Export control laws are U.S. laws that were developed for foreign policy and national security reasons. They regulate the distribution of strategically important technology, services, and information to foreign nationals and foreign countries. The academic community must take specific steps to protect their research involving military and dual use application. In addition, financial and other transactions with certain countries, companies and individuals fall under export control laws. Failure to comply with export control laws may have serious consequences for both SIUE and you. The consequences for noncompliance are very serious for both the university and the researcher. Criminal penalties up to 30 years in prison and $10,000,000 in fines can occur for the most serious violations. Civil penalties can range from seizure and forfeiture of articles, revocation of exporting privileges and fines of up to $1,000,000 per violation.
"Export" is defined not only as a physical transfer/disclosure of an item outside the US, but also as a transfer/disclosure in any form of a controlled item or information within the US to anyone who is a foreign national (not a US citizen or permanent resident). As a result, unless an exclusion or exemption is available, the university may be required to obtain prior governmental approval (in the form of an export license) before allowing the participation of foreign national faculty, staff, or students in affected research.
Additionally, laptops, PDA's/cell phones, digital storage devices, data, and software are subject to federal export controls regardless of why you are traveling even when your travel is not for SIUE-related business. Therefore, you must qualify for an exception or you may be required to obtain an export license. You should not take SIUE-owned equipment internationally except on SIUE-related business.
Basically, any research activity may be subject to export controls if it involves the actual export or "deemed" export of any goods, technology, or related technical data that is either 1) "dual use" (commercial in nature with possible military application) or 2) inherently military in nature.
As the PI, you have the best understanding of your research and therefore the best information as to whether the particular technology, data, or information involved in that research is or may be covered by export control regulations. You are responsible for doing the following:
• You should carefully review the information on export controls provided on this web site.
• Before preparing a proposal or beginning any research, you should determine whether there may be any export control issues to address. You should coordinate with the research office regarding your research and the provisions of the proposal solicitation and/or award agreement in order to determine if there are potential issues.
• If any such issues are identified, or if any question exists, the research office will work with you to determine whether any export control restrictions may apply to the research.
• If it is determined that export controls apply to the project, you must adhere strictly to any applicable restrictions and cooperate fully with the university's efforts to monitor compliance.
• After work on the project has begun, you should notify the research office prior to implementing any changes that may give rise to the application of export controls, such as a change in the scope of work or the addition of new staff to the project.
The following situations must be reported immediately to the research office:
Sufficient information must be provided to allow the university to pursue an appropriate course of action. If a potential violation has been reported, the matter will be handled by the individual university research offices in consultation with the Office of General Counsel.
Is there any easy way to distinguish between what is classified as an EAR vs. ITAR item for export license purposes, such as a laboratory research tool? What if the classification is not clear from the use of the vendor’s specifications?
A: Notify the Export Compliance Focal Point for your lab/division, or SIUE’s Export Control Administrator at least 30 to 60 days prior to your intention to export so that compliance requirements can be resolved.
There are two primary concerns:
1) Export recipients must be screened against the U.S. Government’s restricted party watch-lists.
2) The export of an item, data or software may require an export license.
If the export administrator determines that the item requires an export license, you will need to wait until we have the license. In any case, you will need to wait until the export administrator has completed watch-list screening. Screening itself normally only requires approximately 48 hours to process. Absent any screening concern and no license requirement, an export can proceed immediately.
A: No; the method of export has nothing to do with whether a license is required.
A: Licenses are normally issued within 30 to 60 days from the date an application is submitted.
Normally and, subject to certain exceptions, it is not difficult to obtain a license. Upon obtaining the necessary details about the export (e.g., nature of the item, purpose/end use, destination, and end user) our export administrator prepares and files the appropriate type of license application (dual use –EAR license) or defense categorized - ITAR license). The license application is filed through one of the on-line U.S. Government agency portals, and the administrator is able to track the government’s approval process. Licenses are normally issued within 30 to 60 days.
Note that where the Government finds the proposed export to have particular national security, biological safety, or nuclear or missile technology implications, the applicable Government agency can deliberate longer over the issuance of the license, referring it for inter-agency review or requesting SIUE to provide specific details. Hence, it is critical to allow sufficient time prior to intended export, for the license application to be processed.
Where the license application is intended to cover the provision of a defense service under the ITAR, (i.e. the release in any manner of ITAR technical data to a foreign national or training or assistance to a foreign national using ITAR data), this type of ITAR license called a Technical Assistance Agreement or TAA, can take longer to prepare and longer to process.
All export licenses and authorization carry provisos or conditions which are the Government’s specific restrictions or limitations on the export activity. For example, the Government may require that the recipient of the export provide a Letter of Assurance that they will not transfer or re-export the item beyond the originally licensed country destination. Limitations on the duration of the license, or on access by foreign nationals from certain countries may also apply. Failure to adhere to these provisos results in an enforceable export violation.
A: Not necessarily.
