Key Issues in University Activities

Export regulations require universities to consider various activities that require compliance oversight. Considerations and subsequent actions depend on key management support, types of activities the university engages in, evaluation of the recipient/destination, involvement of controlled technology, and governmental jurisdiction, in order to determine how the regulations apply, and whether a license must be obtained. There are multiple levels of oversight necessary for an effective export control compliance program. Most activities conducted at UMass Amherst are likely to qualify for license exclusions for information that is Publicly Available or in the Public Domain, such as the Educational Information Exclusion and the Fundamental Research Exclusion. Otherwise, an export license may be required to allow for participation by non-U.S. persons or for foreign research collaborations.

Fundamental Research Exclusion (FRE)

The term “fundamental research” means basic or applied research in science and engineering, the results of which are ordinarily published and shared broadly within the scientific community. Fundamental research is 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. Both the ITAR and EAR provide that information resulting from fundamental research is not subject to export controls. This is referred to as the Fundamental Research Exclusion (FRE).

Specifically, the EAR provides that the fundamental research exclusion applies as long as the university and its researchers do not accept restrictions on publication of scientific and technical information resulting from the project or activity, or personnel access restrictions. The EAR specifically permits customary prepublication reviews by research sponsors to prevent inadvertent divulging of proprietary information provided to the researcher by the sponsor or to ensure that publication will not compromise any patent rights. The EAR citation is 15 CFR § 734.8.

By comparison, the ITAR states that university research will not be deemed to qualify as fundamental research if: (1) the university or its researchers accept any restrictions on publication of scientific and technical information resulting from the project or activity; or (2) the research is federally funded and specific access and dissemination controls protecting information resulting from the research have been accepted by the university or the researcher. The ITAR citation is 22 CFR § 120.34(a)(8).

The Office of Post-Award Management (OPAM) carefully reviews proposed research projects to ensure the scope of the work qualifies for the fundamental research exclusion. Furthermore, OPAM reviews contractual and grant language to ensure the University is not agreeing to terms that negate the fundamental research exclusion. If further reviews are needed, ORC works to complete the export control analysis, with the technical assistance of the PI.

FRE Limitations:

Verbal or written “side deals” between a PI and sponsor to forego publication will invalidate the FRE and violate university policies that require that research shall be conducted openly and without prohibitions on the publication and dissemination of the results.

Under the EAR and ITAR, even if no publication restrictions or personnel restrictions apply, the fundamental research exclusion does not apply to the physical shipment of goods.

Sponsor or third-party trade secrets or other proprietary information used in a research project which are subject to a confidentiality obligation will continue to be subject to export controls, even though the research and the research results are covered by FRE.

A deemed export may occur if information, which is not otherwise publicly available, about the development, production or use of controlled articles is released to a foreign national. (“Use” in this context can have different meanings, dependent upon the classification of the item or technology involved. When instruction on use is based on a publicly available manual, the instruction is considered publicly available and not subject to the EAR.)

Educational Information Exclusion

One of the most important exclusions from the EAR and ITAR that applies to universities is the exclusion for educational information. Under the EAR, information and software taught in course catalog courses and teaching laboratories associated with these course catalog courses are not export controlled. (Certain encryption does not meet this exclusion.) See 15 CFR 734.3(b)(3).

Under the ITAR, information or software concerning general scientific, mathematical or engineering principles commonly taught in universities or information in the public domain are not subject to export controls. See 22 CFR 120.33(b) and 120.34.

Published / Publicly Available Information / Public Domain

All information that is publicly known is also not subject to export controls (again with the exception of certain encryption software). Under the ITAR, information that is published and that is generally accessible or available to the public is said to be in the “public domain” and not export controlled. Examples include: (a) sales at newsstands and bookstores; (b) subscriptions that are available without restriction to any individual who desires to obtain or purchase the published information; (c) second class mailing privileges granted by the U.S. government; (d) libraries open to the public or from which the public can obtain documents; (e) published patent applications and issued patents; (f) unlimited distribution at a conference, meeting, seminar, trade show, or exhibition, generally accessible to the public, in the United States; (g) any public release after approval by the cognizant U.S. government agency; and (h) fundamental research in science and engineering at accredited institutions of higher learning in the U.S. where the resulting information is ordinarily published and shared broadly in the scientific community. See 22 CFR 120.34.

The EAR uses the term “publicly available” rather than “public domain.” Under the EAR, information is publicly available when it is published and thus, becomes generally accessible to the public. See 15 CFR 734.7.

