In this Section

Export Control

Export controls are federal laws that regulate the transfer of export-controlled devices, software, and information when such items are designated as “defense articles” or “dual use” commodities.  These regulations may affect University research activities in the following situations:

  • The nature of the technology in the research has actual or potential military applications,
  • Foreign countries, organization(s), or individual(s) involved in the research are restricted or prohibited by law,
  • The government regulates the potential end-use or the end-user of the technology resulting from the research.

 

How Export Controls Can Affect Research

  • Sponsors can restrict foreign nationals from accessing or participating in on-campus research,
  • Sponsors can restrict the dissemination or publication of research results,
  • Sponsors can require implementation of security measures to handle export controlled items and technical data associated with research,
  • U.S. export control laws can limit international shipments, exchanges of information, data, or technologies, international travel, and financial transactions or payments to certain countries and nationals of those countries.

 

Where Export Controls Could Apply to Research

Technology subject to export control regulations

Physical Exports

  • An export control license issued by the U.S. government may be required if the research involves the international shipping of export controlled equipment or data. It is important to note that obtaining an export license may take several months and there is no guarantee that the U.S. government will approve a license request.

Deemed Exports

  • If export-controlled data or material will be transferred to foreign persons inside the U.S., the research must first qualify for a “fundamental research”, “public domain”, or “educational” exclusion,
    • Fundamental Research Exclusion (FRE)
      • Syracuse University is committed to free and open research and to academic freedom.  In the export control context, the University is generally able to conduct its research operations under the Fundamental Research Exclusion (FRE). Fundamental research encompasses research in science, engineering, or mathematics, the results of which ordinarily are published and shared broadly within the research community, and for which the researchers have not agreed to restrictions on publication for proprietary or national security reasons.  The FRE allows the University to conduct research freely and openly without restrictions on the participation of foreign nationals.
      • The FRE is critical to the University’s ability to conduct research in an open environment consistent with the University’s commitment to academic freedom.  This exclusion, however, does not apply to all items or in all circumstances. The FRE is inapplicable if the University: (i) accepts publication restrictions other than a temporary delay to ensure the appropriate safeguarding of proprietary information and patent rights, or (ii) accepts restrictions on the participation of foreign nationals in the research.
      • Further, the FRE does not cover the shipment of physical items outside the U.S.  Nor does it cover items the University receives that are protected under non-disclosure or other agreements protecting proprietary or confidential information, including material transfer agreements.  Finally, any activity involving a U.S. government-restricted party, or an embargoed or OFAC-sanctioned country may not be covered by the FRE and requires prior export control review.
    • Public Domain Exemption
      • The ITAR and the EAR do not control information which has already been lawfully published and is accessible or available to the public. However, the ITAR and the EAR vary in the specific information that qualifies as publicly available.
        • ITAR: The ITAR describes such information as information in the public domain. The information in the public domain may be obtained through:
          • Sales at newsstands and bookstores
          • Subscription or purchase without restriction to any individual
          • Second class mailing privileges granted by the U.S. Government
          • At libraries open to the public
          • Patents available at any patent office
          • Unlimited distribution at a conference, meeting, seminar, trade show or exhibition, generally accessible to the public, in the United States
          • Public release in any form after approval of the cognizant U.S. Government agency
          • Fundamental research in the U.S.
        • EAR: The EAR does not control publicly available technology if it is already published or will be published. Information is published when it becomes generally accessible to the interested public in any form, including:
          • Publication in periodicals, books, print, etc., available for general distribution free or at cost
          • Readily available at libraries open to the public or university libraries
          • Patents and open patents applications available at any patent office
          • Release at an open conference, meeting, seminar, trade show, or other gathering open to the public
          • The EAR requires that the publication is available for distribution free or at price not to exceed the cost of reproduction and distribution; however, the ITAR does not have such a requirement.
      • Note also that the EAR does not specify where an open conference, meeting, seminar, or trade show must take place, and thus allows for participation at a foreign conference so long as the conference is open to all technically qualified members of the public, and attendees are permitted to take notes. Unlike the EAR, the ITAR limits participation in conferences and similar events to those that are taking place in the U.S. Presentations of materials other than those covered as “fundamental research” at foreign countries has restriction and may require approval from the government; consult the ECO for additional guidance.
    • Educational Information Exclusion
      • Covers general science, math or engineering commonly taught in courses listed in catalogues and associated teaching laboratories of academic institutions in the U.S. even if the information concerns EAR/CCL controlled commodities or items. ITAR/USML items do not qualify for the Educational Exclusion, as instruction is a “defense service.”

