SMU Research

Export Controls

Definition of Export

According to the Export Administration Regulations, Export means

  • “An actual shipment or transmission out of the United States, including the sending or taking of an item out of the United States, in any manner” or
  • “Releasing or otherwise transferring technology or source code… to a foreign person in the United Stated (a Deemed Export)” (BIS, 2017).

The term “item” in the definition above can refer to commodities (physical things), software, and technology. Therefore, exports can occur in many ways in a research setting. Below are some examples of research-related exports:

  • Shipping scientific equipment to South America for a research project
  • Taking a USB drive containing research data to a conference in Asia
  • Providing a foreign graduate student with blueprints for a research project at SMU
  • Taking a laptop that contains research software to Europe
  • Sending virus samples to a collaborator in Australia
  • Allowing foreign visitors to tour a research laboratory

Regulations

The Department of Commerce’s Export Administration Regulations (EAR; 15 CFR 700-799)

EAR principally governs the export of items or information that have potential military as well as commercial or civilian applications, also known as “dual use” items or information. Almost everything that is exported from the US is subject to the EAR, but only a few exports require a license. The controlled items are listed on the Commerce Control List (CCL).

The Department of State’s International Traffic in Arms Regulations (ITAR; 22 CFR 120-130)

ITAR governs the export of items or information related to military, weapons, and space. The controlled items and information are listed on the US Munitions List (USML).

The Office of Foreign Assets Controls (OFAC) Regulations (31 CFR 500-599)

OFAC Regulations relate to economic and trade sanctions against targeted foreign countries, regimes, terrorists, and narcotics traffickers; proliferation of weapons of mass destruction; and other threats to national security, foreign policy, or economy of the US. These regulations are recipient-specific.

Exclusions

In some cases, the export of technology and software is not subject to Export Controls regulations. Please note that the export of commodities cannot be excluded from Export Controls regulations.

Fundamental Research

Fundamental Research is defined in the EAR as "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 accepted restrictions for proprietary or national security reasons" (BIS, 2017). Therefore, in order to qualify as Fundamental Research, a project must not be subject to any publication restrictions or some types of pre-publication review. “Technology or software that arises during, or results from, fundamental research and is intended to be published is not subject to the EAR” (BIS, 2017). This is referred to as the Fundamental Research Exclusion (FRE).

Educational Information

Information that is normally taught or released by the university as part of the normal instruction in a catalog course or in an associated teaching laboratory is considered Educational Information, and is NOT subject to Export Controls.

Published Information

A principal goal of the Export Controls program is to preserve the FRE. This is achieved through review of Contracts and agreements to identify and eliminate language that would deem a project ineligible for the FRE. The most common way to fail to qualify for the FRE is to accept limitations on the right to publish research results. ORGS will work with Researchers and OLA to negotiate Contract and agreement terms and conditions.

Management of Exports of Controlled Items

If an Export is not eligible for an exclusion, then it is subject to Export Controls regulations and must be managed. The following is a non-exhaustive list of activities that will require management:

  • Export of commodities
  • Export of items produced during non-fundamental research
  • Export of encryption technology
  • Export of items related to industrial development, design, and production
  • Export of items produced during research performed outside the US

Exports of Controlled Items will be prevented via a Technology Control Plan. If the Export of a Controlled Item cannot be prevented, then it must be classified and licensed according to the regulations.

Technology Control Plans

If a research project cannot be considered Fundamental Research, or if a project comprises items that would usually be subject to Export Controls, then Researchers will create a Technology Control Plan (TCP). This document details how the Researchers will prevent unintended export of research commodities, software, and technology. A TCP addresses physical security, information security, Personnel qualifications, training, international travel and collaborations, and other topics. The completed TCP will be reviewed by ORGS and OIT. All Personnel involved with the project must be listed on the TCP, complete the required training, and adhere to the provisions of the TCP. A TCP must be renewed every year.

Classification and Licensing

Most Controlled Exports can occur if they are properly classified and licensed. This process can take weeks to months to complete, so it is best to begin as soon as you know a Controlled Export must take place. ORGS will direct the classification and licensing process in collaboration with the Researcher.

Personnel Responsibilities

Compliance with Export Controls regulations is a complex task that requires collaboration and communication between Researchers and ORGS. Researchers need to:

  • Be aware of Export Controls concerns
  • Complete required Export Controls training, if applicable
  • Notify ORGS of any restrictions on publication of research results
  • Notify ORGS before sending and/or transferring research-related items to foreign countries
  • Create and adhere to a Technology Control Plan, if applicable
  • Provide ORGS with the information necessary to classify and license an export, if applicable

ORGS will:

  • Provide Export Controls training
  • Review research Contracts and agreements and attempt to remove any language that would disqualify a research project for the FRE
  • Assist with identification of Exports of Controlled Items
  • Review, maintain, and document completed Technology Control Plans
  • Work with Researchers to facilitate classification and licensing of exports
  • Monitor international travel requests for potential Exports of research-related Items

Training

Export Controls training is offered via the Collaborative Institutional Training Initiative (CITI Program). It consists of 1 required module, and should take about 30 minutes to complete.

Training is required for Personnel included on a TCP, and for Personnel on research projects that comprise items that would usually be subject to Export Controls. Training must be completed as assigned, as well as prior to the finalization of a TCP.

Assistance with logging in to an existing account and adding the appropriate course(s)

Assistance with creating a new account and registering for the appropriate course(s)

Assistance with associating your existing account with your SMU credentials

US Department of Commerce/Bureau of Industry and Security. Scope of the Export Administration Regulations. (2017).