What's All This About Export Controls?

Alice P. Gast and Claude R. Canizares

You are on an airplane at about 37,000 feet, heading abroad. You have remembered your passport and you are perusing the OSP (Office of Sponsored Programs) briefing document on deemed exports and suddenly you wonder whether you are exporting something. As you look around the airplane and see many fellow international travelers pounding away on laptops, using personal digital accessories, and listening to iPods, you think, what is an export anyway?

Our research and academic lives have become so collaborative, so interactive and so global that the real issues in export controls needed to be stated so that all of us can get some sleep on those airplanes. This article is intended to be a brief overview of this complex but important issue, and how it affects us.

Export control laws have for many years been a mechanism to control the transfer of goods having military applications; in the late 1970s they also became a means to limit the export of goods or technologies having commercial value.

Export of military hardware and technical data is controlled by the International Traffic in Arms Regulations (ITAR) dating back to 1954, while the export of commodities of commercial interest (and the technical data related to their design, manufacture and utilization) is controlled by the Export Administration Regulations (EAR) from 1979. The ITAR are administered and enforced by the Department of State, whereas the EAR are under the Department of Commerce.

Increased national attention to export controls occurred in the early 1980s with concerns about technology transfers to the Soviet Union. University reaction led to a set of changes and a status quo we have lived with ever since. In 1999, concerns about transfer of missile and satellite technology to China rekindled national attention to export controls, and the climate chilled further after September 11, 2001. Now many federal agencies, as well as industries, are incorporating export control language into research grants and contracts. But even without such language, export controls are the law, and we all must obey them (the law, and the penalties, cover individuals as well as institutions).

What is controlled?

Generally speaking the ITAR and EAR regulate items and materials (equipment, biologicals, chemicals), and information (technical data, including "services" associated with the controlled items and materials). In addition to more obvious military hardware, the ITAR controls all satellites, including research satellites, associated equipment, and some devices with military applications like accurate GPS equipment and even research submersibles. EAR controls a long list of equipment, for example high bandwidth oscilloscopes, large fermenters, certain microprocessors, and encryption software. Both regulations control chemical weapons convention chemicals, select biological agents and toxins, and certain other hazardous chemicals and biologicals.

What is an export?

The term export, as used in export control regulations, has an expansive meaning. The transfer of actual goods between countries (whether the transfer abroad is to a U.S. citizen or a foreign national) is controlled, as well as the disclosure or transfer of certain technical information to a U.S. citizen abroad or to a "foreign person" abroad or even within U.S. borders. The term "foreign person" essentially includes anyone who is not a U.S. citizen or permanent resident (although for some purposes, citizens of certain countries may be exempt). As is evident in many instances, export is defined so that it could preclude the participation of foreign graduate students or post-docs in research that involves covered technology, without first obtaining license from the appropriate government agency.

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The Fundamental Research Exemption

Since 1985, the federal government's policy , as articulated by President Reagan's National Security Decision Directive, NSDD-189, has exempted most university research from the export control regulations.

NSDD-189 (issued in1985 and reaffirmed in 2001)

"Fundamental research' means basic and applied research in science and engineering, the results of which ordinarily are published and shared broadly within the scientific community, as distinguished from proprietary research and from industrial development, design, production, and product utilization, the results of which ordinarily are restricted for proprietary or national security reasons.

"It is the policy of this Administration that, to the maximum extent possible, the products of fundamental research remain unrestricted. It is also the policy of this Administration that, where the national security requires control, the mechanism for control of information generated during federally-funded fundamental research in science, technology, and engineering at colleges, universities and laboratories is classification. No restriction may be placed upon the conduct or reporting of federally-funded fundamental research that has not received national security classification, except as provided in applicable U.S. Statutes."

Research by Primary Sponsor FY2004 (click on image to enlarge)

Both the ITAR and EAR contain specific language exempting fundamental research and, in the case of EAR, instruction in catalogued courses in universities from export controls, and in the case of ITAR basic math and science commonly taught in schools. Under our current interpretation of the fundamental research exemption, we can continue to carry out research without export control licenses provided that the research is openly published and shared broadly. Note that any research involving proprietary information or other publication restrictions or participation restrictions may remove the fundamental research exemption, and the decision about whether export control licenses will be needed should be discussed with our Office of Sponsored Programs.

The fundamental research exclusion applies literally to information (but not to export controlled materials or items) resulting from or arising during basic and applied research in science and engineering conducted at an accredited institution of higher education located in the United States that is ordinarily published and shared broadly within the scientific community and that is not specifically restricted.

This exclusion permits us to allow foreign members of our community to participate in research projects involving export-controlled information on campus in the U.S. without a deemed export license. This exclusion does not permit the transfer of export-controlled information, materials, or items abroad, even to research collaborators, except under very limited circumstances .

Deemed Exports

Much of the recent concern over export controls centers around the concept of "deemed export." What does this mean that I can make a "deemed export" on U.S. soil? "Deemed" exports are transfers of controlled technology to foreign persons, usually in the U.S., where the transfer is regulated because the transfer is "deemed" to be to the country where the person is a citizen. Fortunately once again, most of our research and interactions with students, postdocs, visitors, and colleagues are covered by the fundamental research exemption. However, a recent set of reports by the Inspectors General (IG) of several federal agencies have put the spotlight on deemed exports at universities, as well as at national labs and in industry. MIT, together with other major research universities and organizations like the American Association of Universities, are actively involved in discussions with these agencies to clarify the implications of the IG reports. While we are hopeful that the spirit of NSDD 189 will prevail, it is too early to predict the outcome of these discussions.

What does this mean for you?

We believe that the majority of the research carried out by MIT faculty and research staff should not be affected by export controls. On the other hand, some individuals have already had to modify their research activities or seek licenses in the conduct of their research projects. We recommend that anyone who thinks that his or her activities might be subject to export controls consult the resources noted below and, if necessary, contact your OSP representative for further information.

One thing that is clear is that we cannot ship items or communicate technical data covered by ITAR or EAR to certain other countries without seeking permission to do so . While most of our research and many countries are not on this list, it is important to understand its scope. There is an excellent table and other resources available on the OSP Website: http://web.mit.edu/osp/www/resources_export.htm. If in doubt, use these resources and/or contact our Office of Sponsored Programs with your concerns.

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