Policy and Compliance
MIT Policy
It is MIT policy to comply fully and completely with all U.S. export control laws and regulations, including those implemented by the Department of Commerce through its Export Administration Regulations (EAR) and the Department of State through its International Traffic in Arms Regulations (ITAR), as well as those imposed by the U.S. Department of the Treasury through its Office of Foreign Assets Control (OFAC).
Background
The research, innovation, and development of critical technologies are central to the technological superiority of the United States and to the protection of significant economic interests of the country. Typically, academic research is conducted openly and most research activities are not subject to export control regulations. Under certain conditions, however, the export of that technology, which includes certain technical and scientific data, either is prohibited or requires a license. Certain technologies, called “controlled” technologies, require an export license unless they meet the test that the research is in the public domain. Perhaps the most significant demonstration of that test is that, according to NSDD-189, research results are freely publishable, and access and dissemination of the research results (“fundamental research”) is not restricted. Either of these actions—publication restrictions (other than a limited review for patent protection or for the removal of a sponsor’s proprietary information) or limitations on the access or dissemination of research results (such as to foreign nationals who are not permanent residents of the United States)—removes the information from the public domain and thus would invalidate the fundamental research exclusion. In addition, “educational information” is not subject to the EAR if it is released by instruction in catalog courses and associated teaching laboratories of academic institutions.
Key Definitions
Export: Any oral, written, electronic, or visual disclosure, shipment, transfer, or transmission outside the United States to anyone, including a U.S. citizen, of any commodity, technology (information, technical data, or assistance), or software/codes.
Deemed Export: An export of controlled technology and software to a foreign national (other than a U.S. citizen or permanent resident) inside the United States.
Technology: Specific information necessary for the “development,” “production,” or “use” of a product. The information takes the form of “technical data” or “technical assistance.”
Types of Activities That May Be Export Controlled
Although export control regulations cover a wide range of activities, the following are most pertinent to academic research:
(a) Research carried out at institutions of higher education in the United States in areas involving controlled technologies—but where there are no publication, foreign national, or access and dissemination restrictions—in most instances will satisfy the requirements for fundamental research; no license is required.
(b) Shipment of controlled hardware and software outside the United States may require a license under the appropriate regulations (i.e., EAR, ITAR, or OFAC). MIT will apply for such licenses; appropriate time must be allowed to obtain a license prior to shipment.
(c) Technical assistance agreements under which U.S. citizens or permanent residents are providing training of foreign nationals where a controlled technology is involved requires a license; MIT will apply for such licenses.
(d) Research carrying restrictions on publications/foreign nationals or where export-controlled data is provided to and used by researchers in a laboratory and that would require a license for foreign nationals to participate (i.e., “deemed exports”) is generally in conflict with MIT’s Policy on Openness in Research (see Section 14.2, “Open Research and Free Interchange of Information,” of MIT’s Policies and Procedures). In this case, applying for a license would require the segregation of certain campus areas and restrictions on audiences for presentations that go against MIT’s policy most recently revisited by the Widnall Committee (“In the Public Interest,” 2002).
Acceptance of Third-Party Controlled Equipment or Technologies
In some instances, the conduct of fundamental research—where the products and results may be openly conducted and shared freely with foreign nationals in the United States without the requirement for a deemed export license—may require third-party equipment or technology that may be subject to export control restrictions. While equipment may be controlled for only export outside the United States, the technology and software may create the requirement for a deemed export license. The principal investigator is responsible for recognizing whether the technology or equipment involved in the research program may be subject to export controls. OSP staff will provide assistance to researchers to reach such determinations and, when necessary, will seek support from outside counsel. Occasionally, export-controlled technology is identified by a federal or industrial contracting officer, and sometimes the restrictions are clearly identified in a BAA or an RFP.
In such instances, the principal investigator must assess whether such restricted technology or software is substantially remote from those portions of the research that ultimately will be critical to publication of the research results. For example, access to controlled proprietary software that is only necessary to increase the speed of processing research data may be needed by only one member of a research team, such as the systems programmer. Provided there are no ultimate restrictions on the ability to publish the intellectually significant elements of the research results, it may be possible to reconcile such limitations with MIT’s policy on Openness in Research. The principal investigator is responsible for providing the Office of Sponsored Programs with the rationale for why an exception to MIT’s policies should be made for the research project, as well as the procedures to be followed to ensure compliance with the export regulations and MIT’s policy on Openness in Research. These must be accepted by the Director, who may seek additional review by the Vice President for Research, prior to OSP signing off on the MIT Proposal Summary Form or through the Proposal Certification process via COEUS.
Seeking a License
The Director of the Office of Sponsored Programs is MIT’s “Empowered Official” for export control issues. In coordination with OSP, the Empowered Official arranges for appropriate support to address export control and license issues, and is authorized to sign license applications on behalf of MIT to State, Commerce, and Treasury, which normally takes from two to six months to procure.
No “Side Deals”
The mission of a research institution—and the very essence of science—requires constant communication, much of it informal. That being said, these communications may easily transgress into informal agreements made between researchers and sponsors with respect to decisions at the discretion of the researcher (e.g., not to submit research articles for publication until they have been approved by the sponsor). Such an informal agreement, however, can invalidate the fundamental research exclusion, thereby potentially exposing the researcher, as well as the Institute, to the onerous penalties that may follow from a violation of export control laws. Every researcher must clearly understand that compliance with the export control laws is not discretionary, and to ignore them as not being applicable to one’s own behavior is to invite serious consequences. These may include both civil and criminal penalties and/or large fines assessed to both the Institute and the individual researchers, as well as the possibility of suspension of certain research programs.
