In addition to actual shipment of a commodity out of the country, the export regulations also control the transfer, release or disclosure to foreign persons in the United States of technical data about controlled commodities. The "deemed export" regulation states that a transfer of "technology" (EAR term - Export Administration Regulations, Commerce Department) or "technical data" (ITAR term - International Traffic in Arms Regulations, State Department) to the foreign person is "deemed" to be an export to the home country of the foreign person. Accordingly, for all controlled commodities, a license or license exception is required prior to the transfer of "technology" or "technical data" about the controlled commodity to foreign persons inside the U.S. (Back to top)
These phrases refer to technical information beyond general and basic marketing materials about a controlled commodity. They do not refer to the controlled equipment/commodity itself, or to the type of information contained in publicly available user manuals. Rather, the terms "technology" and "technical data" mean specific information necessary for the development, production, or use of a commodity, and usually takes the form of blueprints, drawings, photographs, plans, diagrams, models, formulae, tables, engineering specifications, and documentation. The "deemed export" rules apply to transfer of such technical information to foreign nationals inside the U.S. (Back to top)
The export control regulations exempt from licensing requirements technical information (but not controlled items) resulting from "fundamental research." Fundamental research is defined as basic and applied research in science and engineering conducted at an accredited U.S. institution of higher education where the resulting information is ordinarily published and shared broadly within the scientific community. Such research can be distinguished from proprietary research the results of which ordinarily are restricted for proprietary reasons or specific national security reasons. Research conducted by scientists, engineers, or students at a university normally will be considered fundamental research. The fundamental research exclusion permits U.S. universities to allow foreign members of their communities (e.g., students, faculty, and visitors) to participate in research projects involving export-controlled technical information on campus in the U.S. without a deemed export license. Further, technical information resulting from fundamental research may be shared with foreign colleagues abroad and shipped out of the United States without securing a license.
If the sponsor retains the right to review and approve the publication or other dissemination of the research results, then the “fundamental research” exclusion may be lost. It also may be lost if there are controls on the dissemination to or participation in the research by foreign nationals or if there are other security controls on the research. (See response to Question 7 below)
Prepublication review by a sponsor of university research solely to ensure that the publication does not compromise patent rights or inadvertently divulge proprietary information that the sponsor has furnished to the researchers does not change the status of the research as fundamental research, so long as the review causes no more than a temporary delay in publication of the research results. However, if the sponsor will consider as part of its prepublication review whether it wants to hold the research results as trade secrets (even if the voluntary cooperation of the researcher would be needed for the company to do so), then the research would no longer qualify as "fundamental". As used in the export regulations, it is the actual and intended openness of research results that primarily determines whether the research counts as "fundamental" and not subject to the export regulations. University based research is not considered "fundamental research" if the university or its researchers accept (at the request, for example of an industrial sponsor) restrictions on publication of scientific and technical information resulting from the project. Thus, even if the written sponsorship agreement contains no publication restrictions, if in practice, the researcher submits to a review and approval process, the results of the research will not retain the status of “fundamental research”.(Back to top)
Information is "published" (and therefore not subject to export controls) when it becomes generally accessible to the interested public in any form, including: (1) publication in periodicals, books, print, electronic, or other media available for general distribution (including websites that provide free uncontrolled access) or to a community of persons interested in the subject matter, such as those in a scientific or engineering discipline, either free or at a price that does not exceed the cost of reproduction and distribution; (2) readily available at libraries open to the public or at university libraries; (3) patents and published patent applications available at any patent office; and (4) release at an open conference, meeting, seminar, trade show, or other open gathering held in the U.S. (International Traffic in Arms Regulations, State Department) or anywhere (Export Administration Regulations, Commerce Department). Note, a conference or gathering is "open" if all technically qualified members of the public are eligible to attend and attendees are permitted to take notes or otherwise make a personal record of the proceedings and presentations. A conference is considered open notwithstanding a registration fee reasonably related to cost, and there may be a limit on actual attendance as long as the selection is either 'first come' or selection based on relevant scientific or technical competence. (Back to top)
Whether in the U.S. or abroad, the educational exclusions in EAR (Export Administration Regulations, Commerce Department) and ITAR (International Traffic in Arms Regulations, State Department) cover instruction in science, math, and engineering taught in courses listed in catalogues and associated teaching laboratories of academic institutions, even if the information concerns controlled commodities or items. Dissertation research must meet the standards for "fundamental research" to qualify as "publicly available." (Back to top)
