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Office of Sponsored Research and Programs 

Frequently Asked Questions

VI. Frequently Asked Questions

Questions relating to Export Control.

  1. What is an export?
  2. Who controls exports?
  3. What is considered Fundamental Research?
  4. What is considered Published Information as used in question #3?
  5. What is Public Domain and why is it important?
  6. What is the purpose of the Export Administration Regulations (EAR)?
  7. What types of dual use technologies are subject to EAR?
  8. What is the purpose of the International Traffic in Arms Regulations (ITAR)?
  9. What is on the US Munitions List (USML)?
  10. If a license is needed, what is the process at Missouri State University?
  11. Are there other regulations to consider?
  12. How should an employee handle the use of information gained from past or present research in classroom discussions if foreign nationals are present?
  13. What is the guidance for determining if non-sponsored program activity should be export controlled?
  14. Are individuals with dual citizenship (one of which is U.S.) allowed unlicensed access to export controlled information?
  15. I teach a class which involves information about encryption using standard published textbooks. Do I have a problem if foreign nationals are in my class?
  16. Can we send documents that contain export controlled information to Quick Copy for reproduction if Foreign Nationals are employed there?
  17. What are the practices that I should employ for protecting export controlled information?
  18. Some of these requirements will result in expenses that I didn’t request in my proposal because I didn’t know that this would be export controlled. How do I handle this?
  19. Some of this information is vague and seems to change a lot. How am I supposed to keep up with all of this?
  20. My award has no restriction on foreign nationals working on it and no publication restrictions except the funding agency wants to review a publication prior to distribution. Does this cancel my fundamental research exemption?
  21. I download software that I use in my classes and usually just click “yes” without reading the license agreement. I’ve heard that some of these licenses have export control restrictions. What should I do?
  22. I have heard that Microsoft operating software is or may be export controlled. I’ve already been warned about not taking my laptop out of the country if it has obvious export controlled data on it but, can I have a problem with the basic operating software?
  23. How can the export control regulations affect my research?
  24. What kinds of projects raise export control questions?
  1. What is an export?
    The Export Control (EC) Regulations define an export as:
    • Any oral, written, electronic or visual disclosure, shipment, transfer or transmission outside the United States to anyone, including a U.S. citizen, or any commodity, technology (information, technical data, or assistance) or software/codes;
    • Any oral, written, electronic or visual disclosure, transfer or transmission to any person or entity of a controlled commodity, technology or software/codes with an intent to transfer it to a non-U.S. entity or individual, wherever located (even to a foreign student or colleague); and
    • Any transfer of these items or information to a foreign embassy or affiliate.
  2. Who controls exports?
    There are three government agencies that control exports:

    • The United States Department of Commerce through its Export Administration Regulations (EAR), Title 15, sections 730-774 of the Code of Federal Regulations. For a list of controlled technologies, see 15 CFR 774, Supplement 1.
    • The United States Department of State (which controls the export of “defense articles and defense services”) under the International Traffic in Arms Regulations (ITAR) 22 CFR 120-130. For a list controlled technologies, see 22 CFR 121.1.
    • The United States Department of Treasury’s Office of Foreign Assets Control (OFAC) through the foreign asset control regulations, 31 CFR 500, administers and enforces economic and trade sanctions based on US foreign policy and
      national security goals against targeted foreign countries, terrorists, and those engaged in activities related to the proliferation of weapons of mass destruction.
    A complete on-line version of the EAR, ITAR, and OFAC (including the criticaltechnology list) is available on-line at:
    http://www.access.gpo.gov/nara/cfr (EAR)
    http://www.fas.org/spp/starwars/offdocs/itar/p121.htm (ITAR)
    http://www.treas.gov/offices/enforcement/ofac/ (OFAC)

    Note: The above links open in a new window
  3. What is considered Fundamental Research?
    • Fundamental research, as used in the Export Control Regulations, includes basic or applied research in science and/or engineering projects at an accredited institution of higher learning in the United States where the resulting information is ordinarily published and shared broadly in the scientific community. Fundamental research is distinguished from other forms of research and/or engineering projects which produce results that are restricted for proprietary reasons or pursuant to specific U.S. Government access and dissemination controls. University research will not be deemed to qualify as Fundamental Research if:
    • The University or research 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 provided to the researcher by a sponsor or to insure that publication will not compromise patent rights of the sponsor; or
    • The research is federally funded and specific access and dissemination controls regarding the resulting information have been accepted by University or researcher.

