DRI is subject to a wide variety of complex federal regulations prohibiting the export of software, technology and certain other materials outside the U.S. or providing them to foreign nationals. Please be aware of these regulations. Violations can result in jail time and very high fines.
Export control laws are federal regulations that control the conditions under which certain information, technologies, and commodities can be transmitted overseas to anyone, including U.S. citizens, or to a foreign national in the U.S. These laws are implemented by both the Department of Commerce through its Export Administration Regulations (EAR) and the Department of State through its International Traffic in Arms Regulations (ITAR).
Export control laws have the potential to substantially impact Desert Research Institute researchers. If research involves specified technologies, the EAR and/or ITAR may require DRI to obtain prior federal approval before allowing foreign nationals to participate in the research, before partnering with a foreign company, or before sharing research results in any manner (including by publication or presentation at conferences) with persons who are not U.S. citizens or permanent resident aliens.
Export regulations apply whether or not the recipient is funded by a grant, contract, or other agreement, and apply whether or not the EAR or ITAR are cited in the award document. If a researcher accepts export-controlled technology or information from a government agency or from industry, the researcher is subject to ITAR or EAR regulations.
Most DRI activities are excluded from export controls because of a general exception for "fundamental research" under the export control regulations. By not accepting any restriction on publication or foreign nationals, DRI protects the fundamental research exemption.
It is important that faculty understand their obligations under the regulations and follow them. The consequences of violating the regulations can be severe including the loss of research funding, personal fines, and/or prison time. DRI will assist investigators to comply with export control laws, but the primary responsibility for compliance rests with the principal investigator of the research.
What is export control?
The laws prohibit the unlicensed export of certain materials or information for reasons of national security or protection of trade. Most exports do not require government licenses. Only exports that the U. S. government considers "license controlled" under the EAR and/or ITAR require licenses. Export controls usually arise for one or more of the following reasons:
- The nature of the export has actual or potential military applications or economic protection issues
- Government concerns about the destination country, organization, or individual, and
- Government concerns about the declared or suspected end use or the end user of the export
Generally, an export includes any: (1) actual shipment of any covered goods or items; (2) the electronic or digital transmission of any covered goods, items or related goods or items; (3) any release or disclosure, including verbal disclosures or visual inspections, of any technology, software or technical data to any foreign national; or (4) actual use or application of covered technology on behalf of or for the benefit of a foreign entity or person anywhere.
The term "export" can mean not only technology leaving the shores of the United States (including transfer to a U.S. citizen abroad whether or not it is pursuant to a research agreement with the U.S. government), but also transmitting the technology to an individual other than a U.S. citizen or permanent resident within the United States (a "deemed export"). Even a discussion with a foreign researcher or student in a DRI laboratory is considered a "deemed export." Export controls preclude the participation of all foreign nationals in research that involves covered technology without first obtaining a license from the appropriate government agency.
When an item is controlled, a license may be required before the technology can be exported. This requirement relates not only to tangible items (prototypes or software) but also to the research results themselves.
There are certain countries where it is the policy of the United States generally to deny licenses for the transfer of these items. These countries are currently Afghanistan, Armenia, Azerbaijan, Belarus, Cuba, Iran, Iraq, Libya, North Korea, Syria, Vietnam, and the Former Republic of Yugoslavia (Serbia and Montenegro).
What is the fundamental research exclusion for universities?
Even if an item appears on one of the lists of controlled technologies, generally there is an exclusion for fundamental research (as long as there are no restrictions on publication of the research or other restrictions on dissemination of the information) or, in some cases, as long as the research or information is made public or is intended to be made public.
Fundamental research, as used in the export control regulations, includes basic or applied research in science and engineering where the resulting information either is ordinarily published and shared broadly in the scientific community or where the resulting information has been or is about to be published. Fundamental research is distinguished from proprietary research that results in information that is restricted for proprietary reasons or pursuant to specific U.S. government access and dissemination controls. Research will not qualify as fundamental research if (1) the institution 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 or to insure that publication will not compromise patent rights of the sponsor; or (2) the research is federally funded and specific access or dissemination controls regarding the resulting information have been accepted by the university or the researcher.
What is considered published information as used in the definition of fundamental research?
The EAR and the ITAR approach the issue of publication differently. For the EAR, the requirement is that the information has been, is about to be, or is ordinarily published. The ITAR requirement is that the information has been published.
Information becomes "published" or considered as "ordinarily published" when it is generally accessible to the interested public through a variety of ways. Publication in periodicals, books, print, electronic or any other media available for general distribution to any member of the public or to those that would be interested in the material in a scientific or engineering discipline. Published or ordinarily published material also includes the following: readily available at libraries open to the public; issued patents; and releases at an open conference, meeting, seminar, trade show, or other open gathering. A conference is considered "open" if all technically qualified members of the public are eligible to attend and attendees are permitted to take notes or otherwise make a personal record (but not necessarily a recording) of the proceedings and presentations. In all cases, access to the information must be free or for a fee that does not exceed the cost to produce and distribute the material or hold the conference (including a reasonable profit).
What is public domain?
