Export Controls

Controls and Security

Export control regulations are federal laws governing the export, transfer or sharing of certain commodities or information for reasons of national security or protections of trade. Export controls may arise for one or more of the following reasons:

• The nature of the export has a military application or economic protection issues.
• There are governmental concerns about the country, organization or individual receiving the information or technology.
• The end use or the end user of the export are of concern.

Three sets of federal regulations come into play when the “licensed controlled actions” are involved in university sponsored research:

• The Export Administration Regulations (EAR) are administered by U.S. Department of Commerce. They cover dual use (civilian or military) technology.
• The International Traffic in Arms Regulations (ITAR) are administered by the U.S. Department of State and cover military work, defense goods and services (whether used by the military or not).
• The Office of Foreign Assets Control (OFAC) is the part of the U.S. Department of Treasury that covers sanctioned countries controls.

Possible exceptions applicable to university research

Most of the research and education activities taking place at the university are excluded from export controls because UNC Asheville can assert the fundamental research exception.

• Fundamental research exception: this exception in both EAR and ITAR pertains to basic or applied research in science and engineering performed or conducted at an accredited institution of higher learning in the U.S. where the results will be published and shared broadly in the scientific community (and under the EAR where the resulting information has been or is about to be published). Fundamental research is distinguished from research that results in information restricted for proprietary reasons, national security reasons or pursuant to specific U.S. government access and dissemination controls. If the subject of review involves a contract with publication restrictions of any type (including pre-publication approvals), for other than the sponsor’s review of its proprietary information, you may not rely on the fundamental research exception.
• Public domain: term used for information that is published and generally accessible or available to the public through a variety of means. Both the EAR and ITAR provide that no license is needed to disclose technical information to foreign nationals inside the United States in classes or laboratories, at conferences or in publications if the information is in the public domain. The EAR and ITAR define public domain differently. The EAR requires that the information has been, is about to be, or is ordinarily published. The ITAR exception requires that the information has been published (EAR 732.2, 734.7; ITAR 120.11(8)). The fundamental research and public domain exclusions apply only to information or technical data. They do not apply to things (physical items including, for example, specified scientific equipment) or services (e.g., training foreign nationals inside or outside the United States). Other exemptions may apply to exports of equipment and services even if the fundamental or public domain exemptions do not.

For assistance in determining whether a project is subject to export controls, see the “Export Control Decision Tool” (under construction) or contact us.

Security clearances

UNC Asheville, as an institution, does not engage in classified work on campus. On occasion, however, access to classified materials may be necessary. If an employee is requested by an outside agency to obtain a security clearance, the employee should contact UNC Asheville’s Chief Research Officer for assistance. The employee may need security clearances to perform certain types of research at contractor facilities.

If an employee receives classified materials, the employee must contact the Chief Research Officer immediately. Materials must remain intact and unopened.

In the normal course of a sponsored project, certain aspects of the work may develop in such a way that the federal government may require classification. In these situations, the principal investigator (PI) must notify the Chief Research Officer immediately. This requirement does not include the development of processes or procedures for commercialization of patents.

Questions

For other questions concerning classified research or security clearances contact the Export Control Officer

Form I-129 Visa Petition

Employers must certify compliance with U.S. export licensing requirements when petitioning for H-1B, H1-B1, L-1, and O-1A visa classifications on behalf of employees.

The U.S. Citizenship and Immigration Services (USCIS) Form I-129 (Rev. 11/23/10) — Petition for a Nonimmigrant Worker — includes an export compliance certification in Part 6 of the form. Affected employees requiring the export certification could include faculty, postdoctoral candidates, technicians, or other staff categories. This certification is not required for student (F-1) or visiting scholar (J-1) visa petitions.

Understanding the Certification

When UNC Asheville makes technology or technical data accessible to a foreign national, it is considered a release of the technology or technical data for export. This release of technology is referred to as a “deemed export,” as the export is deemed to have taken place, even though nothing was literally transmitted or exported across the U.S. border. UNC Asheville may be required to obtain a government license before the foreign national is permitted to work with or have access to the covered technologies or technical data.

UNC Asheville is required to certify that:

1. A license is not required from either the U.S. Department of Commerce or the U.S. Department of State to release such technology or technical data to the foreign person; or
2. A license is required from the U.S. Department of Commerce and/or the U.S. Department of State to release such technology or technical data to the beneficiary and the petitioner will prevent access to the controlled technology or technical data by the beneficiary until and unless the petitioner has received the required license or other authorization to release it to the beneficiary.

