Research and Contract Compliance
Balancing Security and Openness in Research, Education and Public Service
GRS can assist with providing training and support to faculty, staff, and students concerning regulatory requirements to ensure the protection of information in their possession while performing work on contracts, programs, bids, or research and development efforts.
GRS assists with risk, export, and security reviews for the following activities:
- International agreements, including research agreements
- International travel (students, faculty and staff)
- International students (visa applications, federal requirements, etc.)
- Hosting visitors (affiliates, visiting researchers or scholars, etc.)
- International purchasing and shipping (customs regulations, international taxes, etc.)
- Research grants/contracts with security and export related requirements
Contact the GRS staff to assist in evaluating export controls and information security requirements and establishing necessary measures to comply with contractual and governmental regulatory requirements.
An export is any oral, written, electronic or visual disclosure, shipment, transfer or transmission of commodities, technology, information, technical data, assistance or software codes to:
- Anyone outside of the U.S.
- A “foreign national” wherever they are (deemed export)
- A foreign embassy or affiliate
Export controls are U.S. laws and regulations that regulate and restrict the release of critical technologies, information, and services to foreign nationals, within and outside of the United States, and foreign countries. U.S. export controls exist to protect the national security and foreign policy interests of the United States. Faculty, staff and students may intersect with federal regulations that impose access, dissemination or participation restrictions on the transfer of items and information regulated for reasons of national security, foreign policy, anti-terrorism or non-proliferation.
A deemed export is the release of technology or information to a foreign national in the U.S., including students, post-docs, faculty, visiting scientists or training fellows.
Deemed exports are the most common exports for the university.
A Foreign National is any person who is NOT:
- A U.S. citizen
- Permanent resident alien (Green Card Holders)
- Temporary resident under amnesty provisions
The following are considered foreign nationals or foreign persons:
- Foreign corporation, business association, partnership entity or group not incorporated in the U.S.
- Person in the U.S. in non-immigrant status (such as international students or F1 visas, visiting scholars or any person in the U.S. on a visa to include employees on J1 or H1B visas.)
It depends on the equipment. Operation of a defense article by foreign nationals is prohibited, unless a license is obtained prior to operating.
Operating EAR/CCL items equipment by a foreign national in the U.S. is not controlled by the export regulations. In the U.S., any person (including foreign nationals) may purchase export-controlled commodities and the "deemed" export rule only applies to technical information about the controlled commodity. As such, while the operation of equipment inside the U.S. is not controlled, the transfer of technical information relating to the use (i.e., operation, installation, maintenance, repair, overhaul and refurbishing) of equipment may be controlled in certain circumstances.
For example, if the manufacturer of the equipment provided the University some confidential, proprietary information about the design or manufacture of the equipment, then the University might need a "deemed" export license to provide such proprietary information to a foreign national, especially if shipment of the item to the home country of the foreign national would require an export license. In sum, the export regulations allow foreign students, researchers and visitors to operate (and receive information about how to operate) controlled equipment while conducting fundamental research on U.S. university campuses or while studying at the institution, as long as the technical information about the controlled equipment qualifies as "in the public domain" or "publicly available.”
Research is not subject to export controls if it qualifies for at least one of three exclusions:
Fundamental Research Exclusion is a broad-based general legal exclusion that helps to protect technical information (but not tangible items) involved in research from export controls. It is defined as basic and applied research in science and engineering conducted at accredited U.S. institutions of higher education where the resulting information is ordinarily published and shared broadly within the scientific community. Such research can be distinguished from proprietary research and from industrial development, design, production, and product utilization, the results of which ordinarily are restricted for proprietary reasons or specific national security reasons. Research qualifying as “fundamental research” is not subject to export controls.
University research will not qualify as fundamental research if the university or researcher accepts any restrictions on the publication of the information resulting from the research, other than limited prepublication reviews by research sponsors to prevent inadvertent divulging of proprietary information provided to the researcher by sponsor or to ensure that publication will not compromise patent rights of the sponsor. There is no general fundamental research exclusion that applies to defense articles (as opposed to technical data) under the ITAR; however, there are exclusions that apply to specific articles under certain circumstances.