Under the EAR dual use regulations, license requirements are on an item by item, country by country basis. As such, your particular item may or may not require a license. Under the ITAR defense regulations, exports to all countries presumptively require a license and, in some cases, depending on the country, the State Department will not, as a matter of policy, issue a license. For example, China is per se a prohibited country under the ITAR USML regulations: the State Department will not consider issuing a license of a USML item to China. There are approximately 10 other countries that are likewise prohibited under ITAR. Therefore, it is essential that all exports be cleared by the export administrator.
A: In some cases, yes.
The answer depends on the export control jurisdiction of the item, as follows:
Scenario A: EAR dual use items: if the equipment does not require a license to export it to any country, then no, the temporary export does not require a license. If on the other hand, the item would normally require a license to export abroad, a specific license exemption such as the “Tool of Trade” exemption must apply to the temporary export or otherwise a license is required. [Note: the Tool of Trade exemption itself has numerous qualifications based on type of export, destination, and duration of export. Hence, it can only be used when all requirements are met.]
Scenario B: ITAR USML items: Yes: a DSP73 license is always required, even if I’m only sending or transporting the ITAR equipment to international waters or airspace (i.e. not landing it any particular country); there is no Tool of Trade exemption under the ITAR.
A: You will likely need to obtain two licenses.
The ITAR item will require a DSP license, depending on the purpose of the export; the EAR item may require a separate license if controlled under the EAR. EAR items incorporated into ITAR items, lose their EAR identity: the entire item gets classified under ITAR. ITAR items incorporated into EAR-controlled or otherwise non-licensable items (No License Required) render the entire assembly ITAR, by virtue of the “see-through” rule under the ITAR regulations.
A: When I release ITAR-classified technical data to a foreign national (including foreign national students or visitors on campus, off campus, or abroad), this constitutes a defense service, requiring a license prior to such activity. In addition, providing technical assistance or training to a foreign military organization in the U.S. or abroad constitutes a defense service, regardless of whether the data or information being transferred is EAR or ITAR-governed. In these instances, it is necessary to first obtain a TAA from the State Department prior to releasing the data or conducting the activity.
A: Absolutely not.
Where we are teaching or discussing any item in the public domain which happens to be listed on the USML or we have self-invented such information during the course of fundamental research with the intention to publish it, there is no license requirement. The license requirement applies when we are exporting ITAR data which we have received from a sponsor (government or industry) or research collaborator (government, industry, or research institution) under a restricted agreement i.e. it is explicitly export controlled, and does not qualify as fundamental research intended for the public domain.
A: When in doubt, refer the evaluation to the export administrator.
Typically, our research instruments are not categorized under the USML; however, as noted earlier, they may be dual-use controlled under the EAR and hence require a license. Where an item is specifically designed or modified for defense purposes as defined under the USML, it is likely ITAR-classified. When an item is procured, this designation may be referenced in the vendors’ Operation Manual or sales documentation, though not always. Research institutions transferring ITAR items during the course of collaborative research do not always identify such items as ITAR controlled, unless the Material Transfer Agreement so requires. Bottom line: you cannot tell whether an item is EAR or ITAR controlled merely by looking at: if there is any doubt, refer the evaluation to our export administrator who will assist in the classification for license purposes.
A: Yes. Commercial availability does not remove an article from export jurisdiction and a potential licensing requirement.
All imported items are subject to U.S. Customs regulations, and may have Customs duty and reporting requirements. In addition, importing items listed on the USML require an ITAR license, unless certain specific exemptions are met.
A: In some cases, yes.
Assuming the Fundamental Research Exclusion (FRE) applies to the activity in which EAR-classified equipment is being accessed, generally speaking no license is required. However, there are some narrow exceptions to this rule: access to a) certain levels of advanced cryptographic functionality and source code; and b) proprietary third party proprietary “use” and “development” technology pertaining to the equipment if it in fact is controlled.
A: In some cases, this will also be licensable.
As with the above scenario, unless the situation aligns to one of the FRE exceptions, access to technical data related to operating EAR equipment does not constitute a licensable deemed export.
A: If you’ve invented the item and publish the results of your invention, there is no access restriction, since it was created under the Fundamental Research/Public Domain exclusion. However, if you’ve purchased the item or otherwise received it from a third party (i.e. proprietary technology) and it is not already in the public domain, then access to or use of the item that allows the foreign national insight into how it works (directly or by virtue of controlled technical data) is restricted and subject to license authorization; in this case, while a license application is pending or if no license is applied for or approved, the ITAR item will require a Technology Control Plan to restrict access by foreign nationals.
See ”How does having an ITAR item in my laboratory affect foreign national (student, post doc, H1) access to it?” The same rule applies to ITAR technical data (not self-invented) that exists in any form (soft or hard copy), conversational release of data, blue prints, manuals, etc.
A: Yes, with one exception that can be utilized with the assistance of SIUE’s export administrator.
There is one narrow exception under the ITAR which allows a PI access to ITAR technical data where the PI is a bona fide, full time employee of the research institution and meets other specific criteria. Assuming the terms of this exception are met, the PI is subject to the same no-transfer restrictions that a U.S. person PI is subject to. Hence, this exception is used for accessing background information only necessary to launch or conceptualize contemplated fundamental research. If the research requires the data to be shared with the research team which may include foreign nationals, the exception cannot be invoked, since only the PI may qualify under the exception. PIs wishing to explore using this exception must contact SIUE’s export administrator prior to accessing any such data.