    Note: The citation for the official definition of Fundamental Research under the EAR is 15 CFR § 734.8. The ITAR citation is 22 CFR § 120.11.
  4. What is considered Published Information as used in question #3?
    The EAR and the ITAR approach the issue of publication differently. For the EAR, the requirement is that the information has been, is about to be, or is ordinarily published. The ITAR requirement is that the information has been published.

    Information becomes “published” or considered “ordinarily published” when it is generally accessible to the interested public through a variety of ways. Publication in periodicals, books, print, electronic or any other media available for general distribution to any member of the public or to those that would be interested in the material in a scientific or engineering discipline. Published or ordinarily published material also include the following:

    Available at libraries open to the public;
    • Patents;
    • Open conference, meeting, or seminar, trade show or other open gathering. [A conference is considered “open” if all technically qualified members of the public are eligible to attend and attendees are permitted to take notes or otherwise make a personal record (but necessarily a recording) of the proceedings and presentations.]
    • In all cases, access to the information must be free or for a fee that does not exceed the cost to produce and distribute the material or hold the conference (including a reasonable profit).
     
  5. What is Public Domain and why is it important?
    Public domain is the term used for “information that is published and that is generally accessible or available to the public” through a variety of mechanisms. Publicly available software or technology is that which is already, or will be published. To fall under this exclusion, there are a number of conditions which demonstrate public availability which are enumerated in the EAR.

    Public Domain is defined in the ITAR (22 CFR 120.11) as information that is “published and generally accessible or available to the public:
    • Through sales at newsstands and bookstores;
    • Through subscriptions which are available without restriction to any individual who desires to obtain or purchase the published information;
    • Through second class mailing privileges granted by the U.S. Government;
    • At libraries open to the public or from which the public can obtain documents;
    • Through patents available at any patent office;
    • Through unlimited distribution at a conference, meeting, seminar, trade show or exhibition, generally accessible to the public, in the United States; >
    • Through public release (i.e., unlimited distribution) in any form (e.g., not necessarily in published form) after approval by the cognizant U.S. government department or agency; and
    • Through fundamental research.

      Note: The EAR definition of Public Domain is located at http://www.access.gpo.gov/nara/cfr/waisidx_01/15cfr734_01.html.  (opens in a new window)
  6. What is the purpose of the Export Administration Regulations (EAR)?
    The primary focus of the EAR is to control the export of dual use technologies i.e., items that are used, or have the potential to be used, for military as well as non-military purposes if such export could adversely affect the national interests of the United States.

  7. What types of dual use technologies are subject to EAR?
    Items subject to the EAR are listed on the Commerce Control List (CCL). This is a very long list broken down into nine broad categories.

    • Category 0 - Nuclear Materials, Facilities and Equipment (and Miscellaneous Items)
    • Category 1 - Materials, Chemicals, Microorganisms and Toxins
    • Category 2 - Materials Processing
    • Category 3 - Electronics Design, Development and Production
    • Category 4 - Computers
    • Category 5 - (Part 1) - Telecommunications - (Part 2) - Information Security
    • Category 6 - Sensors and Lasers
    • Category 7 - Navigation and Avionics
    • Category 8 - Marine
    • Category 9 - Propulsion Systems, Space Vehicles and Related Equipment
     
  8. What is the purpose of the International Traffic in Arms Regulations (ITAR)?
    ITAR places strict controls on the export of “defense articles” and “defense services.” Defense articles include any item or technical data on the United States Munitions List (USML), and defense services include the furnishing of assistance to foreign persons, whether or not in the United States, with respect to defense articles, and the furnishing of any technical data associated with a defense article.

