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How to comply

Guidelines for researchers

 

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 Exclusion

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.

However, any time there are sponsorship restrictions on the publication of scientific and technical information of a project or activity, the research is no longer fundamental and may be subject to export controls. The Fundamental Research Exclusion applies only to the dissemination of research data and information, not to the transmission of material goods.

Additionally, please note that physical goods, software, encryption, research with no intention to publish results, and/or research conducted outside of the U.S. do not qualify for the Fundamental Research Exclusion.

Common pitfalls

Even if you conduct basic research to which the Fundamental Research Exclusion typically applies, certain seemingly benign circumstances could make your work subject to export control regulations. Watch out for the following:

Restrictions on publication of results or participation in the project

The definition of fundamental research looks not only to the nature of the work but also to whether or not there are any restrictions on publication of the results or participation in the project. Contract clauses, terms and conditions, or verbal agreements that forbid the participation of foreign persons, give the sponsor the right to approve publications resulting from the research, or otherwise restrict participation in the research or access to and disclosure of the results mean that a project is NOT fundamental research.

Sharing information with research collaborators abroad

The Fundamental Research Exclusion does not permit the transfer of export-controlled materials or items abroad, even to research collaborators.

Sharing “inputs,” to your research, as opposed to just results

The Fundamental Research Exclusion applies specifically to results of research. However, “Inputs”—technology or information received from a third party—remain export controlled. For example:

  • Confidential/proprietary information shared by a sponsor of the project

    It may be export controlled and should not be shared with foreign nationals without first conducting an export control review.

  • Deemed exports

    If you release technology or source code to a foreign national (no green card) in the U.S., and that technology is subject to the EAR, it is “deemed” to be an export to the home country of the foreign national. As such, it may be controlled or prohibited. Be aware of situations that could result in the release of U.S. technology or software to foreign nationals:

    • Tours of laboratories
    • Foreign students or professors conducting research
    • Hosting foreign scientists
    • Emails, visual inspection, oral exchanges

If you plan to hire a foreign national, consult the export control officer for guidance.

Document any exclusions that apply to your project.
Store records for 5 years.

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.

In the university context, these regulations can prohibit foreign persons from participating in research projects or having access to information resulting from research under some circumstances unless an export license has been obtained in advance.

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.

Export Administration Regulations (EAR)

Primarily control the export of dual-use technologies—for example, items that are used, or have the potential to be used, for military as well as non-military purposes—if such export could adversely affect the national interests of the United States. Items regulated include those on the Commerce Control List (CCL).

International Traffic in Arms Regulations (ITAR)

Controls items, services, and information designed or intended for use in defense applications. Items regulated include those on the United States Munitions List and the Missile Technology Control Regime (MTCR) Annex. ITAR is administered by the U.S. Department of State. In the Code of Federal Regulations, see 22 CFR Parts 120-130.

Office of Foreign Assets Control (OFAC)

Administers and enforces economic and trade sanctions based on U.S. foreign policy and national security goals. Administered by the U.S. Department of the Treasury, OFAC publishes several sanctions lists. OFAC regulations can be found in the Code of Federal Regulations: 31 CFR Parts 500-599.

Summary

  • Export regulations are federal law. Don’t rely on the agreement terms to tell you when the export regulations will apply. (The agreement 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 money 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.