Public domain is the term used for "information that is published and generally accessible or available to the public" through a variety of mechanisms. Publicly available software or technology is that which already is, or will be, published.
Export Administration Regulations (EAR), Title 15, sections 730-774 of the Code of Federal Regulations (CFR) are promulgated and implemented by the Department of Commerce. The EAR regulates the export of goods and services identified on the Commodity Control List (CCL), Title 15 CFR section 774, Supp. 1. The EAR and CCL are available online at http://www.access.gpo.gov/bis/.
International Traffic in Arms Regulations (ITAR), 22 CFR sections 120-130, are promulgated and implemented by the Department of State and regulate defense articles and services and related technical data that are identified on the Munitions Control List (MCL), 22 CFR § 121.1. The ITAR and MCL are available online at http://www.pmddtc.state.gov/regulations_laws/itar.html.
- What are Export Controls?
Export Controls refer to an array of complex federal regulations prohibiting the export of certain materials, software or technology outside of the U.S. to enforce sanctions/boycotts imposed against specific countries based on reasons of foreign policy, national security or international trade agreements.
Export Controls also restrict “deemed exporting” which is the disclosure of controlled information and technology to foreign nationals both within the U.S. and outside the U.S.
While Export Control regulations primarily focus on information and technology related to military use or dual use (has civil and military applications) other information and technology can fall under the Controls due to the complexity of the regulations and the fact that three different Federal Agencies have Export Control regulations.
- What are the penalties for violating Export Control regulations?
Violations of Export Control regulations can result in jail time as well as financial penalties… as high as $1 million or more.
- Do Export Controls apply to DRI activities?
The regulations are applicable to all activities-research, teaching, and public service.
- How do Export Controls affect my work at DRI?
You may be subject to Export Controls if any of the following are true:
- You have contact with foreign nationals inside and/or outside of the United States (via foreign travel, providing tours, visiting collaborators, as employees, etc.);
- You use controlled or dual use equipment or technology (technology or equipment having military applications);
- Your sponsor restricts the publication of the project results including requiring prior approval before publishing; or
- You ship equipment outside of the U.S.
A foreign national is anyone who is not a US citizen or a lawful permanent resident alien of the US (a “green card holder”).
- Does this mean I cannot hire a foreign national?
The hiring of foreign nationals is not prohibited by Export Control regulations but certain conditions and precautions must be considered:
- The foreign national must be properly documented for work in the United States-i.e. possess the appropriate visa;
- The foreign national must not be on the denied persons lists;
- Depending on the foreign national’s country of citizenship, the foreign national may be restricted from having access to certain equipment or technology. This means that even if your activities are unregulated under Export Controls, the activities of faculty down the hall may be restricted and access to their technology/equipment needs to be limited;
- If the employment requires the foreign national to have use of controlled technology or equipment, one or more licenses may be required; and/or
- If your grant restricts the hiring of foreign nationals you should mention that in the job description.
- What do I need to do in order to ship equipment/software out of the country?
Each piece of equipment shipped out of the country must contain, by law, an ECCN (Export Control Classification Number) on the shipping documents. Because this often takes time to determine, it is important to allow at least a minimum of a week for staff to gather the information required for the documents. Note: Should your export require a license, it may take several months to obtain.
- Examples of Equipment used by DRI that may be subject to export controls:
Lasers, underwater cameras, ground penetrating radar, spectrophotometers, GPS systems, propulsion systems, radiation monitors, computers, particle counters, amplifiers, measurement and control systems and even nitrile gloves (yes really), etc.
- Exemptions from Export Control requirements
- Fundamental research exemption - applies to research results, not the equipment used to conduct the research. This applies only when the research results will be published in the public domain.
- Public Domain - applies when the information, equipment is readily available in the public domain, however, even if in the public domain we are not allowed to transfer technology to certain embargoed countries.
- What steps is DRI taking to ensure compliance?
- Providing training at several different levels of expertise:
- Faculty and Staff-general knowledge (what are they, who do I go see),
- Business Managers-higher level of knowledge to be able to handle most issues,
- Compliance Office-expert knowledge to assist when needed.
- Identifying specific projects subject to export controls. Your business manager will be contacting you regarding projects that raise concerns.
- Identifying controlled (sensitive) equipment and technology and assigning ECCN codes.
- Screening of vendors, employees and sponsors for denied persons list.
- Please provide HR with the names of any volunteers, visitors (for more than a typical 3 hour tour), so they can be screened.
- When using your purchasing card, please be aware of where the company is located and if there is a potential challenge, bring it to your business manager’s attention.
- Requiring the use of a designated shipper when shipping items outside of the United States.
- Working on an online foreign travel request form that will ask pertinent export control questions to assist faculty in complying while traveling abroad. This is probably a few months away.
- Isolating controlled technology from the general public by keeping it in restricted access areas.
- What do I need to do in order to comply?
Please consult with your business manager if:
- You are shipping anything into or outside of the United States;
- Your project limits your ability to publish your research results; or
- Your activities involve communications with a foreign national.
|DRI Commitment Statement|
|Export Controls Policy (PDF of information on first page)|
|Export Controls FAQ (PDF of FAQ on second page)|