Export Control

 

 

Overview

University of Notre Dame’s faculty, staff, and students engage in research activities that may involve the export of certain items, products or goods, technology, and software to foreign countries, and consequently, may be subject to U.S. export control laws and regulations. The U.S. government actively regulates, and in some cases, restricts the export of certain items, information, and technologies critical to the interests of national security, the economy, and foreign policy. Federal regulations generally govern the export of items from the United States to foreign countries, but regulations also restrict the “deemed export” of certain information to foreign nationals within the United States, and may require a special license.

An overall Export Control Management Plan (ECMP) for Notre Dame may be accessed here.

Restrictions apply to information, items, technologies or services that include:

  • Military or “dual use” items
  • Chemical or biological weapons
  • Encryption technology and related software
  • Funding, information, services or items provided to embargoed countries

In addition to activities involving military items or weapons, it is critical to note that many normal, everyday university activities are subject to export controls, including:

  • Traveling overseas on university business (e.g., conferences, conducting field work, international symposia)
  • Research collaborations with foreign nationals (here or abroad)
  • Visits or tours of research facilities by foreign nationals
  • Sponsoring research (e.g., via a contract) to an embargoed or sanctioned country
  • Providing professional services (e.g., consulting) internationally or to problematic end-users

Export controls can impact the ability to:

  • Ship items out of the U.S.
  • Collaborate with foreign colleagues
  • Allow the participation of foreign students or foreign researchers in research activities
  • Provide services (including training) to foreign persons both here and abroad

Noncompliance with export control laws and regulations can result in severe civil and criminal penalties, including imprisonment, loss of research contracts, seizure and forfeiture of goods, and loss of export privileges.

 

Export Control Laws and Regulations

The three major regulatory agencies responsible for export controls are: the Department of Commerce’s Export Administration Regulations (EAR), the U.S. Department of State’s International Traffic in Arms Regulations (ITAR), and the U.S. Department of Treasury’s Office of Foreign Assets Control (OFAC). Together, this comprehensive set of inter-related regulations may restrict University of Notre Dame’s researchers in certain research areas.

 

The U.S. Department of Commerce, Bureau of Industry and Security (BIS):

The BIS administers the Export Administration Regulations (EAR), which are intended to control the export or shipment of “dual use” items – those items that have the potential for both military and civilian applications, such as GPS units, lasers, and centrifuges. Items subject to the jurisdiction of the BIS are listed in the Commerce Control List (CCL) found in the EAR. Additionally, the EAR restricts a U.S. individual or business from participating in certain restrictive trade practices and foreign boycotts.

The U.S. Department of State, Directorate of Defense Trade Controls (DDTC):

The DDTC administers the International Traffic in Arms Regulations (ITAR), which governs the export of information and technology that is “inherently military” in nature but may also include many items designed for space-related purposes as well as technical data and services subject to the Arms Export Control Act of 1976. Items under the ITAR’s jurisdiction are listed on the U.S. Munitions List (USML) and generally include weapons, certain military equipment including cameras and cryptographic devices, software, biological and toxicological agents, and other technical data.

The U.S. Department of the Treasury, Office of Foreign Assets Control (OFAC):

The Office of Foreign Assets Control (OFAC) is responsible for enforcing all U.S. embargoes and sanctions programs against certain foreign countries including, but not limited to, Cuba, Iran, North Korea, and Syria. The prohibition against direct or indirect transactions with these countries includes investment and the import and export of goods and services.

 

Applicability to Research Conducted at the University of Notre Dame

Most research conducted at the University Notre Dame will not be affected, but there are some areas of export control regulations that university researchers should be aware of, including:

  • The export of physical items, such as scientific equipment, or transfer of controlled information, including technical data, to persons and entities outside of the United States.
  • The “deemed export” of verbal, written, electronic, or visual disclosures of controlled scientific and technical information related to export controlled items to foreign nationals within the United States.
  • Travel to certain sanctioned or embargoed countries for purposes of teaching or performing research.
  • Research projects containing restrictions, such as publication restrictions.

 

Required Export Control Training

CITI Training

The University of Notre Dame requires export control training via an institutional subscription to the Collaborative Institutional Training Initiative (CITI), a consortium of universities that provides convenient and comprehensive online training modules, for all faculty, graduate students, and post-doctoral students who anticipate working in export controlled areas or anticipate submitting an export control license (or exception). Certification is good for five years, and it must be complete before beginning work.

The export control training consists of four modules as shown below. The time commitment for each module is 15 to 20 minutes.