A: It depends on the situation.
If the research involves ITAR technical data and we are training or assisting the government representative to be able to use it in a defense context, this would require a “defense service” TAA. This applies even if the data is already in the public domain (this rule is currently being de-regulated by State, but is not yet law); i.e. data not yet in the public domain and provided to a foreign defense organization would still constitute a defense service, and require a TAA. (Note: even EAR-classified technical data being provided to a foreign defense organization for a defense purpose may constitute a defense service).
A: When teaching or presenting research results abroad, attending professional conferences etc., as long as what is being presented is the results of fundamental research intended for publication or to be published, there is no export license requirement. However, to the extent you depart from this framework and present in any form data which is proprietary to another party, or restricted by the sponsor’s contract or funding mechanism, then the FRE education and conference exclusions no longer apply. Note that when presenting at professional conference has to be one normally associated with the academic or professional subject at hand and not closed in a way that is contrary to the premise of published fundamental research.
A: Yes, with several exceptions.
If, for example, you happen to have export controlled data on your laptop (i.e. proprietary data which is not the results of fundamental research), this would require a license, depending on its EAR or ITAR classification. In addition, the U.S. Government’s OFAC restrictions prohibit the export by any means of any article (including laptops or hand held devices) to Cuba, Iran, Syria or Sudan without license authorization. See OFAC.
A: If EAR (dual use) controlled, such items may or may not qualify under the Tools of Trade exemption, and therefore require prior classification. If ITAR controlled, a license is likely required.
A: Yes, in several respects.
The exchange of scientific information with researchers and administrators abroad can trigger control requirements such as end user screening and export licensing for tangible items and software under ITAR and EAR control regimes (see also OFAC section below).
In addition, the ITAR regulations include controls on providing a “defense service.” This pertains to providing advice, training assistance, and other release of technical data to a foreign national with respect to an article on the USML or providing same to a foreign national for a military/defense objective with respect to any article, whether or not listed on the USML.
In addition, visiting scholars and researchers who visit SIUE as part of the collaboration will likewise need to be restricted from accessing SIUE laboratories wherein ITAR items or data are kept or used.
What if the fabrication and service activities are being conducted through an independently-owned spin-off entity, i.e. SIUE does not own the activity nor is it the entity disclosing any data being used?
A: Most definitely, yes. Where fabrication or contract service work is being conducted using the university’s physical or human resources (i.e. a separate legal entity does not own or house the activity), it is essential that the PI/Administrator leading or conducting such activity understand the export control implications and requirements prior to such activity occurring. Again, certain exemptions such as the ITAR bona fide employee exemption will not apply to this type of non-research/academic activity.
A: Where a SIUE PI or administrator has spun-off or is working for a separately organized company to perform contract services independent of his/her research or teaching position at SIUE, the activity conducted by this company cannot be conducted using the university’s physical resources (including laboratory space) or human resources (unless by separate contract). In these cases, such activity - - which is outside the scope of the university’s fundamental research exclusion - - may trigger export control requirements for which the University will not be legally responsible.
In such situations, it is necessary for the separate legal entity to seek separate counsel pertaining to export control compliance obligations. As noted above, the bona fide employee exemption under ITAR allowing a foreign national faculty member access to ITAR data does not apply or carry over to ITAR work or access to controlled instruments or data provided by and conducted through a separate proprietary entity.
A: The OFAC regulations pertaining to transactions with these countries vary by country. These regulations address not only export, but a much broader spectrum of activity (e.g., funding, service providing) that OFAC restricts absent specific license approval.
For example, the Cuba sanctions regulate personal travel to Cuba as well as professional research activity conducted with Cuba institutions here and abroad. That said, the Cuba regulations allow for broad range of research and humanitarian related activity when approved by license from OFAC. (See SIUE’s governance on activities pursued through the Cuban and Caribbean Center.)
The Iran regulations, on the other hand, do not regulate individual tourist travel to Iran, but remain highly restricted as to any activity, research or otherwise, which OFAC defines as a “service” to Iran. While certain kinds of collaborative research activity are permissible with Iranian institutions, to the extent such research contemplates the exchange of material items with Iran or, providing advice on establishing a laboratory or research facility in Iran, a license may be required. Likewise, peer review or editorial comment that extends beyond the scope of what is normally defined as credential input or scientific journal editorial review may likewise trigger a license requirement.
With respect to Syria and Sudan, because of the geopolitical instability in both countries, transactions with those nations likewise must be evaluated carefully for evolving sanctions and requirements.
Hence, when contemplating any research or transactional activity with one of these OFAC countries or foreign nationals known to reside in these countries, contact the Export Control Administrator for assistance before proceeding.
Any time you have a question about the application of export controls to any stage of a specific research project, contact:
Susan Morgan: firstname.lastname@example.org
Associate Dean for Research
Office of Research and Projects
Southern Illinois University Edwardsville
Rendleman Hall, Room 2202 Campus Box 1046
Edwardsville, IL 62026-1046
Phone: 618-650-2171-Fax: 618-650-3523