Export Controls: The Basics Page

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Export Controls
U.S. Export Controls Regimes
Exports and Deemed Exports
Export Control Triggers
Exclusions

• Fundamental Research
• Educational Information
• Public Domain
• Full-Time University Employees

Export Controls
Export control laws govern the export of sensitive items, including equipment and technology used at an academic institution through coursework and in research, which can affect the institution in many different and unexpected ways. The laws restrict the shipment, transmission or transfer of certain items, software, technology and services from the United States (US) to foreign countries, as well as to “deemed exports,” which are releases of controlled technology and software source code to foreign nationals located in the US.

Export controls are necessary for purposes of: national security, proliferation of chemical and biological weapons, nuclear proliferation, missile technology, anti-terrorism (Cuba, Iran, North Korea, Libya, Sudan, Syria), crime control, high performance computers, regional stability, and U.N. sanctions.

U.S. Export Controls Regimes
GWU Export Control Policy (Limiting Distribution and Sharing of Information, Technology, and Commodities Both Internationally and Domestically), provides information intended for the members of the GWU community in an effort to promote understanding of Export Controls regulations and the procedures designed to ensure university compliance.  The policy provides detailed explanations of the export controls regulations and their legal limitations, and examples of export triggers and export-controlled activities.

Although many of the University’s activities are exempt from export control laws, some activities may be restricted.  Failure to comply with these laws exposes both the employee and the University to severe criminal and civil penalties (fines and prison sentences) as well as administrative sanctions (loss of research funding and export privileges).

The U.S. maintains two primary export control regimes as well as a number of economic sanctions programs. International Traffic in Arms Regulations (ITAR) are administered by the U.S. State Department’s Directorate of Defense Trade Controls (DDTC), and regulate the export and temporary import of “defense articles”and“defense services”, – i.e., items that are inherently military in nature and are classified on the U.S. Munitions List (USML). The ITAR defense articles include all items, software and technical data set forth on the USML as well as any item that was specifically designed, developed, configured, adapted or modified for a military application or is inherently military in character and does not have predominant civil application.  Commercial items can also become subject to the ITAR if specially modified for a military application.

Export Administration Regulations (EAR) are administered by the Commerce Department’s Bureau of Industry and Security (BIS) and apply to goods, software and technology that are commercial items or “dual-use” items (those with potential military applications) that are not subject to the ITAR, i.e., items that are classified on the Commerce Control List (CCL).  Like the ITAR, the EAR governs both exports of goods, software and technology from the US as well as deemed exports of technology and software source code to a foreign person in the US.

Office of Foreign Assets Control (OFAC), a branch of the Treasury Department, administers the U.S. economic sanctions, which apply to designated countries, entities, and individuals.  The sanctions programs vary in nature (e.g., territorial or “list-based”) and scope (e.g., comprehensive or limited) and may restrict a broad range of exports, imports, and other transactions, including providing educational or research services. A current list of OFAC sanctions programs is at http://www.ustreas.gov/ofac.

Exports and Deemed Exports
Exports are defined broadly and apply to all activities, regardless of the funding source. Generally, an export is: (1) an actual shipment or electronic transmission of controlled goods, software or technical data out of the U.S. (including transfer to a U.S. citizen abroad whether or not it is pursuant to a research agreement with the U.S. Government); (2) a “re-export” of U.S.-origin items from one foreign country to another; or (3) a release of controlled technology or software source code to a Foreign Person in the U.S., which is deemed to be an export to the foreign person’s home country (“deemed export”).

“Deemed export” applies to technology transfers under the EAR and the provision of ITAR technical data and defense services under the policies of most academic/research institutions, foreign faculty, students, staff, and scholars may not be singled out for restrictions in their access to educational and research activities. The disclosure or transfer of export controlled software, technologies or technical data to a foreign entity or individual inside the US is “deemed” to be an export to the home country of the foreign entity or individual.

