While exports are commonly associated with the shipment of a tangible item across the U.S. border, export controls have a much broader application. One of the most difficult issues with respect to export controls is the fact that an export is defined to include the transfer of controlled information or services to foreign nationals even when the transfer takes place within the territory of the United States. Though taking place inside the U.S., the transfer is “deemed” to be an export (as if exporting to the foreign national's home country). Both the ITAR and the EAR provide for deemed exports, even though in the case of defense exports the term “deemed export” is not used in the regulations. While the ITAR distinguishes between the transfer of technical data and providing a defense service in the definition of export, the EAR generally provides for the release of technology.
The issue of deemed exports is particularly relevant to university research because of the activities that normally take place at a university, teaching and research. Whenever teaching or research activities are related to controlled equipment or technology, the involvement of foreign students or researchers may trigger export control compliance issues.
Proprietary information provided to the University under a non-disclosure or other confidentiality agreement about defense articles or commercial products (in production or in development) is generally considered to be export controlled and should not be accessed by foreign nationals without prior OEC review and approval. OEC works closely with the contract negotiators in the Office of Sponsored Programs (OSP) to facilitate this process. Researchers wishing to enter into a non-disclosure agreement to receive proprietary information should complete a electronic Non-Funded Agreement (eNFA) form.
OEC will review the information provided on the NDA Intake Form and in the proposed agreement to evaluate the export control status of the proprietary material to be exchanged and work with the OSP negotiator and other party to ensure the terms of the agreement are appropriate. If the information to be exchanged is subject to control under the ITAR, the PI will need to develop a Technology Control Plan before the agreement can be finalized and information transferred. For non-ITAR controlled proprietary information, the OSP negotiator will send an acknowledgement containing the export control status to the PI for signature once the agreement is finalized; in some cases everyone who will need access to the proprietary information will be required to sign the acknowledgement.
Types of Transfers That May Be Exports
Export controlled information may be transferred or released through oral, visual, or other means. The following are examples of how an export may occur:
- allowing virtual or physical access*;
- a demonstration, briefing or presentation;
- a conversation (in‐person or telephone);
- laboratory or plant visit;
- faxes or letters;
- hand-carried documents, hardware or drawings;
- design reviews;
- the exchange of electronic data or communication;
- posting non-public data on the Internet or the Intranet; or
- collaborating with other universities / research centers through research efforts.
*The EAR and ITAR differ in controls related to access. Under the ITAR providing a foreign national the ability to touch, see or use a defense article would be an export, while under the EAR it would only be an export if it released technology or software subject to the EAR as described in 734.2(b)(2).