An export occurs whenever any item (i.e., any commodity, software, technology, or equipment) or information is sent from the U.S. to a foreign destination or provided to a foreign national here or abroad. The manner in which the transfer or release of the item or information occurs does not matter. Some examples of export activities include: the shipment of items, written or oral communications, hand-carrying items when traveling, providing access to or visual inspection of equipment or facilities, and providing professional services

Visiting scholars and researchers provide valuable opportunity for collaborative research and cross-cultural interactions.  Unfortunately, they also provide an opportunity for others to access research or technology of interest to their home institution or government, which may violate US Export Control laws. If you receive an unsolicited request from someone overseas requesting to conduct research in your laboratory, please forward the email to the export controls office: ndsu.exportcontrols@ndsu.edu.  The individual, their home institution and proposed research area can rapidly be screened for export control and other risk factors. We look for things like academic match with the department and you (our faculty);  funding (how the visitor will be funded); the specific area of research the visitor is interested in; screening them through government watch lists; any export controls in place, and related areas.

A deemed export is the release or transmission of information or technology to any foreign national in the U.S., including students, post-docs, faculty, visiting scientists, or training fellows. A deemed export is treated as an export to that person’s home country. Deemed exports are an area of high risk for export control exposure for the university

The U.S. government agencies define the “term export” broadly. It is not limited to shipment of an item to an overseas country. When applying the U.S. export regulations the NDSU community should be familiar with these definitions:

 U.S. Person (EAR Part 722 and ITAR 120.15)

 Pursuant to EAR and ITAR, a U.S. person includes:

• A U.S. citizen
• A U.S. permanent resident (“Green card holder”)
• Any individual granted status as a “protected person” (person granted asylum or person granted refugee status)
• Any business/corporation/organization/group incorporated in the United States under U.S. law
• Any part of the U.S. government

 Foreign Person

• A foreign person is anyone who is not a U.S. person.
• Persons in the U.S. in non-immigrant status (for example: H-1B, H-3, L-1, J-1, F-1 practical Training)
• Persons unlawfully in the U.S.

 If the person is not a U.S. person, when applying the “deemed export: rules the EAR looks at the person’s most recent citizenship or permanent residence. The ITAR looks at the person’s country of birth and all current citizenships. 

An import is a good or service brought into a country.

Some imports require a government agency approval or an import license to bring them into the U.S. For example: foods, cosmetics, automobiles, agricultural products, military items, live animals, and pharmaceuticals. 

A temporary import means bringing a good into a country for a period of time before it will be returned to the country from which it was shipped. Temporary imports may require a special clearance through Customs with specific documents on the entry and the departure.

Dual use technology or equipment is designed or suitable for use by both civilian and military purposes.    

Fundamental Research is defined by the National Security Decision Directive 189 (NSDD189) as “any basic or applied research in science and engineering, the results of which are ordinarily published and shared broadly within the scientific community…”

In order to qualify as Fundamental Research, the research must be conducted free of any publication restrictions and without any access or dissemination restrictions. Research that qualifies as Fundamental Research is NOT subject to export controls as provided for under the federal regulations (15 CFR§734.8). It is critical to note that the Fundamental Research Exclusion will be lost if a researcher agrees to any “side-deals” allowing sponsors the ability to review and approve publications or to control access to the project or project results. Loss of the Fundamental Research Exclusion can quickly put your research in jeopardy of non-compliance with export controls.

There are several scenarios that may require an export license including, but limited to:

• A physical transfer/disclosure of an item outside the U.S.
• Any transfer/disclosure of a controlled item or information within the U.S. to a foreign national
• Participation of foreign national faculty, staff, or students in affected research
• Presentation/discussion of previously unpublished research at conferences or meetings where foreign national scholars may be in attendance
• Research collaborations with foreign nationals and technical exchange programs
• Transfers of research equipment abroad
• Visits to your lab by foreign national scholars

To learn more, contact the Export Controls Office (ndsu.exportcontrols@ndsu.edu), we will work with you to determine if an export license is needed and/or to establish a Technology Control Plan.

Generally speaking, the export control regulations permit U.S. universities to allow foreign nationals (e.g., students, faculty, academic appointees, and non-employee participants in University programs) to participate in fundamental research projects without securing a license, provided there are no controls on publication or access restrictions. We may also share with foreign nationals in the U.S. or abroad 'technology' or ‘software’ that arises during, or results from, fundamental research and is intended to be published." This carve-out is known as the Fundamental Research Exclusion, or the FRE. The export control regulations also permit U.S. universities to release information by instruction, also without securing a license.

