Debunking myths about export controls and UM research

By Suzanne Tainter, DRDA

At a recent meeting for some 200 U-M research administrators, Division of Research Development and Administration associate director Elaine L. Brock and executive director Marvin G. Parnes debunked several myths about how federal export control statutes and regulations affect University sponsored activities. And they offered some practical suggestions for faculty and administrators for coping with the regulations.

What are export controls?

Myth #1: 9/11 was the impetus for all these export laws.

Export laws and regulations have been on the books for decades, explained Brock. This national policy actually dates to a 1985 national security directive.

Myth #2: Export controls only apply to weapons.

• ITAR (International Traffic in Arms Regulations), which cover technology related to defense/space, is overseen by U.S. Department of State. Subject to ITAR is anything with a substantial military application including research, training or assistance, and "technical data."
• EAR (Export Administration Regulations) oversight is by U.S. Department of Commerce. Generally any technology or information that has a dual use -- military and civilian-- is subject to EAR, Brock said.
• Foreign Asset Control regulates transfers to embargoed countries, organizations, and individuals, including payments, services, or travel to countries with special controls, such as Cuba. Oversight is by U.S. Department of Treasury.

Myth #3: "Export" means physical transfer of something from the U.S. to a foreign country.

Export includes:

• Sending or taking articles out of the U.S.
• Disclosure or transfer of defense articles to any foreign government in the U.S.
• Disclosure or transfer of covered technical data to a foreign person in the U.S. or abroad
• Performing a defense service on behalf of or for the benefit of a foreign person in the U.S. or abroad
• Training or assistance in developing defense articles even if publicly available information is used.

Myth #4: You can disclose whatever you want to anyone in the U.S. legally.

Visa status alone is not the determinant of whether an export can be made to a foreign person, explained Brock. Persons who are legally in the U.S. for educational and research purposes may still be restricted from participation in certain activities or receipt of certain information. Permissibility is made on a case-by-case basis taking into account technology classification, activity, status of recipient, conduct of both parties and other factors.

Myth #5: Fellowships limited to U.S. citizens are now prohibited by University policy.

As long as there are no other restrictions on foreign nationals' access to information-- the U.S. citizen fellow can freely talk to and collaborate with foreign students-- and there are no restrictions on publication, the University will continue to participate in these fellowship programs.

Myth #6: Export regulations do not apply to universities.

"Fundamental Research" conducted in the U.S. by an accredited college or university is exempt from export controls. The definition of fundamental research covers both basic and applied research and is research where resulting information is ordinarily published and shared broadly in the scientific community.

University based research is no longer "Fundamental Research" if the university or its researchers accept:

• restrictions on publication of scientific and technical information resulting from the project or activity (for example, at the request of an industrial sponsor)
• "pass through" export restrictions from sponsors
• restrictions on participation by foreign nationals
• "side deals" agreeing to any of these restrictions

Myth #7: These regulations are so invasive we can never use foreign nationals on our projects.

Step 1: Review the proposal and the RFP to determine if the technology or science or activity is subject to export controls or sanctions.

Step 2: Determine if export regulations apply.

Step 3: Determine if an exclusion or exemption applies.

Step 4: Determine if the project can be rewritten to avoid export control regulations.

Step 5: Seek internal approval for exceptional cases.

Other contexts where export issues arise, Brock explained, include nondisclosure agreements, materials transfer agreements, facilities access agreements, purchasing, and Web transfers of information.

Myth #8: Faculty and administrators can't do anything to help.

• Limit activity to "fundamental research"
• Use publicly available information
• Avoid/limit use of proprietary information
• Avoid contract restrictions on dissemination of results
• Define Scope of Project to avoid or limit export issues
• Seek alternative implementation where export control cannot be avoided. Avoid ITAR if possible. EAR offers more exceptions and controls fewer services
• Separate controlled tasks from uncontrolled and minimize time and resources for controlled tasks
• Assign the PI alone to controlled tasks and keep the time commitment short; if students are assigned to a controlled task, keep it very short.

Myth #9: It's no big deal if we don't comply with export regulations

Myth #10: Other universities have this all figured out.

1. Maintain an open environment with no restrictions on publication
2. Should not accept any project that allows the exclusion of U-M personnel from participating in research due to their ethnicity, national background or nationality, unless a strong case can be made that the project is clearly in the "public interest."

Acceptance of research with restrictions has to be approved by the Vice President for Research.

To learn more about export controls, see the UM Research Administration Web. Look under "Policies" or in the Index.

Contact DRDA for help with export control regulations.