Table of Contents
Export Control Laws and Regulations
Export Control Agencies
What are Export Control Laws?
When export controls apply
Common examples of when Export Controls may apply
Fundamental Research Exemption
Export Control Licenses, Waivers and Documentation
Forms
Resources
Export Control Laws and Regulations
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. It is expected that
all employees of higher educational institutions, especially those who perform
research on behalf of the Department of Defense or defense contractors, 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) http://www.ustreas.gov/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:
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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:
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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., an 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 :
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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 propriety restrictions
on the release of data,;
Ship computers or encrypted software to a foreign county;
Collaborate with a foreign national or releases information to a foreign
national on a research project or the Federal Government;
Research involves an EAR category Commerce Control List (CCL),
Research involves any item on the ITAR Munitions List
http://www.pmdtc.org/itar_index.htm
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 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 developed,
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)
(http://fas.org/irp/offdocs/nsdd/nsdd-189.htm)
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 Office of Sponsored Research, Elizabeth Demski, Director, will process the
required waivers or documentation As well as, assist the PI to address license
issues
Forms
Material Transfer Agreement,
Memorandum of Understanding (MOU)
Resources
List of Export Controlled or Embargoed Countries, Entities, and Persons: and Lists
of Controlled Technologies (web site)
Export Controls and Embargoes, What You Never Wanted to Know, by Jamie
Lewis Keith, Senior Counsel, Massachusetts Institute of Technology (PowerPoint
presentation