However, it is important to note that even in the conduct of fundamental research and instruction, an export control license may be required if the project involves the exchange of export-controlled information, access to export-controlled technology, a non-research function (e.g., a service agreement) where there is access to export-controlled technology, or access to ITAR-controlled equipment

There are three principal exclusions from the export regulations:

1. Public Domain / Publicly Available Information (i.e., materials available in newspapers, libraries, or presented at publicly available conferences and trade shows, publicly available technology or software, websites accessible to the public for free and without the host’s knowledge or control of who visits the site, and published patents);
2. Educational Information, i.e., "information concerning general scientific, mathematical, or engineering principles commonly taught in schools, colleges, and universities" (see ITAR §120.10(b)), and information by "instruction of a catalog course or associated teaching laboratory of an academic institution" (see EAR §734.3(b)(3)(iii)); and
3. Fundamental Research (i.e., basic or applied research in science, mathematics and engineering where the resulting information is ordinarily published and shared broadly within the scientific community, and for which the researchers have not accepted restrictions for proprietary or national security reasons).

The Fundamental research exclusion may be void if the university or the principal investigator accepts or agrees to any of the following:

• proprietary research
• the researcher agrees to a ‘side deal’ allowing the sponsors the ability to review and approve publications or to control access to the project or project results
• foreign national controls or approvals
• national security controls.

Information that is already published or is out in the public domain is considered public information and, as provided for under the federal regulations is NOT subject to export controls. Examples of information in the public domain include:

• Books, newspapers, pamphlets
• Publically available technology and software
• Information presented at conferences, meetings, and seminars open to the public
• Information included in published patents
• Websites freely accessible by the public

There are a few options available depending on the particulars of the situation. For example, we may want to register the items with US Customs prior to departing the US and have them travel as ‘tools of the trade’; we may need to obtain a ‘carnet’ which acts as a passport for the equipment; duty may need to be paid. Contact the Export Control Office at ndsu.exportcontrol@ndsu.edu for assistance.

The DUO mobile app and hardware tokens used by NDSU as part of its 2 factor authentication process are encryption items that are subject to export control regulations.  NDSU’s export control office has determined that the DUO app and hardware tokens themselves are controlled to Cuba, Iran, North Korea, Sudan, Syria and the Crimea Region of Ukraine. If you travel to one of these countries you must delete the DUO Mobile app from any device you take with you. Also, you cannot take a DUO hardware token with you. While in one of these countries use a phone call or passcode retrieved via SMS to authenticate with the Two-Step Login.  Contact Sharon May in the Export Control office with questions or to see if a license exception is available for the specific country you will be visiting. 

The principal Investigator (PI) on a given project has the best understanding of his or her research and, therefore, is best suited for determining whether the particular technology, data, or information in that research may have export control issues.

To help determine if a project is export controlled, answering these questions will guide the PI in determining export control issues:

• Shipping equipment to a foreign country?
• Collaborating with foreign colleagues in foreign countries?
• Training foreign nationals in using equipment?
• Working with a country subject to US boycott (Cuba, Iran, North Korea, Sudan, Syria, Crimea region of Ukraine)?
• Is the RFP marked “Export Controlled”?
• Is the sponsor requiring pre-approval rights over the publications or participation of foreign nationals?

If YES to any of these a license determination must be made by NDSU Export Controls office. Contact: Ndsu.exportcontrols@ndsu.edu

When you leave the United States, everything you take with you is an export, including devices, software, and data. Most items are subject to the Export Administration Regulations (EAR).  

• Personal items: clothes, toiletries, articles of adornment, medicine, their containers, etc.
• Personal electronic devices: laptop, tablet, PDA, flash drive, smartphone and software on them such as Windows, Adobe, etc.
• Information: documents, drawings, data, software and software on laptops
• Tangible research items and materials: Research items, such as equipment, may appear ‘more interesting’ and are more likely to draw attention from Customs or security officials.
• Document your items, origin, ownership and value: If you take a personal item of value to avoid duty upon your return to the U.S. Customs and Border Protection form CBP 4457 (available in the Export Control office) can help. It needs to be signed by CBP before you depart.
• Device inspection: US Customs officials (and Customs in other countries) are authorized to search and retain electronic devices including digital cameras, cell phones, media players, disk drives and others even without probable cause to look for violations of export controls as well as other laws and regulations. To prepare for this:
  • Don’t carry data you don’t want others to see
  • Don’t carry the only copy of anything you cannot affords to lose
  • Have a Plan B
  • Consider taking a clean laptop furnished by NDSU IT

Information that is published or generally accessible to the public (for example, through a conference or webinar) is considered in the public domain or publicly available and not subject to export control regulations. However, you should assure that the webinar is indeed open to the public, such that all technically qualified members of the public are eligible to attend, and that attendees are permitted to take notes or otherwise make a personal record (not necessarily a recording) of the proceedings and presentations. A registration fee may be charged if it is reasonably related to the cost of putting on the conference, and reflects an intention that all interested and technically qualified persons be able to attend. However, you may limit actual attendance, as long as attendees either are the first who have applied or are selected on the basis of relevant scientific or technical competence, experience, or responsibility. Evaluation is case-specific; thus, it is recommended that you contact the Export Control Office to review your circumstances.