  • US Export Controls: General Overview
  • Export Administration Regulations (EAR)
  • The International Traffic and Arms Regulations (ITAR)
  • The Office of Foreign Assets (OFAC)

CITI Training website >>

BIS Videos and Information >>

 

Does the EAR Apply to Fundamental Research Conducted at the University of Notre Dame?

Fundamental research is not subject to the EAR. Fundamental research is defined as basic and applied research in science and engineering where the resulting information is ordinarily published and shared broadly within the scientific community. Normally, the results of fundamental research are published in scientific literature, thus making it publicly available. Research intended for publication, whether it is ever accepted by scientific journals or not, is considered to be fundamental research. Therefore, the EAR applies only to researchers at Notre Dame who are conducting work in the areas that are subject to EAR and are willing to accept sponsor restrictions on publishing the results of the work.

It is important to note that the fundamental research exclusion only covers the “results” of research. It does not cover actual materials, items or technologies involved in or resulting from the research. Export Controls may still apply to these items.

 

Export Control Management

Technology Control Plans (TCPs)

In the event that a piece of equipment, technology, or technical data is identified as regulated by one of the three export control agencies, the Office of Research Compliance assists the faculty member in creating a detailed Technology Control Plan (TCP) to ensure compliance.

A Technology Control Plan (TCP) is a customized management plan that outlines the procedures in place to prevent unauthorized exportation of protected items, products, information, or technology deemed to be sensitive to national security or economic interests. The Technology Control Plan is a critical component of Notre Dame’s export control compliance program, and it may require an export control license.

The TCP document may be downloaded here. The PI is required to fill out this form, paying close attention to the required details. All students or post-docs who seek access under the TCP are required to submit a copy of their CV’s and visas. The completed form should be submitted to the Office of Research Compliance where it will be reviewed and approved by the Vice President for Research.

Technology Control Plan (PDF) >>

All TCPs will be reviewed annually.

 

Foreign National Licensing-Deemed Exports

The term foreign national refers to everyone other than a U.S. citizen, a permanent resident alien, or certain protected individuals such as refugees and those with asylum. The EAR and ITAR regulations state that a transfer of technology or technical data to a foreign person is deemed to be an export to the home country of the foreign person. This is referred to as a “deemed export.”

Even a discussion with a foreign researcher or student in a campus laboratory is considered a “deemed export.” Export controls preclude the participation of all foreign nationals in research that involves restricted technology without first obtaining a license or license exception from the appropriate government agency.

 

Export Control Licensing

Export control laws are in place to protect U.S. national security, foreign policy, and economic interests without imposing undue regulatory burdens on legitimate international trade. An export control license is the U.S. government mechanism to allow and trace transfers of export controlled technologies. License requests must be submitted to the specific federal agency responsible; the Department of State for ITAR-controlled items, the Department of Commerce for EAR-controlled items, and OFAC for OFAC-controlled countries.

To determine if a license is required, four questions must be answered:

  • What is being exported (is it controlled and which agency controls it)?
  • Where is it going?
  • Who is receiving it and what is their citizenship?
  • How will it be used?

If a researcher has a project/technology that is export controlled and needs an export license to proceed, he/she must curtail the activity until an exception/exclusion is identified or a license is approved. Note that “deemed exports” may also require a license.

Only a designated ‘empowered official’ may apply for a license. Any request for an export license for a controlled item must be initiated through the Office for the Vice President for Research.

A license application and approval/denial can take up to 6 months for review before a final determination is made. Each license is for a specific export transaction. If there is concern that a license may or may not be needed, please contact the Office of Research Compliance as soon as possible to allow for an analysis of the need and to process the application.

 

Other considerations:

  • Physical shipments could be delayed.
  • International collaborations and exchange of controlled information could be delayed.
  • Restricted equipment on campus may trigger technology control plan requirements with physical and IT security and foreign national review requirements.
  • Training on military restricted (ITAR) equipment could trigger export licensing requirements for certain foreign nationals on campus.

 

Form I-129 (U.S. Citizenship and Immigration Services)

The University of Notre Dame is required by Section 10 of the National Industrial Security Program Operating Manual (NISPOM) to establish procedures to monitor assignments to its facilities of foreign nationals to ensure that the disclosure of, and access to, export-controlled articles and related information are limited to those that are approved by an export authorization. In accordance with part 6 of the I-129 Petition of a Nonimmigrant Worker, Notre Dame must certify or not an H-1B/H-1B1/ E-3/O-1A/TN applicant requires an export license.

 

 

 Page Reviewed/Updated: December 11, 2013