Export controls are U.S. laws and regulations governing the “export” of certain controlled technologies (tangible items, software, information, and services) to foreign nationals, foreign entities or foreign countries for reasons of national security and foreign policy.
There are three important sets of export control laws that endeavor to control the export of technologies.
EAR: The U.S. Department of Commerce administers the Export Administration Regulations (15 CFR 730-774), or “EAR,” which regulate the export of “dual-use” items. These items include technologies which are designed for commercial purposes, but which may have military applications, such as computers, and pathogens.
ITAR: The International Traffic in Arms Regulations (“ITAR”, 22 CFR 120-130) covers technologies which are considered as defense articles and defense services essentially for purely military applications. The items so designated shall constitute the United States Munitions List (22 CFR Part 121) and are regulated through the U.S. Department of State, Office of Defense Trade Controls.
OFAC: One important regulatory regime involves export controls which are based not on the nature of the technology but the individuals and countries involved in the transaction. These regulations are administered by the Office of Foreign Assets Controls (OFAC). The general rule is that transactions of value (payments, providing services, collaborations) with certain countries and individuals are prohibited without a license from the U.S. government. Countries in the OFAC regulatory regime of greatest concern are Cuba, Iran, Sudan, Syria, Crimea (Ukraine-Russia) and N. Korea. Individuals involved in any capacity with these countries, such as travel to such countries, making a payment to an individual or entity in such country, or providing a service or collaborating with an individual or entity in such country, all these are subject to prohibitions. Individuals identified in government lists include those supporting terrorism, proliferation of weapons, illegal exporting activities and other such activities. The application to the government and approval of a license can be a lengthy process so the need for a license should be identified as early as possible.
What is an export: An export is defined as an actual shipment outside of the U.S. of controlled equipment or materials (tangible items) or any disclosure of information or technical data related to controlled technology by any means (verbal, email, fax, visual inspection, internet or training) outside the U.S or inside the U.S. to a foreign entity. Disclosure of information or technical data to a foreign entity in the U.S. (including on campus at Yale) is defined as a “deemed export”. For deemed exports, a foreign entity is any person or entity who is not:
- a U.S. citizen
- a lawful permanent resident of the U.S.
- refugee or other protected individual
- Federal, State, Local governments
- corporation and other organizations incorporated to conduct business in the U.S.
While all activities at Yale need to be in compliance with export controls, it should be noted that the majority of research activities at Yale qualify for certain exclusions from the export control regulations. Most research activities at Yale will not be affected by export controls due to the so called Fundamental Research Exclusion. As is the case with most Yale research, this exclusion covers basic and applied research that results in publications and open dissemination of research results, as is typically found in academic research.
Fundamental Research is defined by the National Security Decision Directive 189 (NSDD189) as “any basic or applied research in science and engineering, the results of which are ordinarily published and shared broadly within the scientific community…” In order to qualify as Fundamental Research, the research must be conducted free of any publication restrictions and without any access or dissemination restrictions. Research that qualifies as Fundamental Research is NOT subject to export controls as provided for under the federal regulations (15 CFR§734.8).
Yale needs to avoid terms in award documents (contracts and grants) that may lead to export control concerns, including the removal of the Fundamental Research Exclusion. Generally, terms which prevent free and open access to the participation in the research endeavor or the dissemination of research results are suspect. In particular, the following terms would be problematic:
- Restrictions on the participation, access or hiring of faculty, students or staff in the conduct of the research program, based on their nationality or citizenship, including limiting participation to U.S. citizens.
- Restrictions on the disclosure of information or research results or access to equipment on faculty, students or staff based on their nationality or citizenship, including limiting participation to U.S. citizens
- Terms requiring the approval of a sponsor prior to disclosure or publication of information or research results generated in the conduct of the sponsored research or granting the sponsor the right to require that such information or research results be treated as confidential information.
Another important exclusion to export controls is the Public Domain Exclusion. Information that is published and generally available to the public, as well as publicly available technology and software, is outside the scope of the export control regulations. This exclusion does not apply to encrypted software, to information if there is reason to believe it may be used for weapons of mass destruction, or where the U.S. government has imposed access or dissemination controls as a condition of funding.
Export control regulations also do not apply to information released in academic catalog-listed courses or in teaching labs associated with those courses (Education Instruction Exception). This means that a faculty member teaching a University course may discuss what might otherwise be export-controlled technology in the classroom or lab without an export control license even if foreign national students are participating in the course. This exclusion may not apply to encrypted software, special non-catalog courses or where the U.S. government has imposed access or dissemination controls as a condition of funding.