Export control policies address issues related to sharing proprietary, confidential, or restricted information or software code with foreign nationals either within the U.S. or abroad, shipping tangible items overseas, and interactions with embargoed or sanction countries, organizations, or individuals.
AP-RE-05.2 details the UNO export control policies and procedures.
Export means to send or take controlled tangible items, software, or information out of the United States in any manner, to transfer ownership or control of controlled tangible items, software, or information to a foreign person, or to disclose information about controlled items, software, or information to a foreign government or foreign person. The controlled tangible item, software, or information being sent or taken out of the United States is also referred to as an export.
Deemed Exports describes the situation where a foreign national on U.S. soil may be exposed to, or have access in any manner to, an export-controlled item or export-controlled software or information. This may occur through visual inspection, electronic mail, oral exchange, and a variety of other means. This would apply to foreign faculty, staff, students, and visitors.
Determining whether a license is needed for a deemed export is similar to physically exporting technology to another country. Technology may be considered released for export through:
- Foreign nationals' visual inspection of equipment or controlled items that originated in the United States of America; this may include lab and facilities tours.
- Communication or application of controlled technology in the United States or abroad including fax, telephone conversations, email, computer data, in person discussions, training sessions, conferences, and symposium.
A Defense Article is any item designated in the United States Munitions List, a list of articles, services, and related technology designated as defense and space-related by the U.S. federal government. Examples include specified chemical agents, cameras designated for military purposes, specified lasers, and certain types of GPS equipment. It also means any technical data recorded or stored in any physical form, models, mock-ups, or other items that reveal technical data directly related to the particular item or “defense article” listed in the USML.
Defense Service means the furnishing of assistance (including training) anywhere (inside the U.S. or abroad) to foreign nationals in connection with the design, development, engineering, manufacture, production, assembly, testing, repair, maintenance, modification, operation, demilitarization, destruction, processing, or use of defense articles, and the furnishing of any controlled “technical data” to foreign nationals anywhere
Dual-Use refers to items, information, and software that are primarily commercial or civil in nature but also have potential military applications.
A U.S. person is a citizen of the United States, a lawful permanent resident alien of the U.S. (a "Green Card" holder), a refugee or someone here under amnesty or political asylum. U.S. persons also include organizations and entities, such as universities, incorporated in the U.S. The general rule is that only U.S. persons are eligible to receive controlled items, software, or information without first obtaining an export license from the appropriate agency unless a license exception or exclusion is available.
A Foreign Person is anyone who is not a U.S. person. A foreign person also means any foreign corporation, business association, partnership, or any other entity or group that is not incorporated to do business in the U.S. Foreign persons may include international organizations, foreign governments, and any agency or subdivision of foreign governments such as consulates.
Fundamental Research - National Security Decision Directive (NSDD) 189 establishes national policy for controlling the flow of science, technology, and engineering information produced in federally-funded fundamental research at colleges, universities, and laboratories. Fundamental research is described as:
- "Fundamental research means basic and applied research in science and engineering, the results of which ordinarily are published and 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.”
It is important to note that if a university accepts publication restrictions or restrictions on foreign nationals, the research does not qualify for exclusion as fundamental research.
Public Domain refers to information that is published and that is generally accessible or available to the public through various means, including fundamental research in science and engineering at accredited institutions of higher learning in the U.S. where the resulting information is ordinarily published and shared broadly in the scientific community. Technology which is available in the public domain is not subject to export controls, and this is the broadest exclusion under the Export Administration Regulations (EAR) and the International Traffic in Arms Regulations (ITAR).
Re-export means an actual shipment or transmission of controlled tangible items, software, or information from one foreign country to another foreign country. The export or re-export of controlled tangible items, software, or information that will transit through a country or countries, or will be unloaded in a country or countries for reloading and shipment to a new country, or are intended for reexport to the new country, are deemed to be exports to the new country.
