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Export Compliance: Example Scenarios

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Background

Export controls in a University setting can get complicated. To help employees, researchers and students evaluate their project or activity against export controls we've compiled a short list of common scenarios.

Sharing information on campus

I am a researcher at the UW. I am only conducting research on campus with students and other faculty and don't plan to ship anything outside the United States. Export controls don't affect me, right?

They do. An "export" also includes furnishing technical data to foreign persons or releasing technology or software to foreign nationals within the United States and abroad. These types of exports are called "deemed exports" because the regulations deem them to be the equivalent of sending the same information (technical data or technology) or software to the foreign national's home country. Deemed exports can occur even when providing technical data in the form of graphs, specifications, or other technical information to a foreign student working in your lab. Whether it is a deemed export depends on whether the information or software provided is subject to and listed on the Export Administration Regulations (EAR) Commerce Control List (CCL) or is considered technical data under the International Traffic in Arms (ITAR).

Links to both the EAR and ITAR are available at:

Foreign national participation in lab research

I have a foreign post-doc student beginning next spring in my lab. Do I need to get an export control license to allow this student to work on my research projects?

No, you do not need a license simply to allow a foreign student to work in your lab with you. Information arising from basic and applied research in science and engineering on campus, where the resulting information is ordinarily published and shared broadly with the scientific community, is excluded from the scope of the ITAR and EAR. This allows the University to proceed with fundamental research projects across campus and engage foreign students in the process without obtaining a deemed export license.

In addition to this exclusion, known as the fundamental research exclusion, there are two other exclusions that apply to common university information-sharing. The education exclusion allows Universities to teach common science and engineering principles as well as other types of educational material commonly taught in catalog courses and associated teaching laboratories to all students without the need for a license. In addition, information that is in the public domain is not subject to the ITAR and EAR.

If you plan to share information, technology, or software to the foreign student that does not fall into one of these exclusions (such as incoming proprietary information) then you should determine if it is controlled by the regulations. Please contact exports@uw.edu.

Developing software and restricting access

I have created a software system that is used on a closed-access system that requires a sign-in and password. Am I exporting this software and is it subject to the export control regulations?

If the software is non-encryption software and was created as fundamental research, it is excluded from the scope of the EAR and ITAR. It may be shared with others without obtaining an export license. However, it is advisable to not use a sign-in/password system unless a sign-in is available to everyone, as such a requirement may be considered an access control that disqualifies it from the exclusion.

Be aware that some types of encryption software fall outside the fundamental research exclusion require notification to the U.S. Department of Commerce Bureau of Information and Security and may require a license.

Signing confidentiality agreements

I am being funded by industry sponsored agreements more and more these days. Understandably, they want to review the results of the research so that publication does not expose proprietary information contained within the results. Before I decided to do the research, I signed a Confidentiality Agreement to this end. Does this mean the information is no longer considered "fundamental research"?

Any publication restrictions beyond limited sponsor review to remove proprietary information or protect patentable data will render your project as outside the fundamental research exclusion. This is because your research results are no longer those that you can "ordinarily publish and share broadly" with the scientific community.

Any agreement legally binding the University may not be signed by a PI or other faculty member or staff without signature delegation authority from an authorized official. All CDAs, NDAs, PIAs, or other data restriction agreements should receive review by the appropriate office, either the Center for Commercialization (C4C) or the Office of Sponsored Programs.

Receiving sponsor-provided restricted data

I do a lot of national defense research work in which I receive federal funding, either directly or flow-through from the sponsor. As part of the work, I receive data marked "For Official Use Only (FOUO)" from the sponsor. I intend to have several foreign students work with me on these projects. Does the fundamental research exclusion allowed me to have a foreign national work with this information?

The Fundamental Research Exclusion (FRE) applies to information that is the result of fundamental research. Incoming data with access restrictions associated with it do not qualify as fundamental research data.

FOUO may or may not be considered export controlled, depending on whether the information/data is listed on either the Commerce Control List (CCL) or the United States Munitions List (USML). A review of the data against these lists would need to be carried out to determine whether you may allow foreign students to work the data. For more information about assessing the export controls for incoming data, please use the Catalyst Decision Tree.

All access restrictions and protection measures associated with FOUO information must be followed, whether the data is export controlled or not.

Shipping research supplies overseas

I ship research supplies overseas on a regular basis. This includes lab supplies such as pipets, collection kits, various meters and regulators, and some communication devices. Do I need to check in with exports@uw.edu every time I ship these items?

No. However, your responsibility is to be aware of the type of items controlled by the EAR and ITAR and know whether your item is considered a commercial item or a defense article controlled by the CCL or USML. There are some routine research items or materials that are controlled. This would include medical kits, some pathogens, some lab equipment, engineering materials, and telecommunication devices.

Please check these lists and contact exports@uw.edu if you need help determining whether your items are controlled. Any determination about export licensing needs should be kept for five years with your shipping documentation.

Sending materials via Material Transfer Agreements (MTAs)

I have created a patentable innovation that a company would like to review for IP licensing purposes. I want to share the details of this invention with the company but the company is located in Indonesia and I am not sure if I need an export control license.

You may need an export license depending on what it is and who is receiving it. The confidentiality agreement (CDA) or other instrument used to share the information should include specific language about export control laws and regulations and the parties respective responsibilities about exporting and re-exporting the material. Additionally, you or the Center for Commercialization (C4C), who will assist you with the CDA, should contact exports@uw.edu for assistance with an export license determination.

Research with colleagues abroad

I will be traveling to China to do research work with my collaborator, who is a faculty member at a university in Beijing. I will be providing her with my research results from my studies here at UW but also undergoing further research at her lab. Do I need to be concerned about export controls?

Your research results produced here at the University of Washington, if without publication or dissemination restrictions, are considered fundamental research results and fall under the fundamental research exclusion. However, further research efforts in China may or may not fall within this exclusion from the export control regulations. Please check the CCL and USML to see whether your research in China will involve controlled technology, information or software. If so, please contact exports@uw.edu to determine what your next step is in order to undergo the collaboration.

Traveling with a laptop

I travel with my laptop, which I use for my project, "Genetic Mutation of Cancer Cells" here at UW. It contains my fundamental research results as well as commercial software. Do I need a license to travel with the laptop?

Most likely not. Under the Export Administration Regulations (EAR), only those items listed on the Commerce Control List (CCL) and controlled to your particular destination require a license unless they fall under a license exception. Please check the EAR's CCL to see if your laptop is controlled to your place of travel. Further guidance regarding travel with your laptop is found in the UW Researcher's Guide for the Export of Computers, Software, and Associated Data.

Keep in mind that most commercial software, though controlled, is not limited to most destinations and you may travel without the need for an export control license. However, if you have proprietary data, FOUO, or otherwise restricted data, information or software on your laptop, you will want to check that the information is not export controlled before traveling outside the United States.

Performing classified research

I do classified work for the Navy. I have security clearance as do all researchers who work on the classified project. I plan to have a visitor come through my lab next week and the individual, who does not have security clearance, will not be exposed to the classified portions of the work. This visitor will only be learning about the non-classified aspects of the work. Since the government classifies export-controlled information, I don't need to worry about an export control license, correct?

It is wrong to assume that the Navy classifies all information that is export-controlled for national security reasons. In fact, there are various other lower categories of information other than classified that may be export-controlled. Whether information or technology is export-controlled depends on whether it is regulated by the Commerce Control List (CCL), the U.S. Munitions List (USML).