Since 9/11, export control laws and regulations have become more prominent and the U.S Government has increased their scrutiny of institutions of higher education and industry. Export laws and controls have been in place for several decades. They were established to guard our national security, to protect our national economy, and to support our national foreign policy. All employees of higher educational institutions must be aware of and comply with applicable export control laws and regulations.
Wellesley College is fully committed to complying with all export control laws and regulations. Wellesley faculty, staff, and students need to understand their obligations and adhere to all regulations and implementation requirements with regard to export control issues and rules. If you have specific questions or need assistance in determining when regulations apply, please contact Elizabeth Demski, Director, Office of Sponsored Research.
Export Control Agencies
Export control laws are regulated by three U.S. Government agencies: the Department of Commerce through its Export Administration Regulations (EAR), the Department of State under the International Traffic in Arms Regulations (ITAR), and the Treasury Department’s Office of Foreign Assets Control (OFAC).
Criminal and civil penalties (including prison time and/or substantial financial penalties) may apply for violating export control laws and regulations. The Principal Investigator (PI) is liable.
What are Export Control Laws?
Export control laws represent a comprehensive set of federal regulations that control and restrict the use of and access to:
- Technologies (e.g., information, technical data, or assistance);
- Software/code (commercial or custom);
- Goods (equipment, hardware, or materials);
- Information (oral, written, electronic, or visual);
- Chemical and biological materials, and other materials.
Export commonly refers to any shipment, transfer, or transmission of items, goods or services, or technical data out of the United States by any means, including hand-carrying. Under EAR and ITAR regulations, however, an export can also refer to the release of technology or software technical data to a foreign national located in the United States.
Software or technical data is considered released for export through:
- Visual inspection by foreign nationals of equipment and facilities that originated in the United States;
- Oral exchanges of information in the United States and abroad (even a discussion in the lab);
- Disclosure to a foreign researcher or student at Wellesley.
The U.S. Government considers any type of transfer to a citizen or permanent resident of a foreign country, regardless of where the transfer occurs, an export to that country.
A permanent U.S. citizen (i.e., foreign nationals with “green cards”) or protected individual (i.e., foreign national granted political asylum in the U.S.) are exempt.
Export controls apply to all activities — not just sponsored research projects.
When Export Controls Apply
Export controls usually arise for one or all of the following reasons:
- The nature of the export itself;
- Concerns about the destination country, organization, or individual;
- Concerns about the declared or suspected end use and/or end user of the export (e.g., and individual, an entity such as a laboratory or other organization, or a country).
Export regulations apply whether or not the recipient is funded by a grant, contract, or other agreement, and apply whether or not the EAR or ITAR are cited in the award document. If a researcher accepts export-controlled technology or information from a government agency or from industry, the researcher is subject to ITAR or EAR regulations.
It is imperative that all faculty, staff, and students of Wellesley College comply with export control laws. If research involves specified technologies, the EAR and/or ITAR may require the PI to obtain prior federal approval before allowing foreign nationals to participate in the research, before partnering with a foreign company, or before sharing research results in any manner (including by publication or presentation at conferences) with persons who are not U.S. citizens or permanent resident aliens.
Common examples of when Export Controls may apply:
- Carry a laptop computer into an OFAC/embargoed country;
- Carry a cellular phone with GPS into a restricted county;
- Accept an award from the U.S. Government that has proprietary restrictions on the release of data;
- Ship computers or encrypted software to a foreign county;
- Collaborate with a foreign national or release information to a foreign national on a research project or the Federal Government;
- Research involves an EAR category on the Commerce Control List (CCL),
- Research involves any item on the ITAR Munitions List;
- Research involves technology or devices designed for use in military, security, and intelligence applications;
- Research involves anything else with a substantial or dual-use military application;
- Research assistant is a foreign national;
- Research results are sent to a foreign country or to a foreign citizen;
- Foreign travel associated with the project.
Generally, most technology, information, and software that Wellesley developes, shares, or receives from colleagues or others is excluded from export controls, export licenses, or other government approval under the fundamental research exemption.
Fundamental Research Exemption
For academic or research institutions the fundamental research exemption (i.e., research results) may apply if “information is published and generally accessible or available to the public”. The fundamental research exception falls under National Security Decision Directive 189 (NSDD 189).
NSDD 189 defines fundamental research as: "Basic and applied research in science and engineering where the resulting information is to be 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."
Broadly, the EAR considers information published if it has been, is about to be, or is ordinary published. Whereas, the ITAR requirement is that the information has been published.
University research will not qualify as fundamental research if (1) the institution accepts any restrictions on the publication of the information resulting from the research, other than limited prepublication reviews by research sponsors to prevent inadvertent divulging of proprietary information or to insure that publication will not compromise patent rights of the sponsor; or (2) the research is federally funded and specific access or dissemination controls regarding the resulting information have been accepted by the university or the researcher.
Please be aware, even though publication restrictions may not apply under the fundamental research exemption, the exemption may not be applicable to export of licensed controlled tangible items, to software, to an embargoed country, or to a national of said country.
Export Control Licenses, Waivers, and Documentation
The project PI has sole responsibility for considering export control laws during the planning and implementation of their project. This also applies to a change in the scope or direction of the project. The PI must have in place all required licenses, waivers, or necessary documentation (i.e., Material Transfer Agreement or Memorandum of Understanding) prior to exporting anything that falls under export control laws.
Please note, a license can take 3-6 months to obtain. Licenses are commonly denied in the following countries: Afghanistan, Armenia, Belarus, Burma, China, Cote d’Ivoire, Cuba, Cyprus, Democratic Republic of Congo, Eritrea, Fiji, Republic of Guinea, Haiti, Iran, Iraq, Krygyzstan, Lebanon, Liberia, Libya, North Korea, Somalia, Sri Lanka, Sudan, Syria, Tajikistan, Venezuela, Vietnam, and Zimbabwe.
The Director of Sponsored Research, Elizabeth Demski, will process the required waivers or documentation as well as assist the PI in addressing license issues.
Export Controls and Embargoes, What You Never Wanted to Know, by Jamie Lewis Keith, Senior Counsel, Massachusetts Institute of Technology (PowerPoint presentation)
Stanford University's Export Controls Decision Tree