University of Arkansas, Fayetteville Policy 206.7 Export Control Compliance reflects the University's commitment to comply with U.S. export control laws and regulations. Prior to collaborating with, visiting, or sharing equipment, technical data and information, etc. with foreign persons in the United States or abroad, personnel must determine whether government authorization is needed for those activities. Consult with RSCP for any needed guidance and support. All formal export related communications with regulators such as commodity jurisdiction requests, classification requests, license applications, etc. must be submitted by RSCP on behalf of the university. Authorizations must be obtained prior to personnel proceeding with restricted activities.
While export control regulations provide exclusions for "educational information" released in catalog courses and associated teaching labs and “fundamental research" ordinarily published and shared broadly in the scientific community without publication or participation restrictions, both externally and internally funded research may be subject to export control regulations. Investigators should not assume that unsponsored research is exempt from export control regulations.
The following flags should trigger follow-up with RSCP for additional guidance.
- Contractual inclusion of publication restrictions, participation restrictions or language referencing exports controls, the EAR, the ITAR, or military/defense articles
- Access restrictions based on nationality such as U.S. Citizen only or U.S. Persons only
- Receipt of proprietary/confidential technical information or data from another party (may be accompanied by a non-disclosure agreement)
- International collaborations, sponsors, field work or consulting
- International travel with or international shipment of equipment, prototypes, samples, specimens, software or proprietary/confidential information
- International financial transactions
- Hosting foreign national visitors & delegations
- Any activity involving an embargoed country such as Cuba, Iran, North Korea, Sudan (North), Syria or the Crimean region of Ukraine
United States Export Controls are a complex framework of regulations that restrict items that could contribute to military capabilities of rivals, prevent proliferation of weapons of mass destruction (nuclear, biological, chemical), ensure compliance with trade agreements and economic sanctions, prevent terrorism and maintain economic competitiveness. Failure to comply with export regulations is punishable by civil penalties, criminal penalties and incarceration.
The three main regulators include:
- U.S. Department of State’s Directorate of Defense Trade Controls (DDTC), which controls defense articles and services via the International Traffic in Arms Regulations (ITAR)
- U.S. Department of Commerce’s Bureau of Industry & Security (BIS), which controls specified commercial and “dual use” items with commercial and military/security applications via the Export Administration Regulations (EAR)
- U.S. Department of Treasury’s Office of Foreign Assets Controls (OFAC), which administers trade embargoes and economic sanctions
Other U.S. government agencies may have additional oversight over movement of specific items such as: Department of Agriculture’s Animal and Plant Health Inspection Service (APHIS), Environmental Protection Agency in relation to Toxic Substances Control Act (TSCA) and the Nuclear Regulatory Commission for nuclear equipment and materials.
Anti-Boycott laws and the Foreign Corrupt Practices Act (FCPA) also apply to international activities.
- Anti-Boycott laws prohibit U.S. persons from participating in boycotts that are inconsistent with U.S. foreign policy. This includes but is not limited to the Arab League boycott of Israel. Since receiving a request to agree to participate in an unauthorized boycott must be reported to the U.S. government, university personnel must contact RSCP immediately if such language is encountered
- The Foreign Corrupt Practices Act establishes anti-bribery provisions that prohibit corrupt payments to foreign officials for obtaining/retaining business or securing improper advantage
Export restrictions depend on the export classification of the item and export destination. Defense articles and services under ITAR jurisdiction are enumerated on the United States Munitions List (USML) and are highly restricted. Commercial and “Dual Use” items under EAR jurisdiction are enumerated on the Commerce Control List (CCL) and have varying restrictions. The best way to obtain an export classification is from the manufacturer/producer/developer of the item. The Bureau of Industry & Security provides a list of Publicly Available Classification Information. Self-classification can be performed for items produced on campus by personnel with knowledge of an item’s properties who are also familiar with the export control lists. Formal export classification requests can be submitted to government agencies; those requests must be submitted by RSCP on behalf of the university.
A Technology Control Plan (TCP) is required for research involving controlled items. TCP’s include personnel training, screening, security and access stipulations. TCPs must be submitted and approved prior to undertaking controlled activities. Engage RSCP for guidance when a TCP is required.
While some international collaborations are formalized by agreements such as Memos of Understanding, Non-Disclosure Agreements, Contracts, Material Transfer Agreements, Etc. others evolve less formally. Any international collaborations, whether formalized or not, require diligence with regard to export compliance.
- Restricted Party Screening should be performed to verify foreign parties (individuals, organizations, institutions, etc.) are not blocked or sanctioned entities.
- Any proposed activities involving embargoed countries such as Cuba, Iran, North Korea, Sudan (North), Syria or the Crimean region of Ukraine require prior export compliance review.
- Export controlled items cannot be shared without authorization.
The following reference materials highlight risks associated with foreign collaborations.
- FBI - Higher Education and Export Controls Risks and Issues
- FBI - Elicitation Techniques that You May Encounter
- FBI - How to Mitigate the Risks of Visitors
- FBI - Intellectual Property Protection
Hosting international visitors as well as delegations must also be approved by the University. Information about the requesting process and more can be found at the Visiting Scholars and Delegations Webpage.
