Export Control
Compliance & Integrity
Export Control
UNC Greensboro recognizes that a critical component of its mission is supporting fundamental research as well as developing relationships and participating in the worldwide academic and business community to further the pursuit of knowledge. The University is committed to openness in its research activities and freedom of access and dissemination of information for the advancement of the common body of knowledge and scientific discoveries. As a participant in a diverse academic, research, and business community, UNCG is committed to complying with U.S. export controls laws and regulations that apply to its activities.
The Departments of Commerce, State, and Treasury administer the primary controls on exports of goods, commodities, and information.
- The Department of Commerce regulates the export of items and information that have civil applications,
- The Department of State regulates the export of items that have military applications or that relate to space, and
- The Department of the Treasury enforces country-specific embargoes and financial sanctions on individuals, organizations and countries.
These agencies govern the shipment or transfer of export-controlled technical data, information, materials and equipment to destinations outside the United States, as well as the provision of access to certain export-controlled technical data, information, materials or equipment to non-U.S. persons within the United States (a “deemed” export). In addition, the Office of Foreign Assets Control (OFAC) regulations under the Department of Treasury impose sanctions and embargoes on transactions or exchanges with designated countries, entities and individuals. In certain circumstances, these agencies may require the University to secure a license before any items or information is exported to another country or shared with a foreign national. Getting a license takes time, potentially several months to a year, depending upon the circumstances. Contact the university ECO as soon as possible for help in determining the need for one.
Penalties for export control violations are substantial, including significant fines, debarment from participation in federal contracting, loss of export privileges, and in some cases imprisonment. In addition to these severe penalties, the potential reputational damage to an institution from violation of these laws could be difficult to repair, possibly resulting in lost opportunities for attracting world-class researchers and/or decreased access to research funding through private industry and government sources.
US export controls exist to protect the national security and foreign policy interests of this country. Export controls govern the shipment, transmission, or transfer of controlled items, software, technology, or services out of U.S. (termed an “Export”). Perhaps of even more consequence to the university, is that the government also restricts the release of certain information to foreign nationals here in the U.S. (referred to as a “Deemed Export”). Export Controls have the potential to severely limit the research opportunities of university faculty and their students and staff, as well as to prevent international collaboration in certain research areas. Non-compliance with export controls can result in severe monetary and criminal penalties against both an individual as well as the university, and can result in the loss of research contracts, governmental funding, and the ability to export items.
United States export controls exist to protect the national security and foreign policy interests of this country. Export controls govern the shipment, transmission, or transfer of certain sensitive items, information or software to foreign persons or entities. Where applicable, they may require authorization from the US Government in the form of an export license. Most of the items, information or software that UNCG ships or shares with its colleagues and research partners is not of a nature that would be restricted for these purposes, nor are they destined for countries or individuals subject to US embargoes or sanctions. UNCG however is required to exercise due diligence, and a Decision Tree has been crafted for the purpose of complying with US trade law while preserving UNC System policies.
Our Decision Tree will walk you through a series of “Yes” or “No” questions that ask about sharing, shipping, transmitting or transferring items, information, or software to help determine if export control regulations are applicable to your activity. Your replies will help determine if an export control license may be required for your situation, and will provide guidance on next steps.
You may find it useful to note that export controls are frequently, but not exclusively, associated with items, information or software within the following general areas:
- Nuclear Technology
- Sensors and Sensor Technology
- Advanced Computer/Microelectronic Technology
- Information Security/Encryption
- Laser and Directed Energy Systems
- Rocket Systems
- Marine Technology
- Chemical, Biotechnology and Biomedical Engineering
- Materials Technology
- Remote Sensing, Imaging and Reconnaissance
- Navigation, Avionics and Flight Control
- Robotics
- Propulsion System and Unmanned Air Vehicle Subsystems
- Telecommunications/Networking
In general, the shipment or transmission of items subject to the export control laws out of the United States or the release of information, technology, or software (including source code) to a foreign national, whether in or outside the United States, is considered to be an export, a “deemed” export if inside the US.
Activities that might trigger licensing requirements:
- International research collaborations;
- Use of foreign national students in research projects;
- International shipments of certain viruses, equipment, software, or technology;
- Overseas travel, including conferences;
- Traveling with certain types of high tech equipment including but not limited to advanced GPS units, scientific equipment, or with controlled, proprietary or unpublished data in any format;
- Sponsored research containing contractual restrictions on publication or dissemination;
- The provision of financial assistance to an embargoed country or person or entity that is considered a blocked or sanctioned party
- The provision of professional services to a person or entity that is a blocked or sanctioned party or individual from an embargoed country.