Generally speaking, the export control regulations permit U.S. universities to allow foreign nationals (e.g., students, faculty, academic appointees, and non-employee participants in University programs) to participate in fundamental research projects without securing a license, provided there are no controls on publication or access restrictions. We may also share with foreign nationals in the U.S. or abroad 'technology' or ‘software’ that arises during, or results from, fundamental research and is intended to be published." This carve-out is known as the Fundamental Research Exclusion, or the FRE. The export control regulations also permit U.S. universities to release information by instruction, also without securing a license. However, it is important to note that even in the conduct of fundamental research and instruction, an export control license may be required if the project involves the exchange of export-controlled information, access to export-controlled technology, a non-research function (e.g., a service agreement) where there is access to export-controlled technology, or access to ITAR-controlled equipment.

Any research activity may be subject to export controls if it involves the actual export or "deemed export" of any goods, technology, or related technical data that is either 1) "dual use" (commercial in nature with possible military application) or 2) inherently military in nature.

Work in the following areas is considered high risk:

• Engineering
• Space sciences
• Computer Science
• Biomedical research with lasers
• Research with encrypted software
• Research with controlled chemicals, biological agents, and toxins

 In addition, any of the following raise export control questions for your project:

• Sponsor restrictions on the participation of foreign nationals in the research
• Sponsor restrictions on the publication or disclosure of the research results
• Indications from the sponsor or others that export-controlled information or technology will be furnished for use in the research
• The physical export of controlled goods or technology is expected

"Export" is defined not only as a physical transfer/disclosure of an item outside the U.S., but also as a transfer/disclosure in any form of a controlled item or information within the U.S. to anyone who is a foreign national (not a U.S. citizen or permanent resident). This is called the "deemed export" rule. As a result, unless an exclusion or exemption is available, the University may be required to obtain prior governmental approval (in the form of an export license) before allowing the participation of foreign national faculty, staff, or students in affected research. In some cases, a license may not be available at all based on the country involved.

The following are additional examples of situations in which a license may be required:

• Presentation/discussion of previously unpublished research at conferences and meetings where foreign national scholars may be in attendance
• Research collaborations with foreign nationals and technical exchange programs
• Transfers of research equipment abroad
• Visits to your lab by foreign scholars

The Fundamental Research exclusion(FRE) can be lost if investigators enter into side agreements (including material transfer and non-disclosure agreements) that contain publication restrictions or restrictions on who can participate in the research. It is crucial that principal investigators not enter into any such agreements or any agreements that mention export controls without guidance.

The US Census Bureau and Customs and Border Protection require that for certain exports, Electronic Export Information (EEI) be filed prior to export.  The Export Control office will assist with the filing. Filing is required 2 hours prior to departure or earlier (8 hours if ITAR-controlled).

The following types of exports require filing of EEI (also known as a Shipper’s Export Declaration)

• Shipments wherein any one (1) type of product is valued at $2,500.00 or more
• Shipments wherein any one (1) or more items require an export license
• Shipments wherein any one (1) or more items are moving under a license exception
• An export of university owned equipment (such as a laptop)

Various exemptions for EEI filing exist (temporary exports, shipments to Canada, etc.)

EEI is submitted to the Census Bureau through an online portal called ACE.  Most couriers or freight forwarders can file EEI on behalf of NDSU also if authorization is provided.

If the project is outside of the "fundamental research" exclusion, the Export Control Office will work with the investigator to minimize the compliance burden under the EAR or the ITAR.

For projects subject to the EAR, a "license exception" may be available. A license exception would preclude the need for an export license. If we cannot use a license exception, it may be necessary for the export control office to secure an export control license from the appropriate government agency before the investigator can proceed with the work.

If the "fundamental research" exclusion does not apply, no license exceptions are available and an export license cannot be secured from the relevant agency within a reasonable time and under reasonable conditions, the project will either need to be revised to bring it back under the "fundamental research" exception or else the project may not be undertaken at the university.