U.S. Department of Education
Updated:5/25/2013 2:27:02 AM
Export Controls and College Research: "Deemed Exports"
Export control laws are federal regulations that prohibit the export of certain materials, technologies, software and information without a license. In addition to the actual transport of restricted items, services or technologies to locations outside the borders of the United States, export control laws also prohibit "the [unlicensed] release of technology to a foreign national in the United States through such means as demonstration or oral briefing." As a result of this "deemed export" rule, any research activity that involves the release of controlled material to faculty, students or staff who are foreign nationals will trigger the export control laws and may require the College to obtain a license. The term “foreign national” includes foreign citizens, except those who have been lawfully admitted for permanent residence, admitted as political refugees or granted political asylum. Technology is “released” through visual access and inspection of equipment and facilities, oral exchanges of information in the United States or abroad, or the application to situations abroad of personal knowledge or technical experience acquired in the United States.
The Fundamental Research Exception
The process of determining whether an item or technology is subject to export controls, as well as the procedures for obtaining a license when necessary, can involve a fairly complex legal and scientific analysis. Additionally, a failure to strictly adhere to export control regulations can result in heavy civil and criminal penalties. Fortunately, most of the research that occurs at institutions of higher learning is excluded from the arduous export control regulations by the “fundamental research” exception. The exception includes “basic and applied research in science and engineering, where the resulting information is ordinarily published and shared broadly within the scientific community.” An additional relevant exception exists for “educational information,” or information that is released by instruction in catalog courses and associated teaching laboratories at educational institutions. Thus, research conducted by scientists, engineers or students at Siena College will normally be considered fundamental research, and the College will be exempted from the licensing requirements.
It is possible, however, to unknowingly destroy this exemption and subject the College, as well as individual faculty members and staff, to liability under the export control laws. For example, the fundamental research exception will not apply in the following situations: (1) where an institution or its researchers accept formal restrictions (usually by the research sponsor) on the publication of scientific or technical information resulting from a project or activity; (2) when a sponsoring institution provides proprietary or confidential information to an institution for use in its research, and the institution or its researchers agree that the sponsor may withhold from publication some or all of this information. In this situation, the release to a foreign national of the sponsor’s proprietary information, which is not in the public domain and will not be published at the conclusion of the research, is a deemed export that triggers the licensing requirement; (3) where an individual researcher or group of researchers agree to a “side deal” or informal understanding that they will not publish the results of research, or that includes any other restrictions on the publication of research results.
Because they destroy the fundamental research exception and expose Siena College and its employees to potential liability under the export control laws, restrictions like those listed above should not appear in any of our agreements involving grants and research. Those who review such agreements should look especially for (1) references to export control laws, the EAR or the ITAR; (2) any requirement that foreign nationals be identified, excluded or approved by the sponsor; and (3) any restriction on the publication of proprietary information or research results.
If you are unsure whether an agreement involving grants and research will trigger the export control laws, please inquire with the Office of the College Counsel before taking any action.