Export Control Triggers
An export may occur through the provision of technical assistance to a foreign person in the U.S. or abroad as well as by other means.  For example, sending an e-mail to a foreign student in the U.S. or a U.S. person abroad, making a telephone call to a colleague abroad or by allowing foreign persons to visit a lab or access a computer system at the University could be considered as activities defined under the export control regulations.  Before engaging in activities that involve an export, members of the GW community must understand and identify any potential export limitations.  Export controls will generally be triggered:

• Where Foreign Persons will participate in the research;
• Where GW will partner with a foreign company;
• Where GW hosts foreign visiting scholars for the purpose of research that involves certain specified technologies subject to export controls;
• Where equipment needed for experiments or research abroad will be exported (i.e., shipped or accompanying the researcher/faculty member), including, for example, laptops, GPS equipment, other hand-held mobile devices, etc., or any device that contains encrypted software;
• Where GW intends to engage in activities with or involving countries subject to U.S. sanctions;
• Where GW faculty or researchers do not intend to publish or freely disseminate their research results;
• Where GW faculty or researchers will share research results or educational information in any manner (including publication or presentation at conferences) with Foreign Persons – whether these activities take place on U.S. soil (“Deemed Exports”) or abroad; or
• Where export regulations (EAR or ITAR) are cited in the award document. If a researcher or educator accepts export-controlled technology from a government agency or from industry, or creates such technology, the researcher or educator is subject to ITAR and/or EAR regulations.

Exclusions: Fundamental Research, Educational Information, Public Domain, and Full-Time University Employees
Export controls laws prohibit the disclosure of information without a license from Commerce or State of controlled technical information by any method to a foreign national in the U.S. or abroad.  Methods of disclosure can include: faxes, telephone discussions, e-mail communications, computer data disclosure, face-to-face discussions, training sessions, and even tours that involve visual inspections.  However, the licensing requirements for dissemination of information do not apply if one of the following exclusions applies to a specific educational activity:

Fundamental Research (EAR and ITAR): The U.S. export control laws provide for a Fundamental Research Exclusion (FRE) from the licensing requirements for information arising during or resulting from fundamental research conducted at an accredited institution of higher learning located in the United States.  If a certain research or other activity controlled for export is eligible for the FRE, and not otherwise restricted by ITAR or OFAC regulations, Foreign Persons located on U.S. soil may participate in the research.  It is important to note that even though the research results (“output data”) may be eligible for the FRE and accessible to Foreign Persons; information received from the sponsor (“input data”) may still be restricted to U.S. persons only, depending on its export classification.

In general, the FRE is destroyed if GWU accepts any contract clause that:

• Forbids the participation of foreign persons
• Gives the sponsor a right to approve publications resulting from the research; or
• Otherwise operates to restrict participation in research and/or access to and disclosure of research results.

“Side deals” between a PI and Sponsor to comply with such requirements even though not stated in the research contract may destroy the fundamental research exclusion and expose both the PI and the University to penalties for export control violations and may also violate other university policies.

Educational Information Exclusion (EAR and ITAR): The ITAR exempts from controls information concerning general scientific, mathematical, or engineering principles commonly taught in schools, colleges and universities. 

The EAR exempts from controls information that is “educational”—i.e., information released by instruction in catalog-listed courses at the University, including through lectures, instruction in teaching laboratories, and inclusion in course materials.  The EAR’s “educational information” exemption also extends to software, with the exception of certain encryption software.

:This exclusion represents the broadest exclusion under the EAR and ITAR.  Specifically, it allows both deemed exports as well as exports from the U.S. of information and software that is already published, with the exception of certain encryption software. While the EAR and the ITAR define “publish” somewhat differently, essentially under both regulatory regimes information becomes published when it is generally accessible to the interested public in any form such as:

• readily available at libraries open to the public or at university libraries;
• in patents and published patent applications available at any patent office;
• released at an open conference, meeting, seminar, trade show, other open gathering; or
• published in periodicals, books, print, electronic, or other media available for general distribution (including websites that provide free uncontrolled access) or for distribution 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
  

The ITAR provides exclusion for releases of ITAR-controlled technical data to bona fide full-time regular employees of the University.  Under this exemption, the University is authorized to release ITAR-controlled technical data to foreign persons who are employees of the University within the United States, provided that:

• the employees’ permanent abode is in the United States throughout the period of employment;
• the employees are full-time, regular employees of the University;
• the employees are not nationals of an ITAR proscribed country; and
• the University complies with certain additional legal requirements set forth in the ITAR.

It is important to note that this ITAR exclusion generally is not available to graduate and undergraduate students. Also, this exclusion does not authorize exports of items, software, or technical data outside the United States.  The EAR does not include a similar exclusion.