What are Export Controls?
Export controls are Federal laws that regulate the export of software, hardware, technology, and associated services and data. These laws seek to ensure that strategic technologies developed in the United States (U.S.) are not disclosed to foreign individuals and entities. Three Federal departments enforce export control regulations, the Department of State through the International Traffic in Arms Regulation (ITAR), the Department of Commerce through the Export Administration Regulation (EAR), and the Department of Treasury through the Office of Foreign Assets Control (OFAC). Exporting certain technologies requires obtaining a license from the Federal entity with oversight responsibility.
Who is a defined as a foreign person?
- Those who are not a U.S. citizen or legal permanent resident
- Those U.S. citizens employed by a foreign entity
- Those in the United States who are not granted political asylum
What is defined as a foreign entity?
- A foreign government
- An entity that is not incorporated or organized to do business in the U.S.
How is a Technology Exported?
Exporting technology to a foreign entity or person can occur in numerous ways, including shipping technology overseas, sending an email, carrying controlled technology overseas (on a laptop or flash drive), and sharing technology with a foreign national inside the United States. The latter is called a “deemed export”. On university campuses, deemed exports are one of the most common instances where an unauthorized export may occur. This is in large part due to varied student populations.
What is the Fundamental Research Exclusion?
The Fundamental Research Exclusion holds that basic and applied research in science and engineering, the results of which ordinarily are published and shared broadly within the scientific community and not subject to proprietary or national security restrictions, are not applicable to export control regulations. There is a two part test for this exclusion. First, the results of the project must be publishable without the sponsor’s prior approval. Second, there must be no Federal prohibition to the export of the technology. This means that the technology should not be controlled through ITAR or EAR. Additionally, there must be no payments under the project to foreign entities or individuals.
What Questions Should I ask to Determine if I am at Risk of Exporting a Restricted Technology?
- Will I be working with an export controlled technology, either military or dual-use?
- Will I receive restricted information?
- Does the grant or contract restrict the publication of any results?
- Will foreign individuals or entities participate?
- Will I ship any materials/data or travel internationally?
What Happens if my Project is Subject to Export Control Restrictions?
High Point University can implement a Technology Control Plan (TCP) to restrict disclosure of applicable technology to foreign entities and individuals. Alternately, the University can seek an export control license from the appropriate Federal department. Licenses will only be sought in rare circumstances.
Where Can I get Further Information or Assistance?
Stanford University offers an excellent decision tree for determining if your project is subject to export controls. If you are unsure whether your project may be subject to export control restrictions, please contact us.