I. Federal export control regulations.
These are the U.S. Government regulations which govern what scientific instruments, technologies, software and materials can be accessed by foreign nationals studying, visiting, or working in the U.S., as well as what items can be transferred internationally to certain destinations based on the type of item, end use, end user and country destination. The federal agencies responsible for export control include (but are not limited to) the Departments of Commerce, State, Defense, Agriculture, Energy, Nuclear Regulatory Commission, NASA, National Security Agency, and Homeland Security. The Treasury Department’s OFAC regulations govern travel, academic, research and business transactions with certain specifically-sanctioned countries.
In addition, subset of these regulations broadly restrict a U.S. “Person” (which for these purposes includes a U.S. university) from conducting or facilitating an export (and, in certain cases, conducting a financial transaction) with persons or entities who are denied or restricted because of national security, nuclear, chemical/biological, economic sanctions or other federal concerns.
Depending on several key factors such as a) the country destination to which an item is being transferred; b) the citizenship of a foreign national for whom an item may be controlled; c) the technical specifications or capabilities of an item; or d) whether the intended recipient is denied or restricted party, government agencies may require prior authorization in the form of an “export license” prior to the proposed transfer of the item. The failure to obtain and adhere to an export license constitutes an export violation.
Government agencies have significantly increased their enforcement of export control compliance to include universities and research institutions. BGSU institutionally, as well as individual PIs and administrators, can be held liable for export control violations, with severe monetary penalties and sanctions including loss of export privileges and/or federal debarment.
This Overview is intended to provide BGSU personnel with a concise set of reference material on how Export Control regulations affect research activities, international collaborations, and export-related transactions campuswide. It provides links to key sections of the regulations and certain key procedures that the University uses to implement required controls.
All research and administrative staff are encouraged to read this Overview and use it as an ongoing resource for complying with export controls. In this regard, please see the BGSU’s Export Control Commitment Statement [link], issued by [name].
 For export control purposes, foreign nationals are defined as those individuals who are not U.S. citizens, Permanent Residents (“Green Card” holders) or recipients of Political Asylum status. Hence, foreign nationals are individuals with temporary immigrant visa status including but not limited to H1-B, J-1, F, and B-visa beneficiaries.
II. "exports" as defined under regulations.
“Exports” are defined in two principal ways:
- International shipments or transfers of items or data abroad by any means; cargo shipments; electronic data transmission (email), spoken communication, hand carried articles, fax, and courier.
- “Deemed exports”: foreign national access and/or use of export controlled items, technology, materials, software or data (hard or soft copy) occurring in the U.S (see Footnote 1 below for definition of “foreign national”). The export is “deemed” to occur upon the foreign national’s return to his/her country of citizenship or third country. However, if the access to or use of the controlled item (activity) would have required an export license given the foreign national’s citizenship, the violation occurs immediately when, in fact, such unauthorized activity occurs.
What makes an item export “controlled” for purposes of these foregoing definitions is explained below.
III. research activities affected by export controls.
The vast majority of research that we conduct at BGSU is defined as “fundamental research” (i.e. funded research which is neither subject to publication and/or citizenship restrictions), and is covered under the Fundamental Research Exclusion (FRE). Under the FRE, foreign nationals may participate in the research, subject to two restrictions or exceptions discussed in greater as follows.
- BGSU may, on rare occasion, conduct a subset of restricted research through proprietary industry partnerships that are subject to foreign national deemed export requirements. These programs fall outside the coverage of the FRE. Because of the physical and virtual restrictions which export restricted research may require, restricted funded programs must be carefully evaluated to determine whether, BGSU has the infrastructural capability to conduct the restricted research, as well as to evaluate the logistical impact on our otherwise open laboratory research environment. If approved, restricted programs may require that researchers and staff operate under a Technology Control Program (TCP) which documents required export control safeguards. In certain cases, foreign nationals may be authorized to participate in the export controlled research based on obtaining a specific export license for that individual and his/her research activity.
- In addition, our researchers may use a variety of export-sensitive research equipment, software, and technology which in certain circumstances may also trigger foreign national restrictions, notwithstanding the fact that they are being used to pursue fundamental research in an otherwise open laboratory environment.
As a global institution, we engage in a broad range of international
activities that require us to transfer items internationally and
engage with many individuals and institutions outside the U.S. While
the vast majority of these international transactions will not trigger
license requirements, BGSU must nonetheless ensure that any such
transactions which do require export licenses are timely identified,
evaluated and properly managed.
 Fundamental Research Exclusion (FRE): fundamental research means that no publication or citizenship restrictions are accepted from any sponsor (industry or government agency) by any means (prime contract or flow-down), explicitly or unofficially. A publication restriction is one in which a sponsor requires withholding of research results for any reason other than a) to make sure that no proprietary data provided to the PI is disclosed in the published research results or; b) the time necessary to file a patent application. A sponsor’s general requirement that publication be withheld “pending review” or review for a period of time beyond what is reasonably required to filter out proprietary data would constitute a publication restriction and disqualify the project from FRE protection. A citizenship restriction limits research participation to U.S. persons or reserves the right to determine which researchers, by nationality, can participate in the project.
IV. Key Export Control Regulations.
Export controls are primarily implemented through five regulatory regimes that include the following:
1. Export Administration Regulations (EAR): These are the Commerce Department’s “dual-use” controls under Title 15 CFR 700-799 governing hardware, materials, equipment, software, technology and technical data that Commerce defines as “dual use” i.e., having civilian and inherent defense or nuclear application. Commerce places destination (country) and end-use/user-based controls by requiring prior authorization (a license) prior to export. Not all items on the Commerce Control List (CCL) are controlled for all countries. The specific type of control such as “National Security,” “Nuclear Proliferation,” “Missile Technology” or “Biological/Chemical” (among other types controls), which Commerce determines based on an item’s specifications and capabilities, determines what types of items are controlled for particular countries. For example, an item that may not require an export license to send to France or share with a French foreign national in the U.S. may require an export license to send to Singapore or expose to a Singaporean studying or working in the U.S.