 

  • Deemed exports may also limit research collaborations or field work with foreign nationals.
    • A deemed export is the release of technology or information to a foreign national in the U.S., including students, post-docs, faculty, visiting scientists or training fellows.
    • A Foreign National is any person who is NOT:
      • U.S. citizen
      • Permanent resident alien (Green Card Holders)
      • Asylee
      • Refugee
      • Temporary resident under amnesty provisions
    • The following are considered foreign nationals or foreign persons:
      • Foreign corporation, business association, partnership entity or group not incorporated in the U.S.
      • Person in the US in non-immigrant status (i.e., international students, visiting scholars or any person on visa types: H-1B, H-1B1. H-3, L-1, J-1, F-1, L-1, O-1, etc.)

Foreign Travel

  • International travel with export-controlled equipment or data may require a U.S. governmental license or a “tool of trade” exception,
    • Under the “Tool of Trade” license exception travelers can hand-carry usual and reasonable kinds and quantities of university owned equipment and software for use by employees in a lawful enterprise.
      • A standard university laptop with pre-loaded commercial software or most commercially available items will typically qualify for this exception.
    • The “Tool of Trade” license exception has several requirements.
      • The destination cannot be to a sanctioned country,
      • Use of the “Tool of Trade” exception must be documented on a “Tool of Trade” certificate,
      • Equipment and data cannot be on the International Traffic in-Arms (ITAR) U.S. Munitions List (USML) (e.g. DoD Sponsored project articles or data not in the public domain),
      • Equipment and data must be in the” effective control” of the traveler for the duration of the trip and cannot be released,
      • Equipment and data cannot be out of the U.S. for longer than 12 months.
    • Certain items do NOT qualify for the “Tool of Trade” license exception:
      • Agents, toxins, microorganisms, pathogens, chemicals, or nuclear technologies,
      • High end GPS units,
      • Defense articles listed on the ITAR U.S. Munitions List (USML),
      • Non-standard cryptography technology and software, (non-mass market software), “open cryptographic interface” technology or “cryptanalytic (code-breaking) technology for export to any country other than the 35 favorable countries.
      • Proprietary technical data not intended for public distribution, such as sponsored research with access, publication, or participation restrictions,
      • Technical data relating to the development, production, or use of a commodity listed on the EAR Commerce Control List (CCL),
      • Data relating to any military sponsored project or defense articles on the ITAR U.S. Munitions List (USML).
  • Travel to sanctioned/embargoed countries may require a U.S. governmental license prior to traveling and may limit the hand-carrying of certain technologies,
  • Provisioning financial support or services overseas in a sanctioned/embargoed country or to foreign nationals of those countries is highly regulated and may be prohibited.

Defense Research

  • Unfunded research related to nuclear, chemical, biological, weaponry, missiles, unmanned vehicles, or strong encryption technologies is subject to the ITAR,
  • Contract and grants funded by the Department of Defense or NASA can be subject to the ITAR,
  • Restrictive clauses in defense research contracts can limit publication, as well as foreign national access or participation,
  • Research involving the use of defense articles on the ITAR U.S. Munitions List (USML) or associated technical data does not qualify for an exclusion and may require implementation of research security measures.

 

Avoiding restrictions on access and dissemination of research findings in contracts with the U.S. Government and industry is a key strategy for minimizing export control issues in university and research laboratory settings.

The vast majority of export control violations are inadvertent: timely reporting of a suspected export control incident is the best mitigation of an inadvertent violation. Please report any suspected violations immediately to the Office of Compliance or the confidential Syracuse University Compliance Ethics hotline.

Thank you in advance for taking the time to understand and comply with these federal regulations.

 

Contact Information

Interpreting export regulations can be particularly complex because they require balancing national security and foreign policy with academic freedom values. Please contact the Export Control Officer for questions, concerns, or additional assistance.