The U.S. National Security Directive189 (1985) states: “It is the policy of this Administration that, to the maximum extent possible, the products of fundamental research remain unrestricted. It is also the policy of this Administration that, where the national security requires control, the mechanism for control of information generated during federally funded fundamental research in science, technology and engineering at colleges, universities and laboratories is classification. Each federal government agency is responsible for: a) determining whether classification is appropriate prior to the award of a research grant, contract, or cooperative agreement and, if so, controlling the research results through standard classification procedures; b) periodically reviewing all research grants, contracts or cooperative agreements for potential classification. No restriction may be placed upon the conduct or reporting of federally funded fundamental research that has not received national security classification, except as provided in applicable U.S. Statutes.” (Back to top)
If the U.S. Government funds research and specific controls are agreed on to protect information resulting from the research, then information resulting from the project will not be considered fundamental research. Examples of "specific controls" include requirements for prepublication review by the Government, with right to withhold permission for publication; restrictions on prepublication dissemination of information to non-U.S. citizens or other categories of persons; or restrictions on participation of non-U.S. citizens or other categories of persons in the research. (Back to top)
In addition to actual shipment of a commodity out of the country, the export regulations also control the transfer, release or disclosure to foreign persons in the United States of technical data about controlled commodities. The “deemed export” regulation states that a transfer of “technology” (EAR term - Export Administration Regulations, Commerce Department) or “technical data” (ITAR term - International Traffic in Arms Regulations, State Department) to the foreign person is “deemed” to be an export to the home country of the foreign person. Accordingly, for all controlled commodities, a license or license exception is required prior to the transfer of “technology” or “technical data” about the controlled commodity to foreign persons inside the U.S. (Back to top)
- Any natural person who is not citizen or permanent resident (green card holder) of the United States;
- Foreign governments; and
- Any foreign corporation or organization that is not incorporated or organized to do business in the U.S. (Back to top)
Technical data that is "in the public domain" under ITAR (International Traffic in Arms Regulations, State Department) "publicly available" under EAR (Export Administration Regulations, Commerce Department), including "fundamental research", is not subject to deemed export controls. Accordingly, the Export Control Policy (link to policy) at the Montana State University is based largely upon insuring that research results generated at the University meet the standards for "publicly available" thereby avoiding the necessity of securing a license prior to dissemination of information to foreign nationals involved in the research, including graduate students, post doctoral scholars, and visiting scientists. For University-based research, there are three different ways that the technical information may qualify for an exemption from the deemed export regulations. It is exempt if it:
- Is published or disseminated
- Arises during, or results from, fundamental research or
- Is educational information (as described at 15CFR734.9 and 22CFR120.10(a)(5)) released by instruction in catalog courses or associated teaching laboratories of academic institutions. (Back to top)
No, actual use of equipment by a foreign national in the U.S. is not controlled by the export regulations. Indeed, inside the United States, any person (including foreign nationals) may purchase export-controlled commodities and the "deemed" export rule only applies to technical information about the controlled commodity. As such, while the use of equipment inside the U.S. is not controlled, the transfer of technical information relating to the use (i.e., operation, installation, maintenance, repair, overhaul and refurbishing) of equipment may be controlled in certain circumstances. For example, if the manufacturer of the equipment provided the University some confidential, proprietary information about the design or manufacture of the equipment, then the University might need a "deemed" export license to provide such proprietary information to a foreign national, especially if shipment of the item to the home country of the foreign national would require an export license. In sum, the export regulations allow foreign students, researchers and visitors to use (and receive information about how to use) controlled equipment while conducting fundamental research on U.S. university campuses or while studying at the institution, as long as the technical information about the controlled equipment qualifies as "in the public domain" or "publicly available."
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12. What must be done to Ship an Item or Commodity Out of the United States?
The Commerce Department has export jurisdiction over all goods and all "technology" (Commerce Department term for information) in the United States, unless some other agency has expressly been given such authority. However, this does not mean that a license must be obtained before any item or piece of information can be shipped.
In order to determine whether it is necessary to obtain an export license from the relevant federal agency to send tangible items outside the United States, the researcher preparing the shipment needs to consider:
- the description of the item,
- its intended end-use and end-user, and
- its destination.