With respect to dual use controlled technology, this does not include technology or data which is already in the public domain or, as the pending result of fundamental research, is intended for publication (or could be published) so as to reside in the public domain. Rather, controlled technology typically encompasses “use” “development” or “production” technology associated with dual use export controlled equipment and software that is not intended for or restricted from publication.
With respect to “use” technology and in order for a deemed export to occur, six activities must occur through which a foreign national gains an understanding of the design of the item which renders it controlled: these activities include operation, installation, maintenance, repair, overhaul, and refurbishment. While technically, the definition requires all six activities to have occurred, in reality, a controlled transfer can occur through a combination of two or more of these activities (but not necessarily all six) where controlled design/engineering information is transferred.
With respect to “development” technology, a deemed export can occur where any one aspect of the definition of “development” involves a foreign national whose country is controlled for the development of that particular item. Development is related to all stages prior to serial production, such as: design, design research, design analysis, design concepts, assembly and testing of prototypes, pilot production schemes, design data, process of transforming design data into a product, configuration design, integration design, layouts.”
“Production” technology is typically associated with the technology to manufacture or assemble an item, including but not limited to prototype production, testing, and quality assurance.
Finally, the fact that BGSU can purchase a dual use item commercially for research purposes, does not mean that the item is not export controlled: if the item meets the technical definition of an EAR dual use controlled item, BGSU assumes the compliance responsibility for complying with applicable foreign national use restrictions, as well as license requirements for (or prohibitions against) transferring such items internationally. (See also Section 5 below pertaining to procurement of export controlled items).
2. International Traffic in Arms Regulations (ITAR): These are the State Department’s defense-based controls under Title 22 CFR 120-129 governing defense articles and activities. Defense articles are defined generally as hardware, materials, equipment, software, technology and technical data specifically designed or modified for defense or military application, without a civil performance or use equivalent. These items are referenced in the ITARs United States Munitions List (USML). The ITAR governs many types of commercially available, “best in class” items originally designed according to military specifications that are commonly used in research activities, including but not limited to the Engineering, Biological, Information, and Space sciences. Examples include certain low light, infrared cameras, Class IV lasers, or radiation hardened, and space-qualified devices that are used in research.
Unlike the EAR’s dual-use universe, exports of ITAR items are subject to licensing regardless of destination or end user/use, unless a specific license exception is met. In other words, all destinations potentially require licenses. And further, unlike the EAR, certain countries such as China and its foreign nationals, are per se prohibited countries under ITAR: no licenses will be issued.
For deemed export purposes, under the ITAR regulations, access is interpreted as visual access or potential cyber access: access alone is considered sufficient to trigger the “release” of ITAR technical data, regardless of actual intention or need to use the ITAR item itself. Hence, in an otherwise “open laboratory” environment where research is conducted under the FRE, the presence of an ITAR instrument presents logistical challenges toward conducting fundamental research. Even if an ITAR instrument is a necessary tool to advance fundamental research, BGSU would have to implement a Technology Control Plan (TCP) for that instrument to secure it from unauthorized access. Similarly, ITAR-controlled data must be strictly segregated from other non-ITAR data, given the minimal foreign national access threshold that triggers a release of ITAR technical data.
As with dual use items, the fact that we are able to purchase an ITAR item in the U.S. through a commercial instrument supplier does not mean that it is not controlled: if the item meets the technical definition of an ITAR item, BGSU assumes the compliance responsibility for complying with foreign national access and use restrictions, as well as license requirements for (or prohibitions against) transferring such items internationally. Hence, understanding when we are procuring ITAR research tools is an important part of our compliance program.
In addition, the ITAR also regulates a category of activities defined as “defense services.” Essentially these are activities which either involve disclosing ITAR technical data to foreign nationals (or data related to a defense article) even in the pursuit of fundamental research; or disclosing any technical data (whether or not controlled) to a foreign national or defense entity or organization for a defense purpose. Activity that meets either of these “defense service” definitions likewise triggers a licensing requirement or must otherwise satisfy a license exemption.
3. Office of Foreign Assets Controls Regulations (OFAC): These are the Treasury Department’s economic embargo controls under Title 31 CFR 500-598 governing which types of transactions are restricted with certain countries that OFAC defines as “terrorist-sponsoring” nations. Exports constitute only one of many types of restricted transactions which OFAC defines as providing a restricted “service.” While OFAC maintains economic embargoes with numerous countries, entities and individuals, the broadest embargoes impact exports to Cuba, Iran, Syria, and Sudan. Transactions with these countries (including, potentially, activities normally considered part of international research collaboration) may require an OFAC license.
4. Nuclear Regulatory Commission Regulations (NRC): these regulations govern exports (as well as transfer within the U.S.) of certain nuclear equipment, technology, and materials based on agency license approval.
5. United States Department of Agriculture Regulations (USDA): these regulations govern exports (as well as transfer within the U.S.) of certain biological materials, including (with respect to Biosafety Level 3 and 4 research) access and use of certain materials by foreign nationals. In some cases, USDA jointly controls restricted materials and research with the Commerce Department’s (EAR) dual-use regulations.
 Publication: Information becomes "published" or considered as "ordinarily published" when it is generally accessible to the interested public through a variety of ways. This includes 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 includes the following: readily available at libraries open to the public; issued patents; and releases at an open conference, meeting, 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 not necessarily a recording) of the proceedings and presentations.