Physical Exports

If a physical export is necessary, a sequential analysis should begin with jurisdiction determination and then the classification process. The researcher is typically the best person to assist with the determination of the classification of the item, such as the USML Category or the CCL ECCN.

If an item is determined to be ITAR-controlled, an export license is likely needed to any destination. If an item is determined to be EAR controlled, it must be determined whether an export license is required, depending upon the destination, end use, and end user. The exporter is required to know the customer and evaluate how the export will be used. The vetting process must include a restricted-party screen to assess for the potential inclusion of the recipient on lists of prohibited/restricted countries, persons, and. For shipment of items subject to the EAR, you must check whether General Prohibitions 4- 10 apply (15 CFR 736). If any “red flags” are present, the concerns must be addressed satisfactorily or the shipment should be aborted. In some instances, license exceptions may apply. Contact ORC to evaluate whether any license exceptions may apply. All exports from UMass Amherst require the review and approval of ORC prior to shipment. ORC review and approval is built into the eShip Global system as well as Mail Services processes. Certain exports may also require submitting an End User Certification Form to ORC, as well as engaging a freight forwarder to facilitate the shipment and file required documentation. For all physical exports reviewed by ORC, end users must be identified and screened to evaluate whether a license is required or any exceptions may apply.

For exports that require a license, have a value greater than $2,500, are destined to an entity on the Unverified List, or consist of items enumerated on the CCL and destined to China, Russia, or Venezuela, an AES filing with the U.S. Census Bureau may be required. Contact the ORC for assistance with this process and allow adequate time (several days to a week, if possible) for the filing to be made.

Deemed Exports

While exports are commonly associated with the physical shipment of materials across a U.S. border, export controls are much broader. They also include the transfer of technology, software, technical data, or the performance of defense services to foreign nationals, even when the transfer takes place within the U.S. This transfer is "deemed" to be an export. The issue of deemed exports is particularly relevant for university environments where students and faculty from every corner of the globe engage in teaching and research activities together. In many instances, the requirements of the export control laws can be appropriately satisfied through reliance on available exclusions from export controls, such as exclusions for educational information, public domain information, and the fundamental research exclusion. UMass Amherst is committed to ensuring these exclusions are relied upon and satisfied whenever possible.

A deemed export under the EAR involves the export to a foreign national of technology or software required for the development, production, or use of a good. Deemed exports can occur through such means as a demonstration, oral briefing, or lab visit, as well as the electronic transmission of non-public information or software. Specific reference must be made to the relevant ECCN, because what constitutes “technology” can vary. For example, in the case of select agents, “technology” includes information about disposal of the materials under ECCN 1E351. Technology and software that are not subject to the EAR would be excluded from these export regulations, such as publicly available technology. While the ITAR doesn’t use the term “deemed export” itself, disclosing controlled technical data to a foreign person, even in the U.S., is considered to be an export, as is performing a defense service on behalf of or for the benefit of a foreign person (22 CFR 120.32 and 120.56).

Supercomputers

A common deemed export question relates to access by persons in the UMass Amherst community to supercomputers (designated by their adjusted peak performance or APP under Category 4 of the CCL). This is an example where mere access to or operation of a supercomputer does not constitute a deemed export. Faculty and technicians involved in the procurement, development, or operation of such supercomputers are responsible for their proper management and supervision and are responsible for being aware of applicable restrictions.

Encryption Software and Technology

Faculty and students who work with encryption software and technology have a particularly complex compliance framework to maneuver within. As referenced above, certain encryption software does not satisfy the exclusions on which universities ordinarily rely, including the educational information exclusion or the publicly available or public domain exclusion. However, there are recognized Department of Commerce clarifications and specific license exceptions that do apply.

As part of the federal government policy efforts to promote data security through encryption protections imbedded in mass market software products, it is permissible, while in the U.S., for non-U.S. persons to use any publicly available (in other words, sold on the retail market) software containing encryption source code or object code. The Department of Commerce makes this clear in its policy statements. See, for example, the Department of Commerce's BIS encryption export policy and the encryption deemed export FAQ.

Special exemptions apply to teaching encryption techniques. Encryption technology that is publicly available (in other words, published in books or sold on the retail market), including technology covered by ECCNs 5E002 and 5E992, is not subject to the EAR. Therefore, publicly known encryption techniques and schemes may be shared and taught to non-U.S. persons within the U.S. (sharing of encryption software is a separate analysis). However, providing encryption technology controlled under 5E002 to students may require a license if it is provided with the specific intent to aid in the development of commodities or software controlled under 5A002 or 5D002. See License Requirement Note to ECCN 5E002.

