Export Controls at Wesleyan University: What You Should Know
U.S. export control regulations can be complex. However, in a university environment the applicability of the rules comes down to a few key questions. Here’s what you should know.
Does my work involve Technology?
Technology is specific information necessary for the development, production, or use of a product. The information takes the form of “Technical Data” (e.g., blueprints, plans, diagrams, models, formulae, engineering designs and specifications, and manuals and instructions) or “Technical Assistance” (e.g., instruction, skills training, working knowledge, and consulting services). Conducting research in liberal arts fields, for example, would probably not involve such technology.
If yes, is the Technology involved in my work “controlled”?
“Controlled Technology” is “Technology” (including “Technical Data” or “Technical Assistance”) which is controlled for release or export to the country or nationality in question. In terms of the ITAR, items that appear on the USML are generally controlled for all countries/nationalities. Under the EAR, the analysis involves a review of the CCL and a subsequent determination as to whether the technology is controlled for the country/nationality in question.
If yes, then certain compliance requirements are triggered, including the possible need for a U.S. government export license prior to export or release to foreign nationals.
But Exclusions May Apply
Even if the work involves Controlled Technology, there are exemptions to these requirements. In the University setting information resulting from “fundamental research” is typically excluded from export controls. Fundamental research is defined as research in science, engineering, or mathematics, the results of which ordinarily are published and shared broadly within the research community, provided that a confidentiality or other nondisclosure agreement or contract provision does not otherwise restrict information used during the course of the research or publication and dissemination.
Although much of our research and other activities at Wesleyan may ultimately be eligible for certain exemptions from export controls, it is important to be on the lookout for export control issues. These issues may arise in many contexts, including in connection with:
- Sponsored research awards for technical research
- Nondisclosure or other confidentiality provisions or agreements
- Sponsor pre-approval prior to publication of research
- Sponsor placing any restrictions on foreign national participation
- Receipt of any information or software marked "Export Controlled"
- Travel to or through Cuba, Iran, North Korea, Syria or Sudan
- Military-related research or research with the potential for military applications
If my work involves technology which is described on the USML or CCL, does that mean I'm going to need an export license?
Not necessarily. There are several considerations that may exempt your work altogether. Generally speaking, technology or software that is “publicly available” is not subject to U.S. export controls. This includes technology or software that:
- Is educational as defined in the regulations (Education Exemption), such as information taught in a catalog-course class;
- Is already published or will be published (Publicly Available or Public Domain Exemption); or
- Arises during or results from “fundamental research” (Fundamental Research Exemption).
- These exemptions and some potential limitations are described in greater detail below.
Export Shipments – An Important Note
Physical shipments, such as exports of tangible items (e.g. lab equipment, computers, etc.) do not benefit from the above exemptions and are always subject to U.S. export control requirements. In such cases, the exporter is responsible for determining whether the item is controlled for export to the country or end-user in question.
1. Education Exemption
In most cases, a license is not required to share with foreign nationals “information concerning general scientific, mathematical or engineering principles commonly taught in universities.” This includes information that is released by instruction in catalog courses and associated teaching laboratories of academic institutions.
So, if you're only teaching it in the classroom or lab as part of an official Wesleyan course (excluding senior design-type "courses" where students are conducting their own research), you do not need to worry about export controls.
2. Publicly Available / Public Domain Exemption
Technology and software information that is already published or will be published is not subject to export controls. Information is “published” when it becomes generally accessible to the interested public in any form, including:
- Publication in periodicals, books, print, electronic or any other media available for general distribution to any member of the public or to a community of persons interested in the subject matter either free or at a price that does not exceed the cost of reproduction and distribution;
- Readily available at libraries open to the public or at university libraries;
- Patents and open (published) patent applications available at any patent office; or
- Release at an open conference, meeting seminar, trade show or other open gathering.
- Note that this exemption extends to technology that is made public by the transaction in question. Therefore, sending a paper to an editor or publisher abroad for review to determine whether it will be accepted for publication is not a transaction subject to export controls regulations.
3. Fundamental Research Exemption
Fundamental research is defined as research in science, engineering, or mathematics, the results of which ordinarily are published and shared broadly within the research community, and for which the researchers have not accepted restrictions for proprietary or national security reasons.
Information resulting from “fundamental research” is typically excluded from export controls, unless it is subject to limitations on publication or dissemination such as would be found in a non-disclosure agreement (see Limitations below). As a result, a license is not required to release information that qualifies as “fundamental research” to a foreign national in the United States.
Important Limitations!
The Fundamental Research Exclusion may be unavailable if an employee or the university accepts any contract provision, confidentiality agreement, nondisclosure agreement or other restrictive clause or condition that:
- Gives the sponsor a right to withhold information from dissemination. For example, this type of action may occur through a required pre-publication review;
- Treats research results as proprietary or confidential;
- Includes an expectation that confidential or proprietary sponsor information will remain unpublished;
- Restricts access to and disclosure of research results; or
- Otherwise violates the openness in research.
As you can see, it's in your and Wesleyan’s best interest from a compliance standpoint to avoid entering into confidentiality provisions without first evaluating whether the provision is necessary. If the provision is necessary, it will be important to include certain language regarding export controls in the agreement, and to limit the agreement to a specific project and time period.
Tip:
Dissemination or publication restrictions can take many forms. Export controls may apply if you or Wesleyan accept research restrictions, including those that:
- Forbid or restrict the participation of foreign nationals;
- Limit research participation to “U.S. persons” or “U.S. citizens”;
- Designate the research activity, content or results as “subject to export controls”;
- Include a sponsor initiated or Government flow-down export control clause (other than a general statement of compliance);
- Require a security clearance for participants; or
- Otherwise limit the openness in research activities.
- As long as a project qualifies as 'fundamental research,' under the standards discussed above, it is not subject to U.S. export control requirements even if it occurs as part of a collaboration at a foreign location.
For more information about export controls at Wesleyan, please click the following links:
Return to the Main Export Controls page