Export Control

Export controls are federal laws that regulate the export of sensitive technologies, equipment, software, biological agents and related data and services. Various federal agencies/departments have their rules, however, most university related research falls under these three categories: 

1. The International Traffic in Arms Regulations (ITAR) govern exports of military technologies. The technologies controlled by the ITAR are found on the United States Munitions List. The ITAR also controls information required for the development or operation of military technologies. Technologies controlled by the ITAR are the most sensitive and therefore the most tightly controlled. Every export of an ITAR-controlled item requires permission from the State Department. Certain countries are considered “countries of concern” where chances for obtaining legal permission are low: Afghanistan, Belarus, Burma, Cambodia, Central African Republic, China, Congo, Cuba, Cyprus, Ethiopia, Eritrea, Haiti, Iran, Iraq, Lebanon, Libya, North Korea, Russia, Somalia, South Sudan, Sudan, Syria, Venezuela, Zimbabwe
2. The Export Administration Regulations (EAR) control exports of “dual-use” items and technologies. Dual-use items are items that have primarily civilian or commercial applications, but can be adapted for military use. Dual-use items can be found on the Commerce Control List. EAR-controlled items are less sensitive than ITAR-controlled items, so not all exports require a license. Rather, the Commerce Departments licensing requirements are based on the nature of the item, the destination country, the recipient, and the recipient’s intended use of the item.
3. The Foreign Assets Control Regulations (also known as the Office of Foreign Assets Control or OFAC Regulations) control exports, travel, and financial transactions involving embargoed countries. OFAC administers and enforces economic and trade sanctions against targeted countries on the basis of foreign policy and national security reasons. Many transactions, including research and teaching collaborations, require special permission from OFAC. The terms of these embargoes differ by country. Current comprehensively sanction countries are: Cuba, Iran, North Korea, Russia, Syria, and certain parts of Ukraine. You should exercise caution when considering collaborating with someone in, or “ordinarily resident” in, those countries, as well as a number of other that are currently sanctioned. 
   • Comprehensively sanctions countries: Cuba, Iran, North Korea, Russia, Syria, certain regions of Ukraine
   • Other countries subject to OFAC Sanctions: Balkans, Belarus, Burma, Central African Republic, Congo, Ethiopia, Hong Kong, Iraq, Lebanon, Libya, Somalia, Sudan, Venezuela, Yemen, Zimbabwe

A Restricted Parties List (sometimes referred to as Consolidated Parties List) is a list of individuals, entities, or organizations that the federal government, or allied international organizations, have deemed a risk to export to, for various reasons. It includes individuals, companies, universities, organizations, etc., generally referred to as 'entities.'

It is important to ensure that you do not do any business (hire, invite, purchase from, sell to, ship, provide services, collaborate with, etc.) with entities on the list. You can carry out a pre-screening using a free tool provided by the Department of Commerce – The Consolidated Screening List. If you plan on carrying out any of the activities mentioned in the UM Export Control Policy, then this screening should be requested from the UM Research Security via an RPS online form.

Fundamental research is defined as basic and applied research in science and engineering conducted at an accredited U.S. institution of higher education where the resulting information is ordinarily published and shared broadly within the scientific community.  Such research can be distinguished from proprietary research, the results of which ordinarily are restricted for proprietary reasons or specific national security reasons. A lot of research conducted by scientists, engineers or students at a university normally will be considered fundamental research. Information that qualifies as “fundamental research” is not subject to export control regulations. However, this only applies to research, data, and publications, and NOT to physical equipment or samples.

University research will NOT be considered to be “fundamental research” if:

• The university accepts certain types of research personnel restrictions based on nationality (except certain restrictions in the context of government-sponsored research).
• The university accepts certain types of publication restrictions, such as pre-approval rights over publications.

The implications for these restrictions can be limited participation of students, limited participation of foreign nationals, limits on publication, and information security considerations (both physical and electronic). In such cases, UM Research Security must undertake an analysis to determine if export licenses must be obtained before foreign nationals may participate, or before research output is shared.

