The U.S. Government regulates the distribution of strategically important products, services and information to foreign nationals and foreign countries for reasons of foreign policy and national security under rules collectively called “Export Controls.” But what does that mean for you and your work at MU? This information will help you determine what areas may involve the application of Export Control regulations and how to get help in maintaining compliance.
What Is An Export Anyway?
The U.S. Government defines an “export” much more broadly than just a package heading out in the mail. An “export” is “the transfer of controlled technology, information, equipment, software or services to a foreign person in the U.S. or abroad by any means.” For example, an export could include an actual shipment outside the U.S., a visual inspection in or outside the U.S., or a written or oral disclosure or controlled information.
Export Control regulations apply to ALL activities, Not just sponsored research!
Thankfully, there is no effect on the majority of university research and activities; however there is a potential impact on:
- Ability of foreign students to participate in research involving an exportcontrolled technology.
- Ability to provide services (including training on export-controlled equipment) to foreign nationals
- Ability to send export-controlled equipment to foreign countries
The Million-Dollar Conversation
In addition to working with and shipping certain pieces of equipment, federal laws also prohibit the disclosure of controlled technical information by any method to a foreign national in the U.S. or abroad without a license from the federal oversight agency. This is called a “Deemed Export.”
Methods of disclosure include, but are not limited to, a fax, telephone discussions, e-mail communications, computer data disclosure, face-to-face discussions, training sessions, or tours which involve visual inspections.
To avoid a major fine (potentially up to $1 million!), an exemption or exception to the requirement for a license must be available. A variety of exemptions/exceptions are possible, but the one most often employed in the academic setting is the Fundamental Research Exclusion, which generally states:
No license is required to disclose to foreign nationals information which is “published and which is generally accessible or available to the public [through, for example] fundamental research in science and engineering at universities where the resulting information is ordinarily published and shared broadly in the scientific community.”
However, it is important to remember that the provision of “things” (e.g. tangible items) and “services” (e.g. training) are not included under this exclusion and thereby may require a license when controlled items or information are involved. Also, to maintain our ability to invoke this exclusion, MU cannot accept any contract clause that forbids the participation of foreign nationals, 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. Finally, “side deals” between an investigator and sponsor not only violate University policy but also eliminate our ability to use the Fundamental Research Exclusion.