals for exports and imports to Cuba, Iran, North Korea, Sudan and Syria.
Except for a few limited circumstances and on a case-by-case basis, it is the policy of the United States to deny licenses, other approvals, exports and imports of defense articles and defense services destined for or originating in Iraq, Afghanistan, Democratic Republic of the Congo, Haiti, Libya, Vietnam, Somalia, and Sri Lanka.
Shipping items outside the U.S.
Shipping items outside the U.S. may require a license from OFAC, the Department of State, or the Bureau of Industry and Security (BIS). An OFAC license takes six months to receive, a license from the Department of State takes two months, and a license from the BIS takes approximately two weeks, so allow plenty of time before you need to ship. Do not ship an item outside the U.S. without the proper license. If Customs were to audit your shipment, and a license was required but not in place, you and UT Southwestern could be fined.
How foreign graduate students are affected by the export regulations
In addition to actual shipment of a commodity out of the country, the export regulations also control the transfer, release, or disclosure to foreign persons in the United States of technical data about controlled commodities. The “deemed export” regulation states that a transfer of a source code or “technology” (EAR term) or “technical data” (ITAR term) to the foreign person is “deemed” to be an export to the home country of the foreign person. (See definition of “foreign national” above.)
Teaching faculty, research supervisors, and principal investigators who educate or supervise foreign national students, postdoctoral fellows, and staff must take care to convey to them only that information or technology which qualifies as “Fundamental Research” and/or is in the “Public Domain.” Where interactions with foreign nationals in the United States could involve verbal, written, electronic, and/or visual disclosures of controlled scientific and technical information an export control license may be required. Grant and award contracts may contain language that restricts release of certain components of the “technology” or “technical data” resulting from the research project. This is complicated further by the fact that, under U.S. policy, licenses are generally denied for “deemed exports” to nationals of certain embargoed or otherwise restricted countries/destinations (see “Countries of Concern” above), specific organizations, or “blocked” individuals.
It is the responsibility of the contract/grant awardee or Principal Investigator to ensure that a “deemed export” violation does not occur. For assistance in determining whether an export control license is required and/or can be issued, please contact Dr. Suzanne Rivera at suzanne.rivera@utsouthwestern.edu.
The penalties for unlawful export and disclosure
The consequences of violating export control regulations can be quite severe, ranging from loss of research contracts to monetary penalties to jail time. The following link will take you to summaries of recent enforcement cases: http://www.usdoj.gov/opa/pr/2008/October/08-nsd-959.html.
Does my project require a license?
Before accepting a research award, an institution should ask itself a few basic questions to determine whether it must obtain a license from the Commerce or State Department as a condition of conducting the research.
- Does the award contain any terms or conditions that would restrict the disclosure or dissemination of the research results?
- Are there any restrictions on access to or dissemination of information the sponsor or others will furnish for use on this project?
- If the answer to 1 or 2 is yes, does the research project fall under one of the export-controlled technologies?
- Does this project involve training specific personnel for a special purpose? If so, could it be considered a defense service? If yes, how can you proceed?
- Will the university need to apply for an export license?
To help you decide whether your project may require a license, please use the Stanford University Decision Tree: http://www.stanford.edu/dept/DoR/exp_controls/tree/tree_1.html .
If you think your project may require a license, please contact Dr. Suzanne Rivera at suzanne.rivera@utsouthwestern.edu.
Links to guidance