Technical data in 22 CFR 120.10 means: (1) Information, other than software as defined in Sec. 120.10(4), which is required for the design, development, production, manufacture, assembly, operation, repair, testing, maintenance or modification of defense articles; (This includes information in the form of blueprints, drawings, photographs, plans, instructions and documentation.) (2) Classified information relating to defense articles and defense services; (3) Information covered by an invention secrecy order; (4) Software as defined in Sec. 121.8(f) of this subchapter directly related to defense articles; (5) This definition does not include information concerning general scientific, mathematical or engineering principles commonly taught in schools, colleges and universities or information in the public domain as defined in Sec. 120.11. It also does not include basic marketing information on function or purpose or general system descriptions of defense articles.
Interested Parties' Responsibilities
Administration Export Control Responsibilities
University administrators, faculty, and staff at all levels share the responsibility of export control compliance in their respective areas. All university employees should be informed on export control compliance issues and share in the responsibility of overseeing, supporting, and implementing procedures set forth by the university.
Office of Research Responsibilities
The Office of Research provides assistance with identifying export control issues and providing support for a solution. The Office of Research:
- reviews the terms and conditions of a sponsored agreement or grant to identify and negotiate out of restrictions on publication and dissemination of the research results;
- has export control checks in the routing form used by principal investigators;
- uses Office of Research internal export control checks at routing form and negotiation stage of award lifecycle;
- uploads documentation for each individual sponsored research project or grant into the PeopleSoft system;
- conduct regular training opportunities for the research community;
- uses internal subcontract check list and subcontract risk assessment form to flow through appropriate export control regulations.
Principal Investigators' (PIs') Responsibilities
PIs are the experts in their field including the information and technology utilized in a sponsored research award and is the university representative most aware of the individuals and entities allowed access to the information and technology. They must ensure that controlled information, articles, or services are not disclosed to a foreign national unless prior authorization is given. In order to meet their obligations to federal regulations and university policy, each PI:
- is required to participate in regular training opportunities on export control issues and understand their obligations regarding export controls;
- must assist the university in properly classifying information, technology, or services involved in the sponsored research activity or grant;
- needs to identify foreign nationals who may be involved with a project, in any way, and if export controls may be involved, should initiate the process of obtaining proper authorization in a timely manner—or is required to implement appropriate measures to ensure foreign nationals are isolated from participation;
- must brief all participants or isolated individuals of the export controlled project; and
- should work with the designated person to develop a technology control plan.
Debarment & Suspension
Executive Order 12549
Federal regulations require that the University of New Orleans certify that neither the University, University officers, nor its researchers:
- Are presently debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded from covered transactions by any federal department or agency.
- Have, within a 3-year period preceding an application for funding, been convicted or had a civil judgment rendered against them for commission of fraud or a criminal offense in connection with obtaining, attempting to obtain or performing a public transaction or contract under a public transaction; violation of federal or state antitrust statures or commission of embezzlement, theft, forgery, bribery, falsification or destruction of records, making false statements, or receiving stolen property.
- Are presently indicted or otherwise criminally or civilly charged by a government entity (federal, state or local) with commission of any of the offenses enumerated in (2) above.
- Have, within a 3-year period preceding this application, had one or more public transactions (federal, state, or local) terminated for cause or default.
In this case, the applicant is the institution, the principals are members of the university's executive board or senior administrative staff, and researchers are the faculty and their professional colleagues who undertake such research activities. You can review the NSF debarment and suspension certification online.
The University of New Orleans treats this requirement as a negative certification, i.e., that no principals or researchers at the institution are debarred, suspended, or proposed for debarment or suspension.
Individuals meeting any of these conditions must notify the Office of Research immediately, because they may be ineligible to receive direct or pass through federal funds.
Dual Use Technology & Dual Use Research of Concern
"Dual use" technology may have a military and commercial value. The National Science Advisory Board for Biosecurity (NSABB) is a federal advisory committee chartered to "provide advice, guidance, and leadership regarding biosecurity oversight of dual use research to all Federal departments and agencies with an interest in life sciences research. The NSABB advises on and recommends specific strategies for the efficient and effective oversight of federally conducted or supported dual use biological research, taking into consideration national security concerns and the needs of the research community."