Some research projects, especially those sponsored by private industry or government defense agencies, may involve the exchange of export controlled data or the use of export controlled equipment. If participating in an export controlled project, certain processes and considerations must be taken into account to remain compliant with U.S. Export Regulations and UNCG procedures:
- TCP (Technology Control Plan) –The purpose of the TCP is to protect export controlled equipment, software, materials, and technology / technical data from access by unauthorized personnel, which may include non-U.S. persons (an export license/exemption may be needed). TCPs must be in place before the research project can begin. All project personnel are required to take on-line export control training and receive a TCP briefing by the Export Control Officer (ECO) prior to start of project.
- Collaboration with scientists outside the U.S. – Some research projects may involve collaboration with scientists who reside outside the U.S. and are citizens of other countries. The information to be shared must be evaluated for possible export control issues prior to the exchange of information, data, technology, software, or equipment. Prior licensing approval may be required.
- Collaboration on-campus with non-U.S. citizen visitors/scientists – Before a foreign visitor or visiting scientist is allowed access to a lab or research project, an export control evaluation must be conducted to make sure the foreign visitor does not have access to export controlled materials, equipment, software, or technology that would require prior licensing approval.
- Shipments of items outside the U.S. – If shipping export controlled items outside the U.S. is applicable to the project, shipping must be coordinated with the ECO. ITAR controlled items will require prior licensing approval from the Department of State and cannot be shipped until license is received. The ECO will apply for all export licenses.
Note: All sponsors, project personnel, foreign collaborators and foreign visitors are screened using Visual Compliance (a web-based screening tool) to make sure the individuals/companies are not on a denied party/entity list.
Definitions
An “Authorized Foreign National” is a Non-US Person who is authorized to receive access to Export Controlled items or information pursuant to an issued and current license or agreement (TAA, MLA), license exemption (ITAR) or license exception (EAR).
In addition to actual shipment of Export Controlled items or information out of the country, export regulations also control the transfer, release or disclosure to foreign persons in the United States of technical data about Export Controlled items or information. “Deemed export” regulations provide that a transfer in the United States of source code or “technology” (EAR) or “technical data” (ITAR) to a Foreign Person is “deemed” to be an export to the home country of the Foreign Person.
A “Defense Article” is any item or technical data identified on the U.S. Munitions List or specifically designated by the Department of State as a Defense Article based on a determination that it (i) provides the equivalent performance capabilities of an item on the U.S. Munitions List; or (ii) provides a critical military or intelligence advantage such that it warrants control under the ITAR. Defense Articles include technical data recorded or stored in any physical form, or models, mockups or other items that reveal technical data directly relating to items on the United States Munitions List. It does not include basic marketing information on function or purpose, or general system descriptions.
A “Defense Service” means furnishing technical data or assistance (including training) to foreign persons (i.e., foreign nationals), whether in the United States or abroad, in the design, development, engineering, manufacture, production, assembly, testing, repair, maintenance, modification, operation, demilitarization, destruction, processing or use of Defense Articles; or, military training of foreign units and forces.
“Effective Control” is defined as “You maintain effective control over an item when you either retain physical possession of the item, or secure the item in such an environment as a hotel safe, a bonded warehouse, or a locked or guarded exhibition facility. Retention of effective control over an item is a condition of certain temporary exports and reexports.”
An “Export” is any of the following activities with respect to items, technology, or software subject to either the EAR or ITAR: (1) physical shipment outside the United States; (2) electronic or digital transmission outside the United States; (3) release or disclosure, including verbal disclosures or visual inspections, to any foreign national, whether in the United States or abroad (see definition of Deemed Export above); or (4) provision of Defense Services, as defined in the ITAR.
Items, technology, or software are “Export Controlled” when they are found in either the Commerce Control List (CCL) of the EAR, or the Munitions list of the ITAR. Under the ITAR, provision of a Defense Service related to a Defense Article is also an Export Controlled activity.
The Export Control Official, as defined by Section 120.25 of the ITAR defines the ECO as a U.S. person who is: (1) directly employed by the applicant or a subsidiary in a position having authority for policy or management within the applicant organization; and (2) legally empowered in writing by the applicant to sign license applications or other requests for approval on behalf of the applicant; and (3) understands the provisions and requirements of the various export control statutes and regulations, and the criminal liability, civil liability and administrative penalties for violating the Arms Export Control Act and the International Traffic in Arms Regulations; and (4) has the independent authority to (i) inquire into any aspect of a proposed export or temporary import by the applicant, and (ii) to verify the legality of the transaction and the accuracy of the information to be submitted; and (iii) to refuse to sign any license application or other request for approval without prejudice or other adverse recourse.
The Export Administration Regulations are issued by the United States Department of Commerce, Bureau of Industry and Security (BIS) under laws relating to the control of certain exports, re-exports, and activities of the “dual use” items found on the Commerce Control List (CCL).