  9. What is on the US Munitions List (USML)?
    The following categories of defense articles and services are included on the USML:

    • Firearms
    • Artillery projectors and armaments
    • Ammunition
    • Launch vehicles, guided missiles, ballistic missiles, rockets, torpedoes, bombs, and mines
    • Explosives, propellants, incendiary agents, and their constituents
    • Vessels of war and special naval equipment
    • Tanks and military vehicles
    • Aircraft and associated equipment
    • Military training equipment
    • Protective personnel equipment
    • Military electronics
    • Fire control, range finder, optical and guidance and control equipment
    • Auxiliary military equipment
    • Toxicological agents and associated equipment
    • Spacecraft systems and associated equipment
    • Nuclear weapons, design, and testing equipment
    • Classified articles, technical data and defense services not otherwise enumeratedDirected energy weapons
    • Submersible vessels, oceanographic and associated equipment
    • Miscellaneous articles not listed above with substantial military applicability and which were designed or modified for military purposes.
  10. If a license is needed, what is the process at Missouri State University?
    Contact the Compliance Officer in OSRP (6-5972) to arrange for appropriate support both within the University, and where necessary, outside the University to address export control and license issues. Unless there is an urgent need for expedited review and approval, it can take months to secure a license to export controlled materials from the U.S. or to transmit them to a non U.S. citizen or resident status within the U.S.

  11. Are there other regulations to consider?
    Yes, under some circumstances. Different rules govern the export (including downloading to electronic bulletin boards or websites, or otherwise making available for transfer outside the United States) of certain encryption software under the EAR. Other rules apply to protection of classified information and to the exporting of commodities and technology relating to nuclear reactor vessels and to special nuclear materials.

  12. How should an employee handle the use of information gained from past or present research in classroom discussions if foreign nationals are present?
    The employee should first ascertain the source of the information and if the contract or grant under which it was discovered, invented or obtained is under export control restrictions. Lack of contractual designation of “export controlled” is not an exclusively sufficient determination. The employee also should make a self-determination of the applicability of EC regulations to the particular information or technology he/she wishes to discuss in the classroom. If this information or technology should be considered export controlled, it should not be presented in the classroom.

  13. What is the guidance for determining if non-sponsored program activity should be export controlled?
    An employee should check the Department of State’s U.S. Munitions List and the Department of Commerce’s Commerce Control List to ascertain if the information or technology falls under the information or technology areas. As this research would not be under a sponsored program, the fundamental research exemption would not apply.

  14. Are individuals with dual citizenship (one of which is U.S.) allowed unlicensed access to export controlled information?
    Some funding agencies regard the non-U.S. citizenship as the primary citizenship status. If there is any doubt, check with your funding agency and with OSRP.

  15. I teach a class which involves information about encryption using standard published textbooks. Do I have a problem if foreign nationals are in my class?
    If you are providing information which is already in the public domain (e.g., published text books, excerpts from professional journals, newspaper articles, etc.), it is not covered by the EC regulations.

  16. Can we send documents that contain export controlled information to Quick Copy for reproduction if Foreign Nationals are employed there?
    No, this would be a “deemed export” and would violate the EC regulations.

  17. What are the practices that I should employ for protecting export controlled information?
    • Laboratory work should be physically shielded from observation by operating in secured laboratory spaces or during secure time blocks when observation by unauthorized persons is preventable.
    • Data, lab notebooks, hard copy reports, and research materials are to be held in locked, fireproof cabinets which are located in rooms with key-controlled access.
    • Electronic communications and all databases are to be managed via a type of virtual private network specifically a Secure Socket layer (SSL), which limits access to authorized users only and facilitates exchanges between those authorized users while encrypting (128 bit encryption) any data sent via Internet.
    • Discussions about the project or work products are to be limited to the identified contributing investigators and are held only in areas where unauthorized persons are not present.
    • Discussions with subcontractors, such as identified manufacturing sites, are only to be conducted under signed (Confidentiality) Non Disclosure Agreements that fully comply with the non-US citizen limitations for such disclosures as described in the EC regulations.
    • Third-party communications are conducted only under valid (Confidentiality) Non-Disclosure Agreements with prior consent of the Government.
  18. Some of these requirements will result in expenses that I didn’t request in my proposal because I didn’t know that this would be export controlled. How do I handle this?
    Check first with your Department or Dean  to see if they can provide the funds for the separate computer, special storage facilities, separate work space, etc. It may be necessary for you to bring the matter to the designated Institutional Official for Export Control. The information or technology must be protected; this is not an option.

