Why Does the US Regulate Exports?

The United States regulates “exports” of certain equipment, software and technology in furtherance of national security interests and some foreign policy objectives. Among the most important reasons for these controls are deterrence of proliferation of weapons of mass destruction and to prevent transfer of sensitive and potentially dangerous technologies to supporters of international terrorism and other problematic end-users.

What is Governed by Export Controls?

Export Controls can apply to a wide range of research activities, regardless of the source of funding. Research projects involving the transfer of equipment and technology (including technical data and technological assistance) to foreign countries are potentially subject to export controls regulations.

Does a Physical Item Have to be Shipped Internationally for there to be an Export?

No.  The transfer or exchange of information about science and technology also can constitute an export that is potentially subject to export controls. In some cases, this transfer of information or technology to a foreign national is regulated even though it occurs inside the United States (i.e., a “deemed” export).

What Agencies Regulate Export Controls?
Exports are regulated primarily by three different federal agencies:

U.S. Department of Commerce - Bureau of Industry and Security

U.S. Department of Commerce Bureau of Industry and Security

  • Export Administration Regulations (EAR) regulate “dual use” articles, which are items and technologies with potential commercial as well as military or security applications (e.g., laser technologies, genetically modified microorganisms, GPS systems, and information technologies). Categories of such items are available through the Export Administration Regulations Database.

U.S. Department of State - Directorate of Defense Trade Controls

U.S. Department of StateDirectorate of Defense Trade Controls

  • International Traffic in Arms Regulations (ITAR) regulate defense articles and related services and technical data (i.e., items, information and services that are inherently military in character) that are identified on the U.S Munitions List.
  • It is important to note that commercially available items, such as night vision equipment, may fall under the jurisdiction of the State Department and ITAR.

U.S. Department of Treasury - Office of Foreign Assets Controls

  • The Office of Foreign Assets Controls (OFAC) administers and enforces economic and trade sanctions based on U.S. national security and U.S. foreign policy objectives. These regulations are not directed at specific technologies. The OFAC sanctions programs forbid the transfer of “anything of value” to certain embargoed countries, entities, and individuals. The OFAC website provides helpful information about country based sanctions programs [Sanctions Program Summaries] and also identifies those individuals and entities on OFAC’s list of prohibited parties – the Specially Designated Nationals list [SDN List].

What Specific Activities are Implicated by Export Restrictions?

Export restrictions often impact research activity. For example, a license may be required in order to:

  • Take a laptop computer or GPS system containing controlled software into a restricted country.
  • Ship certain research equipment outside of the United States.
  • Make a payment (including honoraria, or “anything” of value) to someone in or from one of the OFAC-embargoed countries.
  • Collaborate with a foreign national from embargoed countries or release certain technology or technical information to a foreign national while outside of the United States.
  • Allow foreign nationals from restricted countries to participate in certain research projects at universities in the U.S. if the research falls outside the scope of the “fundamental research” exclusion.

Does that Mean All Research Involving Foreign Nations Requires an Export License?

No. The GOOD NEWS about export controls is that much of the research activity conducted at universities in the United States does come within the scope of the “fundamental research” exclusion. In addition, in many of the cases listed above, an EXCLUSION or license exception will be available in order to export without applying for a license.

What is “Fundamental Research?”

Fundamental research is defined as research in science, engineering, and mathematics, the results of which ordinarily are published and shared broadly within the scientific community and for which the researchers have not accepted restrictions for proprietary or national security reasons. Fundamental research can be distinguished from proprietary research and from industrial development, design, production, and product utilization, the results of which ordinarily are restricted for proprietary reasons or specific, national security reasons.

Research conducted by scientists and students at a university normally will be fundamental research and therefore exempt from the export control regulations, as long as there are no access, dissemination, participation, or publication restrictions imposed by the sponsor.

However, if the university or the researchers accept restrictions on the publication of scientific and/or technical information resulting from the research activity, then the University based research cannot be considered fundamental research and therefore cannot be exempt from the export control regulations.

The initial transfer of information from a sponsor to university researchers is subject to EAR if the parties have agreed that the sponsor may withhold from publication some or all of the information provided.