Export control regulations do not apply to information released in academic catalog-listed courses or in teaching labs associated with those courses. This means that a faculty member teaching a University course may discuss what might otherwise be export-controlled technology in the classroom or lab without an export control license even if foreign national students are enrolled in the course. This exclusion is based on the recognition in ITAR that “information concerning general scientific, mathematical, or engineering principles commonly taught in schools, colleges, and universities, or information in the public domain” should not be subject to export control restrictions.
A “Foreign Person” means any natural person other than a citizen of the United States, a lawful permanent resident of the United States, or a protected individual, as defined by 8 U.S.C. Section 1324b(a)(3). It also means any foreign corporation, business association, partnership, trust, society or any other entity or group that is not incorporated or organized to do business in the United States, as well as international organizations, foreign governments and any agency or subdivision of foreign governments (e.g. diplomatic missions).
“Fundamental Research” includes basic or applied research in science and/or engineering 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 research which results in information that is 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: (1) the University or researcher accepts any restrictions on the publication of the information resulting from the research, other than limited prepublication reviews by research sponsors to prevent the inadvertent release of proprietary information provided to the researcher by the sponsor or to ensure that publication will not compromise patent rights of the sponsor; or (2) the research is federally funded and specific access and dissemination controls regarding the resulting information have been accepted by University or the researcher.
The Fundamental Research Exclusion (FRE) applies to (a) information (but not to export controlled items) (b) resulting from “basic and applied research in science and engineering” (c) conducted at an “accredited institution of higher education” (EAR) or “higher learning” (ITAR) (d) “located in the United States” (e) that is “ordinarily published and shared broadly within the scientific community” and (f) that is “restricted for proprietary reasons or specific national security reasons” (EAR) or subject to “specific US government access and dissemination controls” (ITAR). This exclusion generally permits US universities to allow foreign members of their communities to participate in research projects involving export controlled information on campuses in the US without securing a deemed export license. This exclusion generally does not permit the transfer of export controlled material or items abroad, even to research collaborators.
The ITAR, promulgated and implemented by the Department of State’s Directorate of Defense Trade Controls (“DDTC”), regulates Defense Articles, Defense Services and related Technical Data and software that are identified on the United States Munitions List (“USML”), 22 C.F.R. § 121.1, or otherwise designated as a defense Article pursuant to 22 C.F.R. § 120.3.
The term “Media” is defined to include both tangible media, such as paper, computer discs, and CDs, as well as electronic data, regardless of location and or storage methodology.
Information that is published and generally available to the public, as well as publicly available technology and software, is outside the scope of the export control regulations. This exclusion does not apply to encrypted software, to information if there is reason to believe it may be used for weapons of mass destruction, or where the U.S. government has imposed access or dissemination controls as a condition of funding.
is defined as information that is published and generally accessible to the public: (1) through sales at newsstands and bookstores; (2) through subscriptions available without restriction to anyone who may want to purchase the published information; (3) through second class mailing privileges granted by the U.S. Government; (4) at libraries open to the public or from which the public can obtain documents; (5) through patents available at any patent office; (6) through unlimited distribution at a conference, meeting, seminar, trade show or exhibition that is generally accessible to the public and is in the United States; (7) through public release (i.e., unlimited distribution) in any form (not necessarily published) after approval by the cognizant U.S. government department or agency; and (8) through fundamental research.
Technology or software is “released” for export through: (i) visual inspection by foreign nationals of U.S.-origin equipment and facilities; (ii) Oral exchanges of information in the U.S. or abroad (iii) The application to situations abroad of personal knowledge or technical experience acquired in the U.S.”
Instruction, skills training, working knowledge, consulting services and other similar forms.
“Technical Data” means information 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 or documentation. Technical data includes classified information relating to defense articles and defense services, and some software may be considered technical data. This definition does not include educational materials and also does not include basic marketing information on function or purpose or general system descriptions of defense articles.
The Technology Control Plan is the formalization of the processes and procedures the University project personnel will use to ensure that any subject items and information are not disclosed to unauthorized personnel or otherwise exported without the necessary US government authorization.
Release of specific information (or source) code necessary to develop, produce, or “use” a product on the Commerce Control List without an export license or other government approval. “Use” is defined as “Operation, installation (including on-site installation), maintenance (checking), repair, overhaul and refurbishing.”
Operation, installation (including on-site installation), maintenance (checking), repair, overhaul and refurbishing.
U.S. person means a natural person who is (1) a U.S. citizen; (2) a lawful permanent resident of the United States (i.e., a “Greed Card” holder), as defined by 8 U.S.C. § 1101(a)(20); or (3) a protected individual (i.e., a legal asylee, a refugee, or other protected individual under the Immigration and Naturalization Act), as defined by 8 U.S.C. § 1324b(a)(3). It also means any corporation, business association, partnership, society, trust, or any other entity, organization or group that is incorporated to do business in the United States. It also includes any governmental (federal, state or local) entity. It does not include any Foreign Person as defined above.
