The nature of the export has actual or potential military applications or economic protection issues
Government concerns about the destination country, organization, or individual
Government concerns about the declared or suspected end use or the end user of the export
Questions to Consider when Evaluating a Research Project
Any activity involving funding through the Office of Research should be reviewed carefully because every export control issue is situational, especially if the project involves a foreign component. The basic questions to ask include:
- What items or technologies are being used?
- Where are any items or technologies going?
- Who will access the research, items or technologies?
These questions should be asked for all facets of research, including but not limited to:
- Foreign visitors entering your lab;
- Shipping equipment, supplies, biologics or chemicals both inside and outside the United States;
- Sending technical information, via electronic communications or hard copies, both inside and outside the United States;
- Traveling abroad with electronic devices;
- Use of research equipment and/or the access to technical specifications of research equipment by any foreign nationals in a campus laboratory.
Additionally, the EXPORT CONTROL DECISION TREE may help you deterimine if your research will be subject to export control regulations.
What is an Export?
In general, the export control regulations cover four primary types of University activities:
- Transfer of controlled information, including technical data, to persons or entities outside of the United States;
- Shipment of controlled physical items, such as scientific equipment, that require export control licenses from the United States to a foreign country;
- Verbal, written, electronic, or visual disclosures of controlled scientific and technical information related to export controlled items to foreign nationals.
Such a transfer is termed a “deemed export” and is regulated because the transfer is “deemed” to be to the country where the person is a resident of a citizen;
4. Travel to certain sanctioned or embargoed countries for the purposes of teaching or performing research
Who is a Foreign National?
Foreign Nationals include:
- Persons in the U.S. in non-immigrant status (for example, H-1B, H-3, J-1)
- Persons unlawfully in the U.S.
A Foreign National is any person who is NOT a:
U.S. Citizen or National
U.S. Lawful Permanent Resident
Person Granted Asylum
Person Granted Refugee Status
- Temporary Resident
Fundamental Research and Export Controls
What is Fundamental Research?
Fundamental Research is the basic and applied research in science and/or engineering community where the resulting information is ordinarily published and shared broadly in the scientific community.
Western Carolina University research will not qualify for fundamental research if:
- The University or researcher accepts any restrictions on the publication of the information resulting from the research, other than customary prepublication reviews by research sponsors to prevent inadvertent disclosure of their proprietary information or the compromise of the patent rights of sponsors; or
- The research is federally funded and the University or the researcher accepts specific access or dissemination controls regarding the resulting information
The Fundamental Research Exclusion
Most WCU research activities are excluded from export controls because of a general exception for Fundamental Research. Both the EAR (US Department of Commerce) and ITAR (US Department of State) provide that no licenses are required to disclose technical information if the information is in the public domain.
Information is in the public domain if it is published and generally accessible to the public through unlimited and restricted distribution or through fundamental research in science and engineering at accredited institutions of higher learning in the U.S. where the resulting information is ordinary published and shared broadly in the scientific community.
What Are Potential Consequences to Violating Export Control Regulations?
It is important that faculty and other researchers understand their obligations under the regulations and follow them. The consequences of violating the regulations can be severe, and include loss of research funding, fines, and/or imprisonment. WCU will assist investigators in complying with export control laws, but the primary responsibility rests with the researcher.
Who Governs Export Control Regulations?
The following U.S. governmental agencies determine the policies regarding export control:
The Department of Commerce’s Export Administration Regulations (EAR)
The Department of State’s International Traffic In Arms Regulations (ITAR)
The Treasury Department’s Office of Foreign Assets Control (OFAC)