Administration of Externally Funded Projects by yurtgc548


									     U.S. EXPORT CONTROLS


                   Last Updated: March 12, 2010
      Module 3
Export Control Exclusions and
  Exemptions Applicable to
Exemptions/Exclusions to Export
Control License Requirements
   Certain exclusions/exemptions allow for sharing
    of information without a license. Common
    exemptions/exclusions applicable to universities
     Fundamental   Research Exclusion (ITAR, EAR)
     Public Domain/Publicly Available Information (ITAR,
     Educational Information Exemption (ITAR, EAR)
     Full-time employee Exemption (ITAR only)

Fundamental Research
   Exclusion (FRE)
Fundamental Research Exclusion
 National Security Decision Directive 189 issued 9/21/85
  (Reaffirmed in 2001 by Bush administration) provides
  that a license is not needed to share:
    “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."
   (See also 15 CFR 734.8 (EAR) and 22 CFR 120.11 (ITAR))
Thus, the Fundamental Research

   Allows U.S. universities to include foreign
    faculty, students, visitors in certain research in
    the U.S. without a license
   Note: certain encryption software does not
    qualify for FRE so if your project involves such
    technology, OSRA must ensure it is not

To qualify for the FRE, the research must
   1.   Basic or applied research in engineering or science at an
        institution of higher learning in U.S.
   2.   Results of the research are ordinarily published and
        shared broadly; there is no restriction on publication or
        any access controls for the results of the research (i.e.,
        the research can be freely published)
   3.   The FRE provides that the information may be
        transferred in the U.S. and abroad without restriction, but
        the “use” of tangible technology is not covered by FRE
        and cannot be freely transmitted. Thus, even if FRE
        allows you to share information with a foreign person,
        the foreign person cannot “use” any controlled
        technology; i.e., a foreign person could not “use” a
        controlled piece of equipment in your lab.

For export control purposes, “use” of
controlled technology means …

That person has information that would allow that person to do all of the
     following on the controlled technology (per 15 CFR 772.1):
       Operate it
       Install it (including on-site installation)
       Maintain it (check it)
       Repair it
       Overhaul it AND
       Refurbish it.
If less than all of the above is done by the foreign person,
then the person is not deemed to be “using” the equipment
for export control purposes and a license is not needed.

FRE can be Nullified by Publication
   Because the FRE only applies to research that can be
    freely published and disseminated, if an award or project
    restricts open and free publication, the FRE is nullified
    and an export control license may be required.
   For example, if a project sponsor requires the review of a
    proposed publication before it is published, the research
    is not freely publishable and the FRE cannot be relied
      Note that certain publication limitations are
        permissible and do not nullify the FRE; e.g., that a
        sponsor may review a proposed publication for brief
        time (usually no more than 30-90 days) only to
        determine if the publication discloses patentable
        information owned by the sponsor and thus allowing
        sponsor to protect its intellectual property rights
FRE is Also Nullified:
   If any award or project specifies that only U.S.
    citizens may work on the project
   If any award or project prohibits foreign nationals
    from working on the project
   If there is any side deal made in connection with
    the award or project where the researcher or
    faculty members promises confidentiality
   Note the University does not allow for researcher
    faculty members to make “side deals” with
    sponsors. All contracts are negotiated through
    OSRA following usual channels, including a
    review of export control compliance.
FRE is Also Nullified:
   If an award document or project
    requirements includes confidentiality
    requirements or security requirements for
    sensitive or “For Official Use Only”
    information, or any higher classification,
    the FRE may not be relied upon. This is
    because free disclosure of information is
    not permitted.

Other Exemptions/Exclusions to
    Export Control License
Public Domain/Publicly Available
 No license is required for information that is already
  published and generally accessible to the public through,
  among other things:
    Libraries, bookstores, newsstands
    Trade shows, meetings, seminars open to public
    Websites available to the public
 Foreign persons may have access to such information
  without the need for a license.
 Applies only to information and not to, “use” of controlled
  technology, equipment or certain encryption software
 Source – 15 CFR 734.8 (EAR); 22 CFR 120.11(8)(ITAR)

Educational Information Exemption
 No export control license is required for instruction in
  science, math, and engineering taught in courses listed
  in catalogs and associated teaching laboratories of
  academic institutions, even if the information concerns
  controlled commodities or items. Thus, foreign persons
  may be students in such courses without the need for a

 Does not apply to certain encryption software
 Source – 15 CFR 734.9 (EAR); 22 CFR 120.10(5)(ITAR)

Full-Time Employee Exemption
 No license is required for release of information to
  persons who are:
    full-time
    regular
    bona fide employees of FIU
    who maintain U.S. residency during employment and
    who are informed in writing not to transfer the
     information to other foreign nationals
 Post-Docs may not meet above criteria (for example, not
  deemed full time employees)
 Exemption does not apply to foreign nationals from
  OFAC prohibited countries
 This exemption applies only to ITAR license
  requirements. 22 CFR 125.4(10)
The following flow chart may be
 helpful to you in your export
    control determinations.
     THIS RESEARCH? (Source – Julie T. Norris, MIT)
                                          1.   Equipment or encrypted software
                                               is involved, or
1.   Public domain, and                   2.   Technology is not in the public
                                               domain, and                           1.   Equipment, software, chemical,
      a) No equipment, encrypted                                                          bio-agent, or technology is on
            software, listed-controlled   3.   Technology may be exposed to               the US Munitions List (ITAR), or
            chemicals, bio-agents or           foreign nations (even on campus)
                                               or foreign travel is involved, and    2.   Equipment, software, chemical,
            toxins, or other restricted                                                   bio-agent or technology is
            technologies are involved,           a) The equipment, software               designed or modified for military
            and                                        or technology is on the            use, use in outer space, or there
      b) Information/software is                       Commerce Control List, or          is reason to know it will be used
            already published, and               b) Information or instruction is         for or in weapons of mass
      c) There is no contractual                       provided about software,           destruction, or
            restriction on export, or                  technology, or equipment      3.   Chemicals, bio-agents or toxins
                                                       on the CCL, or
2.   Fundamental Research                                                                 on the Commerce Control List
                                                c)    The foreign nationals are           are involved, or
      (note definitions and caveats
                                                      from or the travel is to an
           associated with this                                                      4.   The contract contains a
                                                      embargoed country
           exemption)                                                                     restriction on export or access
                                          4.   The contract has terms e.g. a              by foreign nationals
                                               publication restriction that affect
                                               the Fundamental Research

                 NO                                     Probably                                YES
                                               (further review is required)                License Will Be
                                                  License May Be                              Required
                                                     Required                                                       17
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