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Expert Comments: The sponsor might have a legitimate reason to be concerned. U.S. export control regulations can limit who works on certain research projects, and sponsors often do require that only U.S. citizens work on projects that are subject to those export controls. But perhaps you’re not doing any of the research outside the United States, so where’s the “export” part that causes worry?

Strangely enough, export control regulations also may apply to activities that take place inside the United States. Specifically, they may apply to “deemed exports,” which are the transfer, inside the U.S., of information or technology to a foreign national (a non-U.S. citizen or permanent resident). Further, the technology doesn’t have to be top secret or classified for export control regulations to apply.

In a nutshell, export control regulations come in three “flavors”:

(a) U.S. State Department’s International Traffic in Arms Regulations (ITAR), which cover defense-related items, services and technical data;

(b) U.S. Department of the Treasury’s Office of Foreign Assets Controls regulations (OFAC), which may prohibit payments to certain embargoed countries or to companies/individuals on the Specially Designated Nationals List (SDNL); and

(c) U.S. Department of Commerce’s Export Administration Regulations (EAR), which cover “dual-use” items and technology (i.e., ,materials with potential commercial and military/security applications).

If an item or technology is subject to export control regulations and no exclusion or exception applies, then you may have to get a license from the U.S. government to take the item/technology outside of the United States, or to have a foreign national work on it inside the United States.

Of course, a great deal of research is not subject to export control regulations because exclusions apply. For instance, there are exclusions for information that is publically available, educational information taught in academic courses, and patent information. The most important exclusion in the research arena is the Fundamental Research Exclusion (FRE). The FRE covers “basic and applied research in science and engineering when the resulting information is ordinarily published and broadly shared within the scientific community.” The exclusion permits fundamental research to be done by foreign nationals in the U.S. without having to get an export license.

If you’re not actually sending anything outside of the U.S. or working on military research, “deemed exports” under the EAR regulations are your main concern. Given that your sponsor has specifically requested that only U.S. citizens work on the project, chances are good that the sponsor has a government contract in which it agreed that the research is subject to export controls. When a contract like this is in place, it’s time to say good-bye to the FRE (or any other exclusion), and instead make sure you have enough U.S. citizens to staff your project.

Further, even if the contract specifically doesn’t mandate the use of U.S. citizens to do the work, if it contains publication and data sharing restrictions, the result is the same because such restrictions negate the FRE. To avoid this situation, make sure that you read your sponsor’s contract in advance and delete personnel and publication restrictions so you can fall under the FRE. Remember, if you have a subcontract from a sponsor, you also need to read the sponsor’s underlying contract too.

Finally, if you’re planning on paying your new researcher from China a salary or stipend, you also need to think about the OFAC payment regulations. Although China’s not an embargoed country like Cuba or North Korea, you still need to make sure that the researcher is not a person to whom the United States has prohibited the “transfer of anything of value.” You can do this by checking to see if your new researcher’s name is on the SDNL on OFAC’s website (http://www.treas.gov/offices/enforcement/ofac/sdn/index.shtml). When you check, make sure you look for alternate spellings, and make sure you include in your project file documentation of the fact that you conducted this check. Print out the results page and make any appropriate notations regarding when you searched, the names you entered, and any information obtained.

Failing to follow export control regulations can lead to some stiff civil and/or criminal penalties. So it’s important to keep these requirements in mind whenever working on research projects with foreign nationals, even if all the work actually happens in the U.S.

Comments by Kristin H. West, J.D., Associate V.P. and Director, Office of Research Compliance, Emory University Atlanta

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