The NSABB offers the following information on dual use research and dual use research of concern:
"Life sciences research is vital to improving public health, agriculture, and the environment, and to strengthening our national security and economy. Yet the very research designed to find ways to better the health, welfare and safety of mankind can also yield information or technologies that could potentially be misused for harmful purposes. For instance, information from certain life sciences research can be misapplied to create dangerous pathogens for employment as weapons, bypass or diminish the effectiveness of medical countermeasures, or threaten in other ways the health and safety of humans, animals, plants, and the environment. Research yielding new technologies or information with the potential for both benevolent and malevolent applications is referred to as "dual use research."
Some degree of dual use potential may be inherent in a significant portion of life sciences research. However, the small subset of life sciences research with the highest potential for yielding knowledge, products, or technology that could be misapplied to threaten public health or national security is referred to as "dual use research of concern."
The National Science Advisory Board for Biosecurity (NSABB) has defined "dual use research of concern" as "research that, based on current understanding, can be reasonably anticipated to provide knowledge, products, or technologies that could be directly misapplied by others to pose a threat to public health and safety, agricultural crops and other plants, animals, the environment or material."
Export Categories of Concern
There are seven categories of research warranting assessment for dual use research concerns. According to the National Science Advisory Board for Biosecurity (NSABB) framework, the categories are knowledge, products, or technologies that may be any of the following:
- Enhance the harmful consequences of a biological agent or toxin. Enhancing the pathogenic consequences of an agent includes making a nonpathogenic microbe pathogenic.
- Disrupt immunity or the effectiveness of an immunization without clinical and/or agricultural justification. Rendering immunizations ineffective could have harmful consequences for public health, agricultural crops, and other plants and animals.
- Confer to a biological agent or toxin, resistance to clinically and/or agriculturally useful prophylactic or therapeutic interventions against that agent or toxin or facilitate their ability to evade detection methodologies. Anything which may compromise detection, treatment, or prevention of disease or illness caused by biological agents or toxins could result in a public health and/or economic burden.
- Increase the stability, transmissibility, or the ability to disseminate a biological agent or toxin. Examples of research which may be dual use of concern include changing genetic factors to increase transmissibility and altering the route of transmission or vector to increase the ease or effectiveness for transmitting an agent.
- Alter the host range or tropism of a biological agent or toxin. One example that may be of dual use concern includes converting nonzoonotic agents into zoonotic agents, altering the tropism of viruses, and expanding the varieties of the same plant that a pathogenic agent could infect.
- Enhance the susceptibility of a host population. This may include creation of a stable recombinant Lactobacillus casei that could effectively block the host’s ability to synthesize an immune signal which may facilitate the evasion of normal host defenses.
- Generate a novel pathogenic agent or toxin or reconstitute an eradicated or extinct biological agent. A considered dual use of concern include the construction of a microbial pathogen using unique gene sequences that do not exist in nature and reconstitution of a pathogen that no longer exists in nature, such as the reconstruction of the 1918 pandemic influenza virus.
Export control regulations are federal laws prohibiting the export of selected commodities or data for purposes of national security or to protect trade. An export can be the physical transportation out of the United States, or a “deemed export” if a foreign national is allowed access to the prohibited item in the United States. While most exports do not require a license, any of those the federal government classifies as “license controlled” will require a license prior to being exported. The federal regulations governing license controlled exports are:
Export Administration Act
Export Administration Regulations (EAR)
Commerce Control List (CCL); Denied Entities List
Arms Export Control Act
International Traffic in Arms Regulations (ITAR)
U.S. Munitions List; Embargoed Nations List
Trading with the Enemy Act; International Emergency Economic Powers Act; etc.
Office of Foreign Assets Control (OFAC)
U.S. Sanctions and Specially Designated Nationals List
Export Lists to Verify
U.S. Dept. of Commerce Lists
The U.S. Department of Commerce, Bureau of Industry & Security lists the websites available to verify for compliance issues related to export controls.
Denied Persons List
A list of individuals and entities that have been denied export privileges. Any dealings with a party on this list that would violate the terms of its denial order is prohibited.
A list of parties where BIS has been unable to verify the end-user in prior transactions. The presence of a party on this list in a transaction is a "red flag" that should be resolved before proceeding with the transaction.
