Export control regulations, which govern the transfer of controlled items or information to foreign nationals or foreign entities, apply to all research activities. During the initial stages of project development, WSU investigators must ensure that appropriate measures have been taken to comply with export control regulations.
If you are conducting basic research at the University, your work may not be subject to export controls. As an accredited U.S. institution, the vast majority of university activities are shielded from the export control regulations under the Fundamental Research Exclusion (15 CFR§734.8). In addition, the regulations also relieve accredited U.S. universities from specific information that has been either published (15 CFR 734.7) or is educational (15 CFR 734.3(b)(iii)) in nature. The Fundamental Research Exclusion exempts studies that:
- are not export-restricted for proprietary or national security reasons
- have no restrictions on publication
- have no restrictions on access by foreign nationals
In short, if the Fundamental Research Exclusion does not apply to your activities, then they are subject to export controls.
Questions to consider when reviewing research for export controls
- Who are all the parties involved (sponsor, collaborators, subcontractors, consultants, vendors, etc.), and are any from sanctioned countries or subject to export denials?
- What is the anticipated end use of the research results?
- Is the technology related to items on the United States Munitions List or the Commerce Control List.?
- Will any material be shipped out of the United States?
- Will there be proprietary information transmitted?
- Will the research results be published or are there any limitations on publication?
- Will you be traveling overseas to perform research or present at a conference and will you be taking any equipment with you?
If you are exporting any materials or working with a foreign national or entity
- Complete the export controls decision tree.
- Upon completion, forward the results of the decision tree along with a brief description of your circumstance to ora.export@wsu.edu for further review. The Office of Research Assurances must review research projects for any potential export control considerations.
- Contact the Office of Research Assurances if you require additional information or further guidance.
What “export” means
The official definition of an export can be found in the federal Export Administration Regulations (EAR), part 734.13. To paraphrase, the term “export” means the following:
- Actual shipment or transmission of items, services, or technical data subject to either the EAR or the International Traffic in Arms Regulations (ITAR) out of the United States.
- Release of technology, software, or technical data subject to either EAR or ITAR to a foreign national in the United States. Technology, software, or technical data is “released” for export through any of the following means:
- Visual inspection by foreign nationals of U.S.-origin equipment and facilities
- Oral exchanges of information in the United States or abroad
- Application to situations abroad of personal knowledge or technical experience acquired in the United States
Fundamental Research Exclusions (FRE)
Fundamental research refers to basic and applied research in which the results are typically published and shared broadly within the scientific community with no restrictions. This is separate from proprietary research, which is restricted and is not shared broadly for proprietary or national security reasons. The research that most WSU faculty members are involved in is considered fundamental research and is not subject to the export control regulations.
Read more about Fundamental Research Exclusions and common pitfalls to watch for.
Most important regulations for researchers
EAR and ITAR control the export of certain commodities, software, technical data, and certain other information to foreign countries. They can restrict the furnishing of information, technical data, and software to foreign persons, either abroad or in the United States. While most university activities are not governed by EAR or ITAR, where these rules do apply they must be followed. Punishment for violations can be severe and may include fines, imprisonment, or both, as well as revocation of exporting privileges. Penalties apply to both the institution and the researcher.
Read more about the most important EAR and ITAR regulations.
Summary
- Export regulations are federal law. Don’t rely on the agreement terms to tell you when the export regulations will apply. (Some agreements can actually be misleading.)
- Never agree to offer indemnification for violations of the export regulations.
- If you think a project could be subject to export regulations, your first, best move is to make sure the work stays within the Fundamental Research Exclusion. This means:
- There are no restrictions (at all) on publications.
- If the funding is coming from the feds, there are no restrictions on the personnel we can use.
- Watch out for flow-down clauses that bring publication/personnel restrictions into the agreement. Some are obvious, others may be less so.
- Also remember that the FRE won’t apply to projects where we’re going to be producing and/or delivering an actual device, piece of equipment or other embodiment of the technology. The FRE only applies to information.
- If you DO need an export control license, apply before your project begins. Obtaining an export license will take 3-6 months and in some circumstances up to 1 year. Applying for an export control license does not guarantee you will be granted one.