Export controls are U.S. laws and regulations governing the “export” of certain controlled technologies, services and information to foreign nationals, foreign entities or foreign countries for reasons of national security and foreign policy.
An export is defined as an actual shipment outside of the U.S. of controlled equipment or materials (actual items) or any disclosure of information or technical data related to controlled equipment or materials by any means (verbal, email, fax, visual inspection, internet or training) outside the U.S or inside the U.S. to a foreign national). Disclosure of information or technical data to a foreign national in the U.S. (at Yale) is defined as a “deemed export”. For deemed exports, foreign nationals would be any person who is not a lawful permanent resident of the U.S., a group not organized to conduct business in the U.S. or a foreign government (or any branch of a foreign government).
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 controls. 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.
The definition of Fundamental Research is basic and applied research in science and engineering, the results of which ordinarily are published and shared broadly within the scientific community, as distinguished from proprietary research and from industrial development, design, production and product utilization, the results of which ordinarily are restricted for proprietary or national security reasons.
Generally speaking, if the information to conduct research is in the public domain and the results of the research are publishable, the research is covered by the Fundamental Research Exclusion. Accordingly, researchers should 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.
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. Counties in the OFAC regulatory regime of greatest concern are Cuba, Iran, Sudan, Syria 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 are those identified in government lists as 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.