  19. Some of this information is vague and seems to change a lot. How am I supposed to keep up with all of this?
    This law and its supporting regulations are complicated and the international political, military and economic situation changes daily. This is, in turn, reflected in the information and technology which is placed on the controlled lists as well as the various funding agencies’ procedures in addressing the export control issue. Our best advice is to revisit your information and technology periodically relative to the government’s controlled lists, keep an open dialogue with your funding agency technical counterpart, and bring your questions and concerns to OSRP or the Institutional Official.

  20. My award has no restriction on foreign nationals working on it and no publication restrictions except the funding agency wants to review a publication prior to distribution. Does this cancel my fundamental research exemption?
    No, this kind of review, even when requested, is considered a courtesy rather than a restriction. If the award required “review and approval” it would be considered as a restriction as this language implies the potential of denying approval to publish or requiring changes to the report, presentation or article prior to publication. A publication approval requirement would cancel fundamental research exemption.

  21. I download software that I use in my classes and usually just click “yes” without reading the license agreement. I’ve heard that some of these licenses have export control restrictions. What should I do?
    First, read all license agreements because clicking “yes” is agreeing to the conditions of the agreement. Second, notice if there are options concerning the type of software you can download. Most license agreements do contain some export control language. In many instances, there is an “educational” version of the software which does not contain export controlled information and is suitable for classroom use.

  22. I have heard that Microsoft operating software is or may be export controlled. I’ve already been warned about not taking my laptop out of the country if it has obvious export controlled data on it but, can I have a problem with the basic operating software?
    Possibly. Microsoft provides information under their general home page http://www.microsoft.com/security/default.mspx (at the home page, search on “export control”) listings of their different software products along with the Department of Commerce’s ECCN (export control classification number)
  23. How can the export control regulations affect my research?
    “Export” is defined not only as a physical transfer/disclosure of an item outside the US, but also as a transfer/disclosure in any form of a controlled item or information within the US to anyone who is a foreign national (not a US citizen or permanent resident). This is called the “deemed export” rule. As a result, unless
    an exclusion or exemption is available, the University may be required to obtain prior governmental approval (in the form of an export license) before allowing the participation of foreign national faculty, staff, or students in affected research. In some cases, a license may not be available at all based on the country involved. In addition to affecting who may participate in the research project on campus, the
    following are examples of situations in which a license may be required:
    • Presentation/discussion of previously unpublished research at conferences and
      meetings where foreign national scholars may be in attendance
    • Research collaborations with foreign nationals and technical exchange programs
    • Transfers of research equipment abroad
    • Visits to your lab by foreign scholars
  24. What kinds of projects raise export control questions?
    Basically, any research activity may be subject to export controls if it involves the actual export or “deemed” export of any goods, technology, or related technical data that is either 1) “dual use” (commercial in nature with possible military application) or 2) inherently military in nature.
Work in the following areas is considered high risk:
  • Engineering
  • Space sciences
  • Computer Science
  • Biomedical research with lasers
  • Research with encrypted software
  • Research with controlled chemicals, biological agents, and toxins
In addition, any of the following raise export control questions for your project:
  • Sponsor restrictions on the participation of foreign nationals in the research
  • Sponsor restrictions on the publication or disclosure of the research results
  • Indications from the sponsor or others that export-controlled information or technology will be furnished for use in the research
  • The physical export of controlled goods or technology is expected
 

 

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