Export Control

Export Control Laws and Regulations

US export controls are federal laws that are designed to protect the national security and foreign policy interests of the United States, including maintaining economic competitiveness. Export controls govern how technical data, equipment, or other items and materials are shipped, transferred, or transmitted to anyone overseas, including U.S. citizens, or to a foreign national whether it occurs in the United States or abroad. Penalties for violating export control laws can be severe both for the researcher and their institution.

Business Communication

In order for CNE to follow federal and state regulations, all business communications related to your work here, whether reporting findings or anything else related to performing your role as an employee, means that CNE will be the platform for that correspondence. There is a strict prohibition against using your school, faculty, or other email addresses to conduct CNE business.

Secure Login Process

Additionally, the secure login process to access the CNE platform (including your CNE Outlook account) minimizes risk to sensitive data whether it is Protected Health Information, intellectual property, sensitive information or other communications related to your role.

CNE Email Address

Please reference ConvergePoint for the full policy and use your CNE email address when emailing CNE related correspondence.

There are Three Export Control Regulations:

International Traffic in Arms Regulations (ITAR):

Overseen by the Department of State. Regulation covers exports with a primarily military or defense purpose.

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Export Administration Regulations (EAR):

Overseen by the Department of Commerce. Regulation covers exports with “dual use” application (defense and commercial use, or strictly commercial application). Most CNE exports will fall under EAR.

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Office of Foreign Assets Control (OFAC):

Overseen by the Department of the Treasury. OFAC governs transactions with countries subject to embargoes, boycotts, and trade sanctions.

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Definitions

Controlled Export

Specific types of exports (see definition of Export below) regulated by the federal government (e.g., commodity, biologics, equipment, software, encryption, technology, or technical information) sent from the U.S. to a foreign person or destination.

Deemed Export

The release or transmission of controlled technology or source code to any foreign person in the U.S. Release of this information is considered to be an export to the foreign national’s home country or country of current citizenship. Deemed exports can be conveyed through visual inspection, oral exchange, electronic/digital exchange, made available by practice/application (e.g., training).

Dual Use

Items, technology, and software that are designed or suitable for both civilian and military purposes are considered dual use and fall within the Export Administration Regulations (EAR).

Export (noun)

Any goods, including funds transfers, or services, including controlled exports (see definition of Controlled Exports above), conveyed across national borders for the purpose of trade. Exports include transfer of items or information to foreign embassies, overseas corporate affiliates, contractors, and U.S. citizens outside of the United States.

Export (verb)

An “Export” is any of the following activities with respect to controlled electronic/digital goods, items, technology, technical data, or software subject to either the EAR or ITAR: (1) actual physical shipment outside the United States; (2) electronic or digital transmission outside the United States which includes email, fax, file sharing, and other digital sharing avenues; (3) release or disclosure, including verbal disclosures or visual inspections, to any foreign national, whether in the United States or abroad (see definition of Deemed Export above); or (4) provision of Defense Services, as defined in the ITAR.

Export License

An export license is a written authorization provided by the appropriate regulatory authority detailing the specific terms and conditions allowing the export, re-export (see definition of Re-export below), or transfer (in-country) of controlled exports. Note: sending anything subject to export control regulations, including gifts, donations, and small items may require a license. The exporter/sender must determine whether the export requires a license prior to export.

Foreign National

Any person that is not a citizen of the United States is considered a foreign national.

Foreign Entity

Any foreign corporation, business association, partnership, trust, society or any other entity or group that is not incorporated or organized to do business in the United States, as well as international organizations, foreign governments and any agency or subdivision of foreign governments (e.g. diplomatic missions).

Fundamental Research

Fundamental Research is defined by the NSDD189 as: "Basic and applied research in science and engineering where the resulting information is to be shared broadly within the scientific community, as 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."

Fundamental Research Exclusion

The Fundamental Research Exclusion (FRE) is a legal exemption that protects research results (technical data or software [see definition of technical data below]) from export control laws and regulations.