 A product does not have to travel across the U.S. border to be considered an export. An export may not involve a product at all. Simply exposing a non-U.S. person to information about export-controlled technology, even in the U.S., may be treated as an export. Such disclosure of information, if made without a proper license, is potentially a violation of federal law that could result in federal penalties.

Export is defined as an actual shipment or transmission of items out of the United States. This includes standard physical movement of items across the border by truck, car, plane, rail, or hand-carry. Technology and software may be exported or reexported both physically or electronically, such as through meetings, engineering manuals, blueprints, plans, diagrams, formulae, email, telephone discussions, fax, posting on the internet, and a variety of other non-physical means.

Deemed Export is a release of “technology” or “software” to anyone who is not a United Sates citizen or permanent resident. The transmission is “deemed” to be export of that information to the person’s country of citizenship. In other words, an export of controlled “technology” or “software” can occur even if nothing ever leaves the research lab; the release can occur through, but is not limited to, a demonstration, oral briefing or provision of documents, for instance. Sending information to another country, for example, if a researcher emails the results of an experiment, related to export controlled information, to a colleague in China, the email is deemed to be an export of the data to China. Note that this is still an export to China even if the colleague is a US national. If the colleague in China is a German national, the email is also deemed to be an export to both China and Germany.

Deemed exports can also occur inside the United States. For example, if a researcher verbally discusses research data with a Nigerian grad student, that discussion is deemed to be an export to Kenya, even if the conversation takes place in the researcher’s lab in Oxford.

The application of export controls is a process that is almost always detail-specific, and with a renewed focus on emerging technologies of interest to national security, beset with frequent revisions and updates. Although universities must ensure compliance with export controls on all types of technology, "development" in the context of emerging technologies presents the most significant challenge when balancing the costs of compliance against the risk of inhibiting the pursuit of science. 

Because deemed exports involve sharing information and restrictions are based on nationality, they can be especially tricky for universities and university researchers. Fortunately, most information can be freely shared with most people from most countries. As with exports of tangible goods, most deemed exports do not require a license. Generally, information that has already been published can be distributed freely. Information that cannot be distributed freely (and that likely requires an export license) includes information that is sensitive for national security reasons and proprietary or confidential data. If you have questions about whether you need a license to share data, please contact the UM Research Security Office.

It is the policy of the UM to comply with all United States export control laws and regulations. This policy applies to all UM employees and all non-employees performing activities on behalf of the UM, including but not limited to: faculty, staff, postdocs, graduate/undergraduate students, visiting scientists/researchers/scholars.  

A number of activities requiring review, such as acceptance/execution of research awards/contracts, MTAs, or agreements are handled institutionally, however, a number of other activities depend on the UM personnel to reach out to the UM Research Security to request a review, including:

• Prior to the shipment of ANY items to a location outside of the United States or to a foreign entity, whether temporarily or permanently;
• Prior to conducting any research involving export-controlled information, technology, technical data or items which are enumerated on either the United States Munitions List or Commerce Control List;
• Prior to the transfer, whether verbal, physical, or digital, of export-controlled information, technology, or technical data to a location outside of the United States, whether temporarily or permanently;
• Prior to the transfer of export-controlled information, technology, or technical data to a foreign entity located within the United States when such transfer would constitute a deemed export requiring approval pursuant to export control laws, regulations, or policies;
• Prior to interaction with a citizen of, or an entity located in, a comprehensively sanctioned country, including travel to, importing or exporting to or from, signing agreements, building partnerships, and engaging in online education with an individual located in a sanctioned country;
• Prior to providing invitations to international: visitors, visiting scholars, visiting collaborators, visiting professors. Prior to providing invitations to international postdocs, or international graduate students that are recruited to work on research at the UM, or utilizing UM facilities to carry out scientific research.

Requests for the required screenings can be submitted via online forms:

• Potential International Collaborator Risk Assessment,
• Shipment Screening,
• Entity Screening against the Restricted Parties List,
• Potential International Visitor Risk Assessment.

The UM MFTRP Participation Prohibition Policy is based on the requirements stated in the Creating Helpful Incentives to Produce Semiconductors (CHIPS) and Science Act of 2022.

