Exchange of Items and Technology
- The tangible products of fundamental research in the US are subject to export control and may need a license to be shipped to collaborators in other countries.
- Items and technology originating outside the US become subject to US export controls when in the US. This means that results of research outside the US, even if conducted by non-US persons, could become ITAR-controlled or EAR-controlled in the US, potentially restricting the US research that intended to use them and potentially requiring authorization to export from the US, even to the researchers that originated them.
- Technology within the scope of the EAR and developed through qualifying fundamental research in the US is excluded from the EAR, and can be transferred to collaborators in other countries.
- It’s good practice to identify the technology (label, filename) as the product of fundamental research at MIT, particularly if it appears to be something that a layperson might consider to be export controlled.
- Technical data within the scope of the ITAR and developed through qualifying fundamental research at institutions of higher learning in the US is generally accepted to be excluded from the ITAR when it’s put in the public domain through publication or other mechanism for public availability.
- Because of the way the ITAR definition of “fundamental research” is positioned in the definition of “public domain” [§120.11], some believe that information developed through fundamental research is not excluded from the ITAR until it’s made publicly available.
- The lowest-risk practice is to make information created through fundamental research in the US publicly available before exporting it, through a mechanism such as a website, and document its publication.
- The ITAR considers it to be a defense service requiring a license to assist non-US persons. The ITAR (§120.9(a)) defines providing assistance to a non-US person as “in the design, development, engineering, manufacture, production, assembly, testing, repair, maintenance, modification, operation, demilitarization, destruction, processing or use of defense articles”, and the State Department interprets this to include providing public domain information.
- The public domain information interpretation is the subject of current discussion as part of the export control reforms.
Fundamental Research Outside the US
- Research in the scope of the ITAR is not fundamental when it takes place outside “accredited institutions of higher learning in the U.S.” This means, for instance, that research conducted by an MIT research team outside the US would not be considered fundamental research if the technology is within the scope of the ITAR, so the results produced by US researchers outside the US would be subject to the ITAR.
- Research in the scope of the EAR is not presumed to be fundamental as it would be if university-based research, but still qualifies as fundamental at the point where there are no restrictions on publication and participation.
While US sanctions programs and restrictions on transactions with specific parties always apply, the likelihood of being affected by them increases when you’re outside the US.
Crimea, Cuba, Iran, North Korea, (North Sudan) and Syria are subject to strict controls on the EAR’s Commerce Control List, and are also subject to OFAC sanctions programs. If you will be working with nationals of these countries, you should be familiar with both.
Working with China entities and nationals can be complicated by US policy toward China, which includes both enthusiastic support for commercial transactions and strong aversion to support of the Chinese military. Some apparently benign China institutions are considered by the US government to be closely related to the military, resulting in restrictions on transactions with them.
OFAC’s Specially Designated Nationals and Blocked Persons List and the Commerce Department’s Entity List are the most relevant, but the government maintains a total of 35 lists with various restrictions. You can check most of these using the National Export Initiative’s consolidated list, or consult MIT’s Export Control Officer.
|ITAR Scope||EAR Scope|
|Research at MIT||Fundamental research, excluded from export controls, be careful of restricted items and technologies. Publish before exporting.||Fundamental research, excluded from export controls, be careful of restricted items and technologies.|
|Research abroad||When conducted by a US citizen or permanent resident, subject to the ITAR (not fundamental).||When conducted by a US citizen or permanent resident, excluded from EAR controls (fundamental) when there are no restrictions on publication and no restrictions on participation.|
|Tangible items originating at MIT||Subject to US export controls when being shipped outside the US.||Products of fundamental research are excluded from export control|
|Items or technology originating outside the US||Subject to US export controls when in the US, including deemed export through use or inspection.||Subject to US export controls when in the US, can create deemed export through use or inspection.|