Fundamental research permits U.S. universities to allow foreign members of their communities (e.g., students, faculty, and visitors) to participate in research projects involving non-ITAR export-controlled technical information on campus in the U.S. without a deemed export license. Further, technical information resulting from fundamental research may be shared with foreign colleagues
Public Domain Exclusion applies to information that is published and that is generally accessible or available to the public: (1) through sales at newsstands and bookstores; (2) through subscriptions which are available without restriction to any individual who desires to obtain or purchase the published information; (3) through second class mailing privileges granted by the U.S. Government; (4) at libraries open to the public or from which the public can obtain documents; (5) through patents available at any patent office; (6) through unlimited distribution at a conference, meeting, seminar, trade show or exhibition, generally accessible to the public, in the United States; (7) through public release (i.e., unlimited distribution) in any form (e.g., not necessarily in published form) after approval by the cognizant U.S. government department or agency; and (8) through fundamental research in science and engineering at accredited institutions of higher learning in the U.S. where the resulting information is ordinarily published and shared broadly in the scientific community.
ITAR/USML technical information already in the public domain qualifies for the Public Domain exclusion as long as it meets the requirements stipulated above.
Educational Information Exclusion covers general science, math or engineering commonly taught in courses listed in catalogues and associated teaching laboratories of academic institutions in the U.S. even if the information concerns EAR/CCL controlled commodities or items. ITAR/USML items do not qualify for the Educational Exclusion, as instruction is a “defense service.”
Please reach out to GRS if there is any concern about whether or not any of these exclusions apply to your research.
Yes. International travel by employees or students is still subject to export control regulations. When traveling, be aware that taking information, technology, equipment or laptops out of the country because they may require an export license.
If you are traveling to a sanctioned or embargoed country to conduct university activities, or you are taking any of the following: encrypted software, export controlled items/information, unpublished research data or data not in the public domain – you must ensure you discuss your activities in advance of travel with the KU Export Compliance Officer or another GRS employee. Depending on the type of activity, it may be prohibited, or require licenses be obtained before being allowable.
- The U.S. Department of Commerce’s Bureau of Industry and Security (BIS) administers the Export Administration Regulations (EAR) that govern the export of commercial and dual-use goods, software and technology, including hardware and software containing certain encryption algorithms. BIS also controls certain defense-related items, including certain parts and components for military aircraft and other military end-uses.
- The U.S. Department of State’s Directorate of Defense Trade Controls (DDTC) administers the International Traffic and Arms Regulations (ITAR) that govern the export of defense articles, defense services and ITAR controlled technical data.
- The U.S. Department of the Treasury’s Office of Foreign Assets Control (OFAC)administers country-specific economic and trade sanctions that often include restrictions on most or all transactions with and exports to targeted countries and persons. In addition, both the Treasury and Commerce Departments administer anti-boycott laws, which are designed principally to counter Arab country boycotts of Israel and Israeli goods.
- The U.S. Census Bureau – While not a formal export control agency, the Census Bureau’s Foreign Trade Division is responsible for maintaining and implementing the Foreign Trade Regulations (15 CFR Part 30) that govern the preparation and submission of Electronic Export Information (EEI) submitted prior to most exports from the United States. The Census Bureau shares this export data with BIS, OFAC, DDTC, U.S. Customs and Border Protection and other regulatory and law enforcement agencies.
- The U.S. Customs and Border Protection (CBP) – While primarily responsible for imports into the United States, CBP officers at various U.S. ports oversee a wide variety of export-related activities and have the authority to inspect, detain and seize export shipments if they are not in compliance with the laws and regulations issued by BIS, DDTC and OFAC.
- Other U.S. Government agencies involved in export control-related issues include: Drug Enforcement Agency (DEA), Environmental Protection Agency (EPA), Department of Energy (DOE), Nuclear Regulatory Commission (NRC), Patent and Trademark Office (USPTO), Food and Drug Administration (FDA), and the Maritime Administration (MARAD)