A list of parties whose presence in a transaction can trigger a license requirement under the Export Administration Regulations (EAR). The list specifies the license requirements that apply to each listed party. These license requirements are in addition to any license requirements imposed on the transaction by other provisions of the EAR.
Specially Designated Nationals List
A list compiled by the Treasury Department, Office of Foreign Assets Control (OFAC). OFAC’s regulations may prohibit a transaction if a party on this list is involved. In addition, the Export Administration Regulations require a license for exports or re-exports to any party in any entry on this list that contains any of the suffixes "SDGT", "SDT", "FTO", "IRAQ2" or "NPWMD".
A list compiled by the State Department of parties who are barred by §127.7 of the International Traffic in Arms Regulations (ITAR) (22 CFR §127.7) from participating directly or indirectly in the export of defense articles, including technical data or in the furnishing of defense services for which a license or approval is required by the ITAR.
Several lists compiled by the State Department of parties that have been sanctioned under various statutes. The Federal Register notice imposing sanctions on a party states the sanctions that apply to that party. Some of these sanctioned parties are subject to BIS’s license application denial policy described in §744.19 of the EAR (15 CFR §744.19).
Excluded Parties List Verification (EPLS)
The Excluded Parties List System (EPLS) includes information regarding entities debarred, suspended, proposed for debarment, excluded or disqualified under the nonprocurement common rule, or otherwise declared ineligible from receiving Federal contracts, certain subcontracts, and certain Federal assistance and benefits. This information may include names, addresses, DUNS numbers, Social Security Numbers, Employer Identification Numbers, or other Taxpayer Identification Numbers, if available and deemed appropriate and permissible to publish by the agency taking the action. Please be aware that although GSA operates this system, individual agencies are responsible for the timely reporting, maintenance, and accuracy of their data.
The Office of Research uses the EPLS site as part of an internal risk assessment form to determine if subcontractors are debarred, suspended, or otherwise ineligible to receive federal funds.
Export Control Regulations (EAR)
U.S. Dept. of Commerce, Bureau of Industry & Security (BIS), Export Administration Regulations (EAR), Commerce Control List (CCL), 15 CFR 700-799
The U. S. Department of Commerce, BIS, has export jurisdiction over technologies which are in the United States or of U.S. origin, in whole or in part. Many of these technologies are proprietary. Technologies which tend to require licensing for transfer to foreign nationals have both civilian and military applications or are “dual use.” These dual use technologies may have been designed for commercial use, such as computers or chemicals, but have the potential to be used for military applications.
Foreign technology with U.S. origin technology above a de minimis level is considered to be subject to the EAR. BIS maintains the CCL which includes items subject to the export licensing authority of BIS. Some technologies are under the jurisdiction of another U.S. agency and entries in the CCL contain a reference to those controls.
International Traffic in Arms Regulations (ITAR)
U.S. Dept. of State, Directorate of Defense Trade Controls (DDTC) International Traffic in Arms Regulations (ITAR), U.S. Munitions List, 22 CFR 120-130
The U.S. Department of State, DDTC, Bureau of Political-Military Affairs controls the export and temporary import of defense articles, defense services, and related technical data from the U.S. to any foreign destination or to any foreign person in the United States or abroad if the items are on the United States Munitions List (USML).
The USML includes the parts and components which are incorporated into an item in addition to the end item. Some non-military items are on the munitions list such as spacecraft, satellites, toxins, and certain chemical precursors. ITAR maintains the USML.
Office of Foreign Assets Control (OFAC)
U.S. Dept. of the Treasury, Office of Foreign Assets Control (OFAC) U.S. Sanctions & Specially Designated Nationals List, 31 CFR 500-599
The U.S. Department of the Treasury, Office of Foreign Assets Control (OFAC), administers economic and trade sanctions against targeted foreign countries and regimes, terrorists, narcotics traffickers, and other threats to the national security, foreign policy or economy of the United States. OFAC has a broad authority to block prohibited transactions involving restricted countries or parties. Many of the sanctions are based on United Nations or other international mandates and are performed in cooperation with allied governments.
Normally OFAC supersedes export controls. OFAC prohibits travel to and other activities with embargoes countries and entities.