Resources for Departments - EC
FAQs - EC and Research
How do I know if Export Controls apply to a grant/contract?
Export controls apply if the topic of the research appears on either the ITAR Munitions List or the EAR Commerce Control List. ITAR places strict controls on the export of "defense articles" and "defense services." Defense articles include any item or technical data on the United States Munitions List (USML), and defense services include the furnishing of assistance to foreign persons, whether or not in the United States, with respect to defense articles, and the furnishing of any technical data associated with a defense article.
There is one crucial thing to remember:
You cannot depend on the contract terms to know whether or not export controls apply. Whether or not the agreement specifically invokes or refutes a particular export control regulation is irrelevant to the question of whether or not the export control applies.
The contract says, "This work may be subject to ITAR," but the work has nothing to do with anything on the ITAR Munitions List. Since the technology is not on the list, then ITAR doesn't apply.
The contract says, "This work is exempt from ITAR," but the work is researching defensive measures against biological weapons. This technology is on the ITAR Munitions List (Category XIV, Section C) so ITAR applies.
My research isn't sponsored by the Department of Defense, and it's certainly not classified. There's just a publication restriction. So why is my work subject to export controls?
Fortunately, most of the research at USF qualifies for the Fundamental Research Exclusion (FRE). The results of projects that are conducted under the FRE, with the intent to publish the results and in the absence of any other contractual restrictions, are generally excluded from export controls.
Unless your project is classified, has a military application, is funded by a foreign sponsor, restricts participation by foreign nationals, or has publication restrictions, you should have no export control worries. Of these conditions, publication restrictions may be the most puzzling and are the most common reasons for referral of projects for export review.
Not all publication restrictions are created equal. A sponsor requirement to pre-review a publication (to check for erroneously included proprietary information, for example) is a temporary delay and does not really constitute a restriction. If the sponsor will not allow publication at all or must approve publication, clearly that's a restriction, as is a requirement not to publish for an extended period of time. ANY restriction of USF's right to publish research results removes the fundamental research exclusion. Faculty should know that any "side agreement" with a sponsor to delay publication or to allow sponsor preapproval, also negates the fundamental research exclusion. Publication restrictions remove the FRE and render the project subject to export controls including both actual export and "deemed export," which forbids sharing of certain controlled information or technologies with foreign nationals and other non-U.S. persons in the United States.
What do I do if a sponsor begins providing export controlled information or technology to an award previously determined to be fundamental research?
This action is an indication that the direction of the research or some other factor has changed the project in some way to render the export control regulations applicable to this project and that, more than likely, the researcher's work will now be export controlled. The PI should reexamine the research, checking the ITAR/USML and EAR/CCL lists to see if the research falls under either of these lists. The PI should also notify the Office of Export Controls to report that the export control status has changed. The PI and the Export Control Officer will work together to document security measures to protect the export controlled information with a Technology Control Plan (TCP).
What is a Technology Control Plan?
Some research will be accepted that does not qualify for Exclusion, or involves ITAR/USML defense articles and associated technical data. In these instances, Office of Export Controls, prior to commencement of the research, is required to institute measures to safeguard the research and ITAR/USML articles and data. These measures are detailed in a Technology Control Plan, and include:
- Laboratory compartmentalization by reconfiguring lab space or work areas
- Time blocking by restricting times when export controlled research will take place
- Mark equipment and data as "export controlled" for identification purposes
- Exclude foreign national participation from the research or obtain worker licenses
- Implement physical safeguards to secure tangible items and data
- Implement computer safeguards to secure data
What triggers the requirement for a Technology Control Plan?
A Technology Control Plan (TCP) is required any time an ITAR-controlled defense article or technical data will be under USF's effective control. A TCP is also required for EAR controlled technical data, encryption technology, and source or object code under USF's effective control. Typically a TCP is not required to obtain and maintain EAR-controlled equipment or technology at USF; however, a license or valid license exception may be required for the physical export of that equipment or technology.
I am on an editorial board of a scientific journal and I have been asked to review a paper from an Iranian author. Is this allowed under the OFAC sanctions?
Yes, under the current federal regulations, Federal Register vol. 72, 50047-50052 (see section 560.538); all activities normally incident to publishing are allowed with Iranian citizens as long as the Iranian author is not a governmental official or working on behalf of the government of Iran. Academic and research institutions in Iran and their personnel are not considered governmental employees or representatives for the purposes of the regulations. This would be true for citizens from the other sanctioned countries as well.
Does the use of controlled lab equipment by foreign nationals constitute a deemed export?
It depends on the equipment. Use of a defense article by foreign nationals is prohibited, unless a license is obtained prior to "use."
Use of EAR/CCL items equipment) by a foreign national in the U.S. is not controlled by the export regulations. In the U.S., any person (including foreign nationals) may purchase export-controlled commodities and the "deemed" export rule only applies to technical information about the controlled commodity. As such, while the use of equipment inside the U.S. is not controlled, the transfer of technical information relating to the use (i.e., operation, installation, maintenance, repair, overhaul and refurbishing) of equipment may be controlled in certain circumstances. For example, if the manufacturer of the equipment provided the university some confidential, proprietary information about the design or manufacture of the equipment, then the university might need a "deemed" export license to provide such proprietary information to a foreign national, especially if shipment of the item to the home country of the foreign national would require an export license. The export regulations allow foreign students, researchers and visitors to "use" (and receive information about how to use) controlled equipment while conducting fundamental research on U.S. university campuses or while studying at the institution, as long as the technical information about the controlled equipment qualifies as "in the public domain" or "publicly available.
Are commercially-available items free from export control licensing requirements?
Yes, in most cases, low-end items that are commercially available do not require export licenses. There are some important exceptions including items containing strong encryption technology or software (e.g., laptop computers, or web-enabled cell phones), items that have dual use applications (e.g., high end GPS units), or that are restricted under other regulations or sanctions.
I will be submitting a proposal to the World Health organization. The study will take place in several different countries, including an OFAC sanctioned country. What do I need to do before I go?
Before anyone travels abroad for any reason, they should check to see whether the activities they plan to do abroad may be controlled for any reason or if there are any restrictions on the individuals or entities with whom the researcher will be interacting. Each embargo is different. At this time, the tightest embargoes are on Iran, Cuba, North Korea, and North Sudan. In addition, as with all research abroad, a restricted party screening should be done for any organizations, business entities, or individuals with whom a researcher knows he/she will be interacting.