If my work involves technology which is described on the USML or CCL, does that mean I'm going to need an export license?
Not necessarily. There are several considerations that may exempt your work altogether. Generally speaking, technology or software that is “publicly available” is not subject to U.S. export controls. This includes technology or software that:
- Is educational as defined in the regulations (Education Exemption), such as information taught in a catalog-course class;
- Is already published or will be published (Publicly Available or Public Domain Exemption); or
- Arises during or results from “fundamental research” (Fundamental Research Exemption).
These exemptions and some potential limitations are described in greater detail below.
Physical shipments, such as exports of tangible items (e.g. lab equipment, computers, etc.) do not benefit from the above exemptions and are always subject to U.S. export control requirements. In such cases, the exporter is responsible for determining whether the item is controlled for export to the country or end-user in question.
1. Education Exemption
In most cases, a license is not required to share with foreign nationals “information concerning general scientific, mathematical or engineering principles commonly taught in universities.” This includes information that is released by instruction in catalog courses and associated teaching laboratories of academic institutions.
So, if you're only teaching it in the classroom or lab as part of an official Bucknell course (excluding senior design-type "courses" where students are conducting their own research), you do not need to worry about export controls.
2. Publicly Available / Public Domain Exemption
Technology and software information that is already published or will be published is not subject to export controls. Information is “published” when it becomes generally accessible to the interested public in any form, including:
- Publication in periodicals, books, print, electronic or any other media available for general distribution to any member of the public or to a community of persons interested in the subject matter either free or at a price that does not exceed the cost of reproduction and distribution;
- Readily available at libraries open to the public or at university libraries;
- Patents and open (published) patent applications available at any patent office; or
- Release at an open conference, meeting seminar, trade show or other open gathering.
Note that this exemption extends to technology that is made public by the transaction in question. Therefore, sending a paper to an editor or publisher abroad for review to determine whether it will be accepted for publication is not a transaction subject to export controls regulations.
3. Fundamental Research Exemption
Fundamental research is defined 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.
Information resulting from “fundamental research” is typically excluded from export controls, unless it is subject to limitations on publication or dissemination such as would be found in a non-disclosure agreement (see Limitations below). As a result, a license is not required to release information that qualifies as “fundamental research” to a foreign national in the United States.
The Fundamental Research Exclusion may be unavailable if an employee or the university accepts any contract provision, confidentiality agreement, nondisclosure agreement or other restrictive clause or condition that:
- Gives the sponsor a right to withhold information from dissemination. For example, this type of action may occur through a required pre-publication review;
- Treats research results as proprietary or confidential;
- Includes an expectation that confidential or proprietary sponsor information will remain unpublished;
- Restricts access to and disclosure of research results; or
- Otherwise violates the openness in research.
As you can see, it's in your and Bucknell's best interest from a compliance standpoint to avoid entering into confidentiality provisions without first evaluating whether the provision is necessary. If the provision is necessary, it will be important to include certain language regarding export controls in the agreement, and to limit the agreement to a specific project and time period.
Dissemination or publication restrictions can take many forms. Export controls may apply if you or Bucknell accept research restrictions, including those that:
- Forbid or restrict the participation of foreign nationals;
- Limit research participation to “U.S. persons” or “U.S. citizens”;
- Designate the research activity, content or results as “subject to export controls”;
- Include a sponsor initiated or Government flow-down export control clause (other than a general statement of compliance);
- Require a security clearance for participants; or
- Otherwise limit the openness in research activities.
As long as a project qualifies as 'fundamental research,' under the standards discussed above, it is not subject to U.S. export control requirements even if it occurs as part of a collaboration at a foreign location.
However, there are heightened requirements on international collaborations involving countries subject to U.S. sanctions regulations. These countries include, but are not limited to, Cuba, Iran, North Korea, Sudan and Syria, as well as the geographic region of Crimea.