International travel for university related activities requires travel registration with the Office of Study Abroad and International Exchange. Additionally, travelers must adhere to Export Control Guidance for International Travel.
The following reference materials highlight security concerns related to international travel.
International shipments must be evaluated to determine whether an export license is required prior to shipment. Factors in this determination include the export classification of items being shipped, destination country, end-user and end-use of items begin shipped. Contact RSCP for assistance in license determinations. Export licenses can take approximately 30-90 days, so plan ahead.
I-129 Deemed Export Control Certifications: My department has hired a new faculty member who requires a H-1B visa. As part of
the visa request process, I’ve been forwarded a I-129 Certification Form to complete.
Since he won’t be doing classified research, is it safe to indicate a license is not
required and sign?
Remember that export controls apply to much more than just classified research. Unless you are deeply familiar with the export regulations, you should engage RSCP for guidance on how to complete this I-129 Certification Form prior to signing and escalating. Note that I-129 Certifications are required by U.S. Citizenship and Immigration Services (USCIS) for all foreign national workers applying for a visa under categories H-1B, H1-B1, L-1 and O-1A.
Fundamental Research: A researcher in my department has been awarded a NSF grant. I’ve reviewed the terms
and conditions and there are no participation or publication restrictions. Does this
mean the research qualifies as Fundamental Research and her foreign national graduate
student can work on the project?
Yes, the absence of participation and publication restrictions does qualify the research results for the Fundamental Research Exclusion (FRE). Foreign nationals can participate. Note that the FRE applies to research results. Any related international shipments, travel or visitors would still need reviewing. Any proprietary inputs to the research project would also need review prior to providing access.
Proprietary Research: A professor in my department is working on a project with an industry sponsor. A
NDA (Non-Disclosure Agreement) with publication restrictions was reviewed and approved
by Office of Legal Counsel before proceeding. Can I assume that since the agreement
is signed, any and all activities needed to support the work have also been approved?
Do not make such assumptions. The agreement likely established scope of the project and confidentiality terms, but should not be considered a blanket export authorization. Since the Fundamental Research Exclusion is not applicable due to publication restrictions, contact RSCP to classify items and gain a better understanding of relevant export restrictions before engaging in any export related activities.
Foreign Visitors: My department has invited a professor from a foreign country to visit. Since the
U.S. government approves the visa, the visitor has been properly vetted. Are there
export restrictions to consider even though the visa is approved?
Yes, more diligence is needed. While the government may have screened the visa request, this is not a blanket export authorization. RCSP can complete Restricted Party Screening for the visitor and also provide guidelines on what can be shared and what should not be shared with the visitor.
Foreign Travel: A professor in my department is collaborating on a Fundamental Research project with
a colleague in China. She’s planning a trip to China, and will carry along some integrated
circuits from the project for her colleague to evaluate. Since the project qualifies
as Fundamental Research, there are no export restrictions, are there?
Even if the results of the research qualifies under the Fundamental Research Exclusion, it does not authorize the export tangible goods (such as integrated circuits). Those items would require an export classification by RSCP to determine any related restrictions. Since there are some Chinese universities on the Entity List, RSCP should also complete Restricted Party Screening.
Academic/Exchange Agreements: A professor in my department wants to start a collaboration project with a colleague
at an institution in a foreign country (where they both studied as undergraduates).
Since UAF has a Memo of Understanding (MOU) in place with this institution, I don’t
need to be concerned with regulatory restrictions, do I? Wasn’t this approved when
the MOU was established?
A MOU, like other agreements, should never be interpreted as a blanket export authorization. RSCP should be engaged prior to any export related activities.
APHIS Permits: A professor is working with a plant pathogen that was imported under an APHIS (Animal
and Plant Health Inspection Service) permit. Doesn’t this allow for exportation of
the pathogen to other collaborators in foreign countries?
No, an import authorization by APHIS does not serve as an export authorization. The Commerce Control List (CCL) includes plant pathogens and the item would need to be classified and reviewed for export restrictions prior to shipment. An export license may be required depending on the item being exported and the destinations.
Collaboration with Cuba or Iran: Recently I’ve seen a lot of news about improving relations with both Cuba and Iran.
I’m not sure what this means for some collaborations our department is considering.
Should we check with RSCP prior to pursuing engagements in those countries?
You’re right to exercise caution. Export considerations are still necessary. Despite what you may hear in the news, both countries are still embargoed by the U.S. government. While more activities are allowed, any potential collaborations and exports should be reviewed.
Rushed Activity: I’m up against a deadline and need to meet deliverables. My motto is it’s better
to ask for forgiveness than permission. It’s just paperwork anyway – what’s the big
deal? These export regulations seem complicated and I don’t have time?
It is not excusable to knowingly violate export regulations. Enforcement actions are much more severe when the exporter acts with malicious intent. It is not acceptable to export first and ask permission later.