The FRE applies to research that meets the following criteria:

The research is in the fields of science or engineering
The results are shared and published broadly within the research community
The researchers have not accepted restrictions for proprietary or national security reasons
The research takes place within the United States
There are no publication restrictions (limited review is allowable)
There are no sponsor restrictions on the nationality of personnel involved in the research

The FRE applies to the dissemination of research information and data (research results), but not to the transmission of material goods.

Some activities not covered by the FRE include:

Research conducted outside the United States
Shipping of an item
Tangible products, such as prototypes
Encryption software/source code
Non-research service agreements (such as teaching/training)
Training and technology transfer
Some tools, software, equipment, and data needed to perform the research

FRE Pic

Publication Restriction

A publication restriction can be:

A sponsor request that goes beyond a reasonable review period (usually around 30 days) for identifying sponsor proprietary information or for protecting intellectual property rights; or
A researcher's verbal agreement with the sponsor to not publish the results of a research project; or
A researcher's self-imposed restriction to not make the results of their research publicly available.

What Export Controls Mean for You

International Collaborators and Presentations

Foreign national (see definition above) collaborators and foreign entities, whether in the United States or not, should be screened to ensure compliance with export control laws. Disclosure of controlled data or technology to a foreign national in the United States is a “deemed export
- This includes those on H-1B or other types of Visas sponsored by CNE.
International travel to present unpublished data or results may be subject to export controls. This is especially true of there will be foreign nationals from sanctioned or embargoed countries present at the conference.
- Take care during presentation Q&A sessions to not violate export control regulations by sharing details of data, results, or technology during unscripted remarks.

International Travel

Per CNE Policy, international travel must be approved prior to departure. In addition to other requirements, this allows time to conduct proper export control evaluation and license procurement (if required).
Anything you take outside the country, including data and hardware, including laptops, cell phones, technology, etc, is an export.
- Hardware and/or software that is widely commercially available does not require an export license. Most CNE owned hardware will not require a license under the “tools of the trade” exemption.
  - The License Exception for Baggage applies to personally owned laptops, cell phones, and other technology. These items must be only for personal use.
- Traveling with high tech, confidential, unpublished, or proprietary information or data may require an export license depending on where you are traveling.
  - When determining if a license is required, consider all points along your route, not only your final destination, including transit stops and any other destination enroute to your final destination.
- In general, a license will be required to take any data or technology through or into a U.S. Sanctioned country (for example, Iran, Syria, Cuba, North Korea, and the Crimea Region of the Ukraine). Other areas may require additional coordination before departure (for example, Sudan, China, Hong Kong, Venezuela, Burma, Cambodia, Russia and Belarus)
Be sure to check the Department of State Travel Warnings prior to departure.

International Payments/Funding

International financial transactions need to ensure Care New England is not inadvertently proving financing to a blocked or sanctioned entity. Examples include: Subcontract to a non-US based entity, foreign national consultants, or paying research participants in other countries. CNE Sanction Screening through Corporate Compliance protects payments being provided to sanctioned individuals/entities.

International Shipping

Export control regulations apply to information, materials, equipment, and technology being shipped out of the country. Export license may be required even when items, equipment, or technology is used in or derived from, Fundamental Research. Limited exceptions exist and are based on type of item, destination, recipient, end use, and time at destination. It is your responsibility to reach out to Corporate Compliance if you are shipping internationally to understand if a license is required.

International Field Work

Research projects where part of the research takes place outside of the United States likely will not qualify for the Fundamental Research Exclusion and therefore would be subject to export control regulations.

Your Responsibilities

Complete Export Control Screening Form for all contracts and proposals.
- Respond to any follow up questions related to the form.
Ensure you and your research team have a basic understanding of export control laws and regulations so you can ensure your research is compliant.
- When export controls apply, individuals must take the appropriate steps to obtain any required governmental licenses, monitor and control access to restricted information, and safeguard all controlled materials.
Ensure Sanction Screening is completed for all collaborators, consultants, and entities that are part of your research.
- If an individual is determined to be on a sanction list after a contract is signed, CNE cannot pay them. Therefore, it would be up to you to meet the contract/financial terms with non-CNE funds.

**If you are unsure whether something meets the definition of an export reach out to Research Administration or the Office of Business Integrity & Compliance for guidance.**

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