Completing the Certification

The prospective employee’s faculty sponsor or supervisor will complete and submit a I-129 Deemed Export Questionnaire with questions about the work planned for the employee (proposed duties in the United States). UNC Asheville’s Export Control Officer will review the Export Administration Regulations (EAR 15 CFR 730-774) and/or International Traffic in Arms Regulations (ITAR 22 CFR 120-130) to determine whether or not a U.S. government export license is needed to release export controlled technology or technical data to your employee. When applicable, the Export Control Officer may collaborate with General Counsel and administrators to determine the appropriate action needed to facilitate the I-129 application. When the review is complete, the export officer will certify the Deemed Export Certification Form and advise the Office of the Provost as to whether a license IS or IS NOT required.

If an export license is needed from the Commerce Department or State Department for your employee, the Export Control Officer can prepare license requests and submit them on behalf of the University. Bear in mind though, filing for export licenses takes time (45 to 90 days after license application) for approval from the government after filing. Failure to obtain the appropriate license or other government approval, or failure to file correct export information on the visa petition, can have civil and criminal penalties.

International Collaborators & Travel

Collaborations provide opportunities for sharing information and foreign travel in some instances. It is important to understand export control regulations and travel restrictions when facilitating collaborations with foreign entities.

Traveling outside the United States for professional reasons may require a license. This can depend upon:

• the destination (whether it is an embargoed country)
• the equipment or information that you will travel with or share

In general, if traveling to a country without sanctions to conduct fundamental research or present information that is or will be published or publicly available, you will not need a government-issued license. These activities typically fall under the Fundamental Research Exclusion.

Sanctioned countries

Travel to most countries will not require a government-issued license. If traveling to a sanctioned country, you will likely need a government-issued license. For a complete and current list of sanctioned countries, visit the U.S. Department of the Treasury: Sanctions Programs and Country Information page.

Contact us to determine licensing requirements as soon as possible.

Are you bringing equipment or data?

Export controlled equipment can include scientific equipment, laptops, PDAs, GPS, proprietary or complex software, software with encryption technology, prototypes, materials, components, hardware, or samples.

It is important to note, some export control licenses can take up to a year to obtain for certain technologies.

Export controlled data can include technical data, proprietary data, restricted data, unpublished data or data about export-controlled technologies.

When traveling, minimize risk by taking a clean laptop or mobile device and leave unnecessary and unpublished research data at UNC Asheville. If the piece of equipment is a “tool of the trade,” the traveler will need to certify to the University that the equipment falls into this category and will be leaving the country. Travelers will need to complete the University’s online temporary export exemption form.

If researchers have access to export controlled information, it is important that they do not discuss or disseminate this information abroad. Researchers can freely discuss only fundamental research information that has already been published or publicly available.

The University Export Decision Tool (under development) can help determine if any equipment or data is export controlled. Contact us to determine licensing requirements as soon as possible.

Travel authorization letters

Employees must comply with U.S. laws and regulations when traveling internationally on University of North Carolina at Asheville business. Travel authorization letters are given upon request to any students, faculty and staff traveling internationally. These letters are highly recommended for travel related to export-controlled projects. To request a travel letter, contact us.

Travel warnings

UNC Asheville strongly recommends against, but does not prohibit, travel to countries where the U.S. Department of State has issued an official Travel Warning, or where there is other reliable information of significant health or safety risks. The final decision about making a trip to such a country is up to the individual making the trip; however, UNC Asheville reserves the right to require the execution of an appropriate release or waiver before permitting such travel.

• Country Specific Information
• Current Travel Alerts and Warnings
• Sanctions Programs and Country Information
• Traveler’s Checklist

International Shipping

ORSP recommends the use of courier service for international shipments as they have several export control questions that will enable the shipper to determine if a license is required. You may also use the Export Control Decision Tool (under development) to help determine if the materials may be export controlled. If you believe a shipment may contain export controlled materials, contact us.

Pro forma invoices

You may need pro forma invoices for shipment and entry into the destination country. To request a Pro Forma invoice, contact us. You will need to provide the following information:

• name, address and phone number for the Exporter of Record
• name, address and phone number for the Importer of Record
• description, quantity, weight and value of item being shipped

ORSP will review the materials, help identify if the materials are subject to any export restrictions, and provide a finalized pro forma invoice if no issues are identified.

Materials transfer agreements and permits

Depending on the destination country and the material being shipped, you may need permits to import into the destination country or they may not clear customs. Researchers are responsible for obtaining the necessary permits. Any materials that you send to collaborators or other parties for use in research require a Materials Transfer Agreement (MTA) prior to the transfer. This agreement helps to preserve ownership of information and intellectual property. If you have a need for a MTA, please contact us to begin the process of developing the document

FAQs