Items and equipment used to conduct fundamental research, or which are the result of fundamental research, going to a country that is not on any list of prohibited destinations (Cuba, Iran, Sudan, and sometimes and for some purposes, other countries such as Syria and North Korea), for use in that country in furtherance of fundamental research, ordinarily will qualify for "No License Required" (NLR) treatment under the Commerce Department regulations (EAR 99). If you have any questions or need more information regarding outbound shipments please contact the Office of Legal Counsel.
Transfer of commodities and equipment is only controlled by the export regulations when the item is shipped out of the country. Licenses to ship an item outside the United States are required even when the item or equipment is used in or results from fundamental research. If a commodity is controlled under ITAR (International Traffic in Arms Regulations, State Department), then a license is always required before it can be shipped to any country outside the United States, except in limited circumstances such as shipment to a military base overseas.
The Montana State University Office of Legal Counsel handles such licenses. In most cases the University is not fabricating or shipping ITAR (International Traffic in Arms Regulations, State Department) controlled items, since these are generally items specifically designed for military purposes. For commodities controlled under EAR (Export Administration Regulations, Commerce Department—items useful for both military and civilian purposes), whether a license is required depends upon the country to which the item is being shipped. Even in cases where license approval from the Department of Commerce is not required to ship the item to the country, there are administrative requirements and records that must be maintained regarding shipments of EAR controlled items out of the United States. The Office of Legal Counsel can assist you in determining whether a specific license is required, will secure a license when needed, and can advise you on what records need to be maintained in cases where the item can be shipped without a license. Please contact Office of Legal Counsel at 994-4570. (Back to top)
MSU faculty and staff must take the following steps to assure that they do not violate the export regulations and become personally liable for the substantial civil and criminal penalties:
Prior to shipment of any commodity out of the U.S., determine if the commodity requires an export license and assist in securing such license, when required.
Secure license approval or verify license exception PRIOR to shipment for all controlled items. Contact the Office of Legal Counsel for guidance on verifying license exceptions and submission of license applications.
Assure that all technical data about export-controlled commodities qualify as "publicly available" under the above-described criteria (e.g., publish early and often).
Do not accept publication controls or access/dissemination restrictions (such as approval requirements for use of foreign nationals), enter into 'secrecy agreements', or otherwise agree to withhold results in research projects conducted at MSU or that involve MSU facilities, students, or staff
Do not accept proprietary information from another that is marked "Export Controlled. Return to the manufacturer any materials they provide to you about export-controlled equipment that is marked "Confidential". Along with the Technology Transfer Office, review any Confidentiality/Non-Disclosure Agreements to insure that MSU and you are not assuming the burden of restricting dissemination based on citizenship status or securing licenses.
Do not attend meetings that foreign nationals are prohibited from attending. Do not sign the DD2345, Militarily Critical Technical Data Agreement, as a condition of attending a conference or receiving materials from the government.
Do not travel to conduct research or educational activities to the embargoed countries of the Balkans, Burma, Cote d'Ivoire (Ivory Coast), Cuba, Iran, Iraq, Liberia, North Korea, Sudan, Syria, or Zimbabwe without first checking with the Office of Legal Counsel to ascertain whether a license from the Department of Treasury, Office of Foreign Assets Control, is required. Note that the designation of embargoed countries changes from time to time, so if researchers have questions about any country, contact Office of Legal Counsel.
Contact the Office of Legal Counsel for assistance if you encounter problems in any of the above areas. We will help you to resolve the matter so that your research may proceed in a manner that avoids violation of the export regulations.
The University's mission of education and research and the international nature of science and academic discourse, require that we maintain an open academic environment without regard to citizenship or visa status. The federal export regulations provide appropriate "safe harbors" for fundamental research to protect the University. By following the above guidance, we can assure that the faculty, students and staff at MSU do not compromise our academic standards and, as well, do not violate the export regulations.
Failure to preserve the Fundamental Research Exclusion can result in EAR or ITAR's licensing requirements applying to information (technology or technical data) concerning controlled commodities or items. Unless a license exception applies, a "deemed" export license would then be required before information is conveyed (even visually thorough observation) to foreign students, researchers, staff or visitors on campus, and an actual export license would be required before information is conveyed abroad to anyone. (Back to top)