Many countries sponsor talent recruitment programs for legitimate purposes of attracting researchers in targeted fields, and many programs utilize legitimate means of attracting talent, including offering research fellowships and grants to incentivize researchers to physically relocate. A Foreign Talent Recruitment Program is any program, position, or activity that includes compensation in the form of cash, in-kind compensation, including research funding, promised future compensation, complimentary foreign travel , things of non de minimis value, honorific titles, career advancement opportunities, or other types of remuneration or consideration directly provided by a foreign country at any level (national, provincial, or local) or their designee, or an entity based in, funded by, or affiliated with a foreign country, whether or not directly sponsored by the foreign country, to an individual, whether directly or indirectly stated in the arrangement, contract, or other documentation at issue.

However, some programs encourage or direct unethical and criminal behaviors, which makes them malign. As defined by Section 10638(4) of the CHIPS & Science Act as:

A Malign Foreign Talent Recruitment Program is:
(A) A Foreign Talent Recruitment Program (as defined above) that a covered individual is invited to, in exchange for the individual—
(i) engaging in the unauthorized transfer of intellectual property, materials, data products, or other nonpublic information owned by a United States entity or developed with a Federal research and development award to the government of a foreign country or an entity based in, funded by, or affiliated with a foreign country regardless of whether that government or entity provided support for the development of the intellectual property, materials, or data products;
(ii) being required to recruit trainees or researchers to enroll in such program, position, or activity;
(iii) establishing a laboratory or company, accepting a faculty position, or undertaking any other employment or appointment in a foreign country or with an entity based in, funded by, or affiliated with a foreign country if such activities are in violation of the standard terms and conditions of a Federal research and development award;
(iv) being unable to terminate the foreign talent recruitment program contract or agreement except in extraordinary circumstances;
(v) through funding or effort related to the foreign talent recruitment program, being limited in the capacity to carry out a research and development award or required to engage in work that would result in substantial overlap or duplication with a Federal research and development award;
(vi) being required to apply for and successfully receive funding from the sponsoring foreign government's funding agencies with the sponsoring foreign organization as the recipient;
(vii) being required to omit acknowledgment of the recipient institution with which the individual is affiliated, or the Federal research agency sponsoring the research and development award, contrary to the institutional policies or standard terms and conditions of the Federal research and development award;
(viii) being required to not disclose to the Federal research agency or employing institution the participation of such individual in such program, position, or activity; or
(ix) having a conflict of interest or conflict of commitment contrary to the standard terms and conditions of the Federal research and development award;

AND

(B) a program that is sponsored by—
(i) a foreign country of concern or an entity based in a foreign country of concern, whether or not directly sponsored by the foreign country of concern; (country of concern defined as the People's Republic of China including Hong Kong and Macau, the Democratic People's Republic of Korea, the Russian Federation, the Islamic Republic of Iran, or any other country determined to be a country of concern by the Secretary of State - https://www.state.gov/countries-of-particular-concern-special-watch-list-countries-entities-of-particular-concern/);
(ii) an academic institution on the list developed under section 1286(c)(8) of the John S. McCain National Defense Authorization Act for Fiscal Year 2019 (10 U.S.C. 4001 note; Public Law 115-232); or
(iii) a foreign talent recruitment program on the list developed under section 1286(c)(9) of the John S. McCain National Defense Authorization Act for Fiscal Year 2019 (10 U.S.C. 4001 note; Public Law 115-232).

Individuals who violate export regulations are subject to civil and criminal sanctions (including fines and/or prison sentences for individuals), and universities and research institutions are subject to administrative sanctions (monetary fines and loss of research funding and export privileges).  The International Emergency Economic Powers Enhancement Act of 2007 has provisions that increase civil penalties for violations of the EAR from $50,000 per violation to the greater of $250,000 or twice the amount of the transaction.  The act also allows for criminal penalties of up to $1 million and 20 years imprisonment.

Suspected violations should be reported to EthicsPoint as soon as possible. The Director of Research Security will work closely with you to ensure that suspected violations are reviewed closely, and, if necessary, reported to the appropriate authority. If a violation occurs, there are potential criminal and civil consequences for both the University and for any individuals involved.