Restricted Party Screening Lists

Various U.S. government agencies maintain lists of individuals or entities barred or otherwise restricted from entering into certain types of export, trade, and financial transactions with U.S. persons. All activities must be screened using these lists to ensure that UMass Amherst does not engage in a transaction with a barred entity or person. ORC personnel and other campus users, as appropriate, use a software from a third-party vendor to conduct restricted-party screens. This software is available at no additional charge; please contact ORC for further information.

• BIS Denied Persons List: A list of persons who have been issued a denial order from the Commerce Department’s Bureau of Industry and Security (BIS). U.S. exporters and third parties in general are prohibited from dealing with these persons in transactions involving U.S. items.
• BIS Entity List: The Entity List identifies foreign parties that are prohibited from receiving some or all items subject to the EAR unless the exporter secures a license. These are often entities identified as being involved in proliferation of missile technology, weapons of mass destruction, terrorism, or other activities contrary to U.S. national security or foreign policy interests.
• OFAC Specially Designated Nationals and Blocked Persons List (SDN List): Maintained by OFAC, this is a list of barred terrorists, drug traffickers, and persons and entities associated with embargoed regimes. Generally, all transactions with such persons are barred.
• Arms Export Control Act (AECA) List of Debarred Parties: Issued and maintained by the Department of State, this is a list of individuals who are denied export or re-export privileges of items subject to the USML.
• BIS Unverified List: These are foreign persons and entities for which the Department of Commerce has been unable to verify the nature of their operations. While transactions with these entities are not barred, special due diligence is required, as there are additional licensing, documentation, and reporting requirements.
• BIS Military End User List: Identifies entities and foreign parties that are prohibited from receiving items described in Supplement No. 2 of Part 744 of the EAR unless the exporter secures a license. These parties have been determined by the U.S. Government to be “military end users”.
• Nonproliferation Sanctions: Are maintained by the Department of State.
• OFAC Sanctions Evaders List: Foreign individuals and entities determined to have violated, attempted to violate, conspired to violate, or caused a violation of U.S. sanctions on Syria or Iran, as well as foreign persons who have facilitated deceptive transactions for or on behalf of persons subject to U.S. Sanctions. Transactions by U.S. persons or within the United States involving Foreign Sanctions Evaders (FSEs) are prohibited.
• OFAC Sectoral Sanctions Identifications (SSI) List: Individuals operating in sectors of the Russian economy with whom U.S. persons are prohibited from transacting in, providing financing for, or dealing in debt with a certain maturity.
• Non-SDN Palestinian Legislative Council (PLC) List: Individuals of the PLC who were elected on the party slate of Hamas, or any other Foreign Terrorist Organization (FTO), Specially Designed Terrorist (SDT), or Specially Designated Global Terrorist (SDGT).

Supplier Classification of Items

When, in the course of research activities, UMass Amherst receives materials from a sponsor and the PI cannot determine whether export controls apply, the ORC may contact the sponsor for export jurisdiction and classification information. Export classification information may be available on vendor websites; it may also be obtained by contacting sales representatives.

Antiboycott Violations

U.S. persons are prohibited by the antiboycott laws of the United States from participating in unsanctioned foreign boycotts. While infrequent, this problem can arise in the process of contracting with foreign entities or countries. Examples include agreements to discriminate based on national origin or nationality and agreements to refuse to do business with Israel or Israeli blacklisted companies. Please contact ORC regarding any concern regarding restrictive or discriminatory contract or agreement language.

Immigration Sponsorship

ORC must screen and approve all requests for UMass-sponsored temporary (J) and employment (H1-B, O) visas before OGA can proceed with issuing visa-related documentation to the applicant. The letter of invitation should include a full description of the activities to be performed by the person while at UMass Amherst.

International Travel

When traveling abroad, UMass Amherst faculty, staff, and students should be familiar with export control regulations. UMass Amherst personnel need to make sure that any information discussed, or items taken out of the U.S., are either not controlled, or, if controlled, the proper licenses are in place or the use of license exceptions is appropriate and documented. UMass Amherst personnel, as individuals, and UMass Amherst as an institution, can be held liable for improperly transferring controlled technology or exporting controlled items. Thus, it is important to review and understand the federal requirements. Prior to discussing technology or making a presentation when traveling, verify that the technology, information, and/or commodity qualifies for an exclusion or exception. Please note: the fundamental research exclusion does not apply when controlled equipment, material, or biological samples are hand-carried or shipped abroad. Further, items such as biological samples should never be transferred without prior authorization from ORC.

