Gaining Access to Materials or Data for Research and Other Uses
When you receive materials or data from an outside entity (whether purchased or otherwise acquired) there usually are no export control implications. However, your subsequent use or sharing of materials / data could involve export control issues. Before you receive an item, determine if it is on the Commerce Control List (CCL) or subject to International Traffic in Arms Regulations (ITAR), so you can obtain appropriate licenses. Unless they are classified as EAR99 or consumer electronics in ECCNs 4A994 or 5D992, check with UB's export control office so they can help you clear materials / data before you receive them. This process allows for all appropriate measures including a Technology Control Plan (TCP) or a license and avoids the unwitting violation of export regulations which could result in civil or criminal penalties.
Getting Export Classification Information
For Materials or Technical Data
- Get a written determination form the supplier/manufacturer as to the ITAR or CCL classification.
- Make a copy of the supplier/manufacturer’s website showing the ITAR or CCL classification, convert it to a pdf file and print a copy.
- If the item was invented at UB, the inventor should get the classification from Technology Transfer.
Material Transfer Agreements
Technology Transfer (TT) handles Material Transfer Agreements (MTA) to protect UB's intellectual property rights when sending materials to non-UB personnel.
For Research Data or Other Information
Sponsored Projects normally writes the