Export Control Policy

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Background

Export control laws are a complex set of federal regulations designed to protect United States (U.S.) national security; prevent the proliferation of weapons of mass destruction; further U.S. foreign policy, including the support of international agreements, human rights, and regional stability; and maintain U.S. economic competitiveness. Export control regulations (ECR) govern how information, technologies, and commodities can be transmitted overseas to anyone, including U.S. citizens, or to foreign nationals in the United States. In addition to controlling exports to countries or individuals who are citizens of, or located in, those countries, the export control regulations ban exports to individuals and companies that have been involved in terrorist or drug trafficking activities as well as those who are barred from conducting exports because of previous violations of the export control laws.

Purpose

The purpose of this policy is to make Davidson College personnel aware of export controls, identify corresponding responsibilities and establish conditions under which the Office of Sponsored Programs must be consulted. 

Policy

It is Davidson College policy to fully comply with all applicable United States export control laws, regulations, and policies. Export control regulations include:

Export control regulations (ECR) Exclusions - A vast majority of scholarly work conducted by Davidson College faculty and students is exempt from export control concerns under the Fundamental Research exemption as defined by ITAR (22 CFR  § 120.34 (a)(8)). Specifically, most of Davidson’s work is excluded under the safe harbor of Fundamental Research Exclusion (FRE) described by the Export Administration Regulations (EAR) (15 CFR § 734.8). The EAR covers the export of dual-use (civilian and military) items and technologies.

Procedure

It is the responsibility of grant-funded faculty to use the ECR Decision Tree (PDF) to determine if their research qualifies as exempt under export control regulations and, if needed, to contact the Office of Sponsored Programs for risk assessment, licensing review and other grants research questions.

The primary area of possible risk when it comes to export control at Davidson College lies with faculty travel involving technical data, technical reports, equipment, or technology, to sanctioned countries. Faculty should not take a college laptop, even with standard software and no specialized data, to certain embargoed countries (e.g. Iran, North Korea, Sudan and Syria). Broader lists of countries may be subject to export control regimes covering certain controlled items, such as technical data not intended for publication or manuals to controlled equipment items.

Activities which may not be exempt and require compliance (export license), include but are not limited to:

  • Foreign travel with Davidson College technology or research data not intended for publication;
    • The Office of Sponsored Programs advises faculty concerned about the security of data stored on their college laptop to borrow a “clean laptop” from T&I for purposes of foreign travel.
  • Acceptance of a research agreement requiring confidentiality or publication restrictions;
  • Procurement of equipment or technical specifications, with potential military or aerospace application;
  • Sending commodities, software, technology and information outside of the United States.

Definitions

Deemed Export: In addition to actual shipment of a commodity out of the country, the export regulations also control the transfer, release or disclosure to foreign persons in the United States of controlled commodities. The “deemed export” regulation states that a transfer of source code or “technology” (EAR term) or “technical data” (ITAR term) to the foreign person is “deemed” to be an export to the home country of the foreign person. This deemed export rule does not apply to persons lawfully admitted for permanent residence in the United States and does not apply to persons who are protected individuals under the Immigration and Naturalization Act (8 U.S.C.1324b(a)(3)).

Dual Use items:  Items that can be used both in military and other strategic uses and in civil applications.

Embargo:  A government-mandated sanction that restricts trade with a foreign county; a government prohibition against the shipment of certain products to a particular country for economic or political reasons.

Employment Exclusion: An ITAR license is not required for universities to share controlled technical information in the U.S. with Foreign Persons who are Regular and Full Time Employees of U.S. Institutions of Higher Education. They are eligible to receive, without a license, controlled data IF

  • the employee’s permanent abode throughout the period of employment is in the U.S.; and
  • the employee is not a national of a country to which exports are prohibited; and
  • the institution informs the employee that the data may not be further disclosed to another foreign person without the prior written approval of the State Department

Export Controls: US laws and regulations that restrict the flow (shipment, transmission or transfer) of certain materials, devices and technical information related to such materials and devices outside the United States or to foreign persons in the United States.  Export controls apply to all activities, including internally and externally funded.  

Foreign Entity:  Business or other entity not incorporated in the U.S., and foreign governments.

Foreign person: is anyone who is not a US person. Foreign persons may include international organizations, foreign governments and any agency or subdivision of foreign governments such as consulates.

Fundamental Research: 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.  (National Security Decision Directive 189).

Fundamental Research Exclusion: No license is required to disclose to foreign persons information that is “published and which is generally accessible or available to the public through fundamental research in science and engineering at universities where the resulting information is ordinarily published and shared broadly in the scientific community.” If the research falls under the Fundamental Research Exclusion, there would be no further concern about the need for an export license. The Fundamental Research Exclusion applies only to the dissemination of research data and information, not to the transmission of material goods.

  • In order to be considered in the public domain, the information or non-encrypted software must have been generated in the course of research performed within the United States.
  • Information and software resulting from fundamental research outside of the U.S. is not treated by export control law as having entered into the public domain, and is subject to export control, unless it qualifies under other public domain criteria.
  • The fundamental research exemption will not apply if the college accepts any restrictions on the publication of resulting information, other than a brief (~90 day) advance review by sponsors to:
    • Prevent divulging propriety information provided to the investigator by the sponsor
    • Ensure that publication will not compromise patent rights of the sponsor

Fundamental Research Exclusion is destroyed by any clause (regardless of sponsorship – federal, state, private, nonprofit, etc.) that:

  • Gives the sponsor the right to approve publications
  • Restricts participation of foreign persons in conduct of research by precluding access to research results
  • Otherwise operates to restrict participation in research and/or access to and disclosure of research results.

“Side deals” between a researcher and a sponsor destroy the Fundamental Research Exclusion.

Sanctioned Country: Countries designated by OFAC as having limited or comprehensive trade sanctions imposed by the United States for reasons of anti‐terrorism, non‐proliferation, narcotics trafficking, or other reasons. See OFAC website.

US person: is a citizen of United States, a lawful permanent resident alien of the US, (a “Green Card” holder), a refugee or someone in the US as a protected political asylee or under amnesty. US persons also include organizations and entities, such as universities and colleges, incorporated in the US. The general rule is that only US persons are eligible to receive controlled items, software or information without first obtaining an export license from the appropriate agency unless a license exception or exclusion is available.

Administration of Policy

The Assistant Dean for Research Development / Director of Sponsored Programs shall oversee this policy and review it at least once every three years. Changes to this policy shall be made in accordance with the college’s Policy on Policies.

Date of Adoption: September 25, 2015
Last Updated: April 26, 2023
Last Reviewed: June 27, 2024