General Overview of Export Control Regulations

It is unlawful under export laws and regulations to send or take export controlled information out of the United States or disclose, orally or visually, or transfer export controlled information to foreign nationals inside our outside the United States.  “Foreign Person” is a person who is not a U.S. citizen or permanent resident alien of the U.S.

Researchers may be personally liable for violations of export control laws and regulations.  Therefore it is important that you use reasonable care in responding to the questions provided below.  In addition you should use care in identifying research assistants and/or collaborators who are foreign nationals.   In the event the information involved is determined to be export controlled the Office of Legal Affairs will file for appropriate licenses permitting the release of such information.  Until the approval is received you should not transfer or disclose such information to a foreign national.  Once approval is received you should take care in controlling access to export controlled information in your possession.

The penalty for unlawful export and disclosure of export controlled information under ITAR is up to two years in prison and/or a fine of $100,000, and under EAR the greater of $1,000,000 or five times the value of the export and imprisonment of up to 10 years.

DEFINITIONS

PUBLISHED INFORMATION AND SOFTWARE
Information is “published” when it becomes generally accessible to the interested public in any form, Ready availability at libraries open to the public or at university libraries, Patents and open (published) patent applications, Release at an open conference, meeting, seminar, trade show, or other open gathering.  Software and information is published when it is available for general distribution either for free or at a price that does not exceed the cost of reproduction and distribution.  Notwithstanding encryption software with symmetric key length exceeding 64-bits will not be considered published for purposes of this definition.

FUNDAMENTAL RESEARCH
Basic and applied research in science and engineering, 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.

(1)  Research conducted by scientists, engineers, or students at a university normally will be considered fundamental research (“UNIVERSITY” MEANS ANY ACCREDITED INSTITUTION OF HIGHER EDUCATION LOCATED IN THE UNITED STATES.)
(2)  Prepublication review by a sponsor of university research solely to insure that the publication would not inadvertently divulge proprietary information that the sponsor has furnished to the researchers does not change the status of the research as fundamental research.  However, release of information from a corporate sponsor to university researchers where the research results are subject to prepublication review will require further export review
(3)  Prepublication review by a sponsor of university research solely to ensure that publication would not compromise patent rights does not change the status of fundamental research, so long as the review causes no more than a temporary delay in publication of the research results

CORPORATE RESEARCH
(1)  Research conducted by scientists or engineers working for a business entity will be considered “fundamental research” at such time and to the extent that the researchers are free to make scientific and technical information resulting from the research publicly available without restriction or delay based on proprietary concerns or specific national security controls.
(2)  Prepublication review by the company solely to ensure that the publication would compromise no proprietary information provided by the company to the researchers is not considered to be a proprietary restriction, however, so long as the review causes no more than a temporary delay in publication of the research results.
(3)  Prepublication review by the company solely to ensure that publication would compromise no patent rights will not be considered a proprietary restriction for this purpose, so long as the review causes no more than a temporary delay in publication of the research results.
(4)  However, the initial transfer of information from a business entity to researchers is not authorized under the “fundamental research” provision where the parties have agreed that the business entity may withhold from publication some or all of the information so provided.

EDUCATIONAL INFORMATION
“Educational information” if it is released by instruction in catalog courses and associated teaching laboratories of academic institutions.  Note that the provisions of this section do not apply to encryption software exceeding 64-bits.

DEFENSE SERVICE
(1) The furnishing of assistance (including training) to foreign persons, whether in the United States or abroad in the design, development, engineering, manufacture, production, assembly, testing, repair, maintenance, modification, operation, demilitarization, destruction, processing or use of defense articles;
(2) The furnishing to foreign persons of any technical data controlled under this subchapter (see Sec. 120.10), whether in the United States or abroad; or
(3) Military training of foreign units and forces, regular and irregular, including formal or informal instruction of foreign persons in the United States or abroad or by correspondence courses, technical, educational, or information publications and media of all kinds, training aid, orientation, training exercise, and military advice.
DEVELOPMENT: Related to all stages prior to serial production such as: design, design research, design analysis, design concepts, assembly and testing of prototypes, pilot production schemes, design data, process of transforming design data into a product, configuration design, integration design, layouts.

PRODUCTION: All production stages such as: product engineering, manufacture, integration assembly (mounting), inspection, testing, quality assurance.

USE: The operation, installation (including on-site installation), maintenance (checking), repair, overhaul and refurbishing.

TECHNICAL DATA: Information which is required for the design, development, production, manufacture, assembly, operation, repair, testing, maintenance or modification of defense articles. This includes information in the form of blueprints, drawings, photographs, plans, instructions and documentation. It also includes software directly related to defense articles. This definition does not include information concerning general scientific, mathematical or engineering principles commonly taught in schools, colleges and universities. This definition also does not include basic marketing information on function or purpose or general system descriptions of defense articles.