Be aware that more than one license may be required for some travel. For example, travel to an OFAC embargoed country could require a license issued by the Treasury Department, and a BIS license may also be required if an export of controlled technology (information) is anticipated.

Typical exclusions that are relevant for personnel when traveling include:

• Published Information and Software – information that is generally accessible to the public through publication in books or periodicals, or information presented in the United States at a conference, meeting, seminar, trade show or other open gathering (where members of the general public are eligible to attend and attendees are permitted to take notes) is considered to be in the public domain. Software available from a web site and accessible to the public for free and without restriction is also considered to be publicly available. (Again, certain encryption software does not meet this exclusion.)
• Educational Information – Course material taught in U.S. universities in catalog courses and information that is in the public domain fall within the educational information exception. (Again, certain encryption software does not meet this exclusion.)

All travel for UMass Amherst-related business or activities must be conducted in accordance with the Board of Trustees’ University of Massachusetts Travel Policy. This includes the submission and approval of the travel authorization, via Concur, prior to travel. Travel authorizations must be approved by the traveler’s supervisor and ORC, as well as OGA and IT depending on the risk levels of the destination. Travel authorization requests should be submitted at least ten business days before travel begins to allow sufficient time for reviews and approval. Travelers who submit authorization requests less than ten days before departure risk losing their eligibility for reimbursement. The UMass President’s Office maintains resources about international travel policies and procedures that are applicable system-wide, and OGA maintains resources and guidance that are specific to the UMass Amherst campus.

Special care should be taken in the case of travel with specialized research equipment or computers that contain non-commercial, special purpose, or certain encryption software. These items could be subject to seizure or customs duties. If you need to travel with such items, an export review should be performed, and, if necessary, a license obtained prior to travel. Such a review should be completed well ahead of expected travel dates. Before initiating travel, the following questions should be considered to evaluate whether export regulations apply:

1. Do you plan to take any information or technology that is controlled?
2. Do you plan to travel to an embargoed destination?
3. Are you taking any equipment or other materials, including material samples, with you?

If the answer to any of these questions is “yes”, contact the ORC for assistance.

Gift Acceptance Policy

The University of Massachusetts Amherst accepts contributions of cash and property from donors globally. Regardless of the donor’s country of residence, acceptance of a gift of any kind must comply with all U.S. laws and regulations, the laws of the country of origin, the policies and procedures established by the Trustees of the University of Massachusetts, and the UMass Amherst Foundation. (These policies and procedures are outlined in the UMass Amherst Gift Acceptance Policy.) In addition, Presidential Standards detail export control procedures and screening requirements for gifts and donations. ORC must review donations of equipment, technology, or materials that may be export controlled.

Technology Control Plans

The purpose of a Technology Control Plan (TCP) is to outline procedures used by UMass Amherst for the protection of information and material identified under applicable federal directives governing the export of critical technology that may be received or developed in the performance of activities that are subject to export controls. Technology Control Plans must be developed and submitted for review and approval for any research that involves export-controlled technology or data. The purpose is to identify authorized personnel and develop a physical and IT security plan to protect and control research information from access by unauthorized persons. Once the TCP is in effect, no personnel can be added to that project or facility without the prior approval of the ORC. The development of the TCP is also a mandatory precursor to an application for a deemed export license or technical assistance agreement.  

Screening the Customer and Restricted/Prohibited Exports and Transfers

As an educational and research institution, there are numerous types of customers that may require screening. Vendors and sponsors are screened by the UMass President’s Office when they are established in the system.

International Students, Faculty, and Visitors

International students, faculty and visitors whose visas are sponsored by UMass Amherst must report to the Office of Global Affairs (OGA) upon arrival at UMass Amherst. OGA requires that the student present original visa and passport documents and makes copies for the student's record, and then processes the visitor through the Department of Homeland Security’s SEVIS database. UMass Amherst assumes that students holding valid U.S. visas have been cleared by the U.S. Citizenship and Immigration Services.

International visitors may come to campus for a variety of other reasons, including to tour various research laboratories or other public areas, and they may not be on a UMass Amherst-sponsored visa. These visits should be requested through OGA’s VIP system to ensure they are properly screened and documented. ORC screens all such requests, similar to screens of requests for UMass-sponsored visas.