What is an "export"?
Normally, an export is considered a tangible item shipped outside of the United States. In addition to actual shipment of a commodity out of the country, an export may also be the transfer, release or disclosure to foreign persons in the United States of technical data about controlled commodities. This release of controlled technical data or commodity is considered a "deemed export." The “deemed export” regulation states that a transfer of "technology" or "technical data" to the foreign person is "deemed" to be an export to the home country of the foreign person. Accordingly, for all controlled commodities, a license or license exception is required prior to the transfer of "technology" or "technical data" about the controlled commodity to foreign persons inside the U.S.
What is "fundamental research" and why is it important?
The export control regulations exempt from licensing requirements technical information (but not controlled items) resulting from "fundamental research." Fundamental research is defined as basic and applied research in science and engineering conducted at an accredited U.S. institution of higher education where the resulting information is ordinarily published and shared broadly within the scientific community. Such research can be distinguished from proprietary research the results of which ordinarily are restricted for proprietary reasons or specific national security reasons.
Research conducted by scientists, engineers, or students at a university normally will be considered fundamental research. The fundamental research exemption permits U.S. universities to allow foreign members of their communities (e.g., students, faculty, and visitors) to participate in research projects involving export-controlled technical information on campus in the U.S. without a deemed export license. Further, technical information resulting from fundamental research may be shared with foreign colleagues abroad and shipped out of the United States without securing a license.
What is "technology" or "technical data"?
The phrases refer to technical information beyond general and basic marketing materials about a controlled commodity. The terms "technology" and "technical data" mean specific information necessary for the development, production, or use of a commodity, and usually takes the form of blueprints, drawings, photographs, plans, diagrams, models, formulae, tables, engineering specifications, and documentation. The "deemed export" rules apply to transfer of such technical information to foreign nationals inside the U.S. They do not refer to the controlled equipment/commodity itself, or to the type of information contained in publicly available user manuals.
What is "published" information?
Information is "published" (and therefore not subject to export controls) when it becomes generally accessible to the interested public in any form, including: (1) publication in periodicals, books, print, electronic, or other media available for general distribution (including websites that provide free uncontrolled access) or to a community of persons interested in the subject matter, such as those in a scientific or engineering discipline, either free or at a price that does not exceed the cost of reproduction and distribution; (2) readily available at libraries open to the public or at university libraries; (3) patents and published patent applications available at any patent office; and (4) release at an open conference, meeting, seminar, trade show, or other open gathering held in the U.S. (under ITAR) or anywhere (under EAR). Note, a conference or gathering is "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 of the proceedings and presentations.
What is the fundamental research exemption?
The fundamental research exemption originated from the U.S. National Security Directive 189 (1985) which states: “It is the policy of this Administration that, to the maximum extent possible, the products of fundamental research remain unrestricted. It is also the policy of this Administration that, where the national security requires control, the mechanism for control of information generated during federally funded fundamental research in science, technology and engineering at colleges, universities and laboratories is classification. Each federal government agency is responsible for: a) determining whether classification is appropriate prior to the award of a research grant, contract, or cooperative agreement and, if so, controlling the research results through standard classification procedures; b) periodically reviewing all research grants, contracts or cooperative agreements for potential classification. No restriction may be placed upon the conduct or reporting of federally funded fundamental research that has not received national security classification, except as provided in applicable U.S. statutes.”
What kinds of controls in a government-sponsored research project would compromise the fundamental research exemption?
If the U.S. Government funds research and specific controls are agreed on to protect information resulting from the research, then information resulting from the project will not be considered fundamental research. Examples of "specific controls" include requirements for prepublication review by the Government, with right to withhold permission for publication; restrictions on prepublication dissemination of information to non-U.S. citizens or other categories of persons; or restrictions on participation of non-U.S. citizens or other categories of persons in the research.
What are “deemed exports”?
In addition to actual shipment of a commodity out of the country, the export regulations also control the transfer, release or disclosure to foreign persons in the United States of technical data about controlled commodities. The “deemed export” regulation states that a transfer of “technology” or “technical data” to the foreign person is “deemed” to be an export to the home country of the foreign person. Accordingly, for all controlled commodities, a license or license exception (such as the fundamental research exemption) is required prior to the transfer of “technology” or “technical data” about the controlled commodity to foreign persons inside the U.S.
What is not subject to the “deemed export” regulations?
Technical data that is "in the public domain" under ITAR or "publicly available" under EAR, including "fundamental research", is not subject to deemed export controls. Accordingly, the compliance plan at Drexel is based largely upon insuring that research results generated at the University meet the standards for "publicly available" thereby avoiding the necessity of securing a license prior to dissemination of information to foreign nationals involved in the research, including graduate students, post-doctoral scholars, and visiting scientists. For University-based research, there are three different ways that the technical information may qualify for an exemption from the deemed export regulations. It is exempt if it:
- Is published or disseminated
- Arises during, or results from, fundamental research or
- Is educational information (as described at 15CFR734.9 and 22CFR120.10(a)(5)) released by instruction in catalog courses or associated teaching laboratories of academic institutions.
What must Drexel researchers do to adhere to the university’s export compliance plan?
Drexel faculty and staff must take the following steps to assure that they do not violate the export regulations and become personally liable for substantial civil and criminal penalties:
- Prior to shipment of any commodity out of the U.S., determine if the commodity requires an export license and assist in securing such license, when required.
- Secure license approval or verify license exception PRIOR to shipment for all controlled items. Contact Julie Ford (x2947 or firstname.lastname@example.org) in the Office of Research for guidance on verifying license exceptions and submission of license applications.
- Assure that all technical data about export-controlled commodities qualify as "publicly available" under the above-described criteria (e.g., publish early and often).
- Do not accept publication controls or access/dissemination restrictions (such as approval requirements for use of foreign nationals), enter into 'secrecy agreements', or otherwise agree to withhold results in research projects conducted at Drexel or that involve Drexel facilities, students, or staff.
- Do not accept proprietary information from another that is marked "Export Controlled." Return to the manufacturer any materials they provide to you about export-controlled equipment that is marked "Confidential." Review any Confidentiality/Non-Disclosure Agreements to insure that Drexel and you are not assuming the burden of restricting dissemination based on citizenship status or securing export licenses.
- Do not attend meetings that foreign nationals are prohibited from attending. Do not sign the DD2345, Militarily Critical Technical Data Agreement, as a condition of attending a conference or receiving materials from the government.
- Do not travel to conduct research or educational activities to embargoed countries without first checking with the Office of Research to ascertain whether a license from the Department of Treasury, Office of Foreign Assets Control, is required. The list of currently embargoed countries can be found at the Treasury Department's Office of Foreign Assets Control (OFAC) website.
What are the penalties for violating the export control regulations?
Violations of the export control regulations can result in both civil and criminal penalties for the individual and for the institution. In addition to a civil penalty not to exceed $10,000 for each violation of the export regulations, there are criminal penalties that may be imposed, including a fine of up to $1 million against the university and a fine of up to $250,000, or imprisonment of not more than 10 years, or both against the individual. Penalties apply to each individual violation, which means that if a violation relates to more than one controlled material or item or occurs on more than one occasion, each item or incident may trigger a penalty. Contact Julie Ford in the Office of Research immediately if you think you have an issue.