Export control FAQs

What is an expert?

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” (EAR term – Export Administration Regulations, Commerce Department) or “technical data” (ITAR term – International Traffic in Arms Regulations, State Department) 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 “technology” or “technical data”?

These phrases refer to technical information beyond general and basic marketing materials about a controlled commodity. They do not refer to the controlled equipment/commodity itself, or to the type of information contained in publicly available user manuals. Rather, 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.

What is information resulting from “fundamental research”?

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 US 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 will typically be considered fundamental research. The fundamental research exclusion permits US 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 US without a deemed export license. Further, technical information resulting from fundamental research may be shared with foreign colleagues abroad and shipped out of the US without securing a license.

If the sponsor retains the right to review and approve the publication or other dissemination of the research results, then the “fundamental research” exclusion may be lost. It also may be lost if there are controls on the dissemination to or participation in the research by foreign nationals or if there are other security controls on the research.

Prepublication review by a sponsor of university research solely to ensure that the publication does not compromise patent rights or inadvertently divulge proprietary information that the sponsor has furnished to the researchers does not change the status of the research as fundamental research, so long as the review causes no more than a temporary delay in publication of the research results. However, if the sponsor will consider as part of its prepublication review whether it wants to hold the research results as trade secrets (even if the voluntary cooperation of the researcher would be needed for the company to do so), then the research would no longer qualify as “fundamental”. As used in the export regulations, it is the actual and intended openness of research results that primarily determines whether the research counts as “fundamental” and not subject to the export regulations. University based research is not considered “fundamental research” if the university or its researchers accept (at the request, for example of an industrial sponsor) restrictions on publication of scientific and technical information resulting from the project. Thus, even if the written sponsorship agreement contains no publication restrictions, if in practice, the researcher submits to a review and approval process, the results of the research will not retain the status of “fundamental research”.

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
4. Release at an open conference, meeting, seminar, trade show, or other open gathering. 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 “educational” information?

Whether domestically or abroad, the educational exclusions in EAR and ITAR cover instruction in science, math, and engineering taught in courses listed in catalogues and associated teaching laboratories of academic institutions, even if the information concerns controlled commodities or items. Dissertation research must meet the standards for “fundamental research” to qualify as “publicly available.”

What is the fundamental research exemption?

The US National Security Directive189 (1985) 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:

1. 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.
2. 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 US statutes.

What would compromise the research fundamental exemption?

If the US 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 pre-publication review by the government, with right to withhold permission for publication
• restrictions on prepublication dissemination of information to non-US citizens or other categories of persons
• restrictions on participation of non-US 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 US 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 is required prior to the transfer of technology or technical data about the controlled commodity to foreign persons inside the U.S.

Who/what is a “foreign person” or a “foreign national”?

Foreign persons or foreign nationals are:

• any natural person who is not a citizen or permanent resident (green card holder) of the US
• foreign governments
• any foreign corporation or organization that is not incorporated or organized to do business in the U.S.

What is not subject to the deemed export regulations?

Technical data that is in the public domain or is publicly available, including fundamental research, is not subject to deemed export controls. Accordingly, the export control policy at NAU is based upon ensuring that university-generated research results meet the standards for public availability, thereby avoiding the necessity of securing a license prior to dissemination of information to foreign nationals involved in the research. 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:

1. Is published or disseminated
2. Arises during, or results from, fundamental research
3. Is educational information released by instruction in catalog courses or associated teaching laboratories of academic institutions

Is a “deemed” export license required for foreign nationals?

The Commerce Department has export jurisdiction over all goods and technology in the US, unless some other agency has expressly been given such authority. However, this does not mean that a license must be obtained before any item or piece of information can be shipped.

What are the requirements when shipping an item or commodity outside the US?

In order to determine whether it is necessary to obtain an export license to send tangible items outside the US, the researcher preparing the shipment needs to consider:

• the description of the item
• its intended end-use and end-user
• its destination

Shipping items and equipment which are the result of or are used to conduct fundamental research, or visiting a country for research that is not on any list of prohibited destinations, will ordinarily will qualify for “no license required” (NLR) treatment. If you have any questions or need more information regarding outbound shipments please contact the Office of Regulatory Compliance.

What are the researcher requirements for export control policy?

Failure to preserve the Fundamental Research Exclusion can result in EAR or ITAR’s licensing requirements applying to information (technology or technical data) concerning controlled commodities or items. Unless a license exception applies, a “deemed” export license would then be required before information is conveyed (even visually thorough observation) to foreign students, researchers, staff or visitors on campus, and an actual export license would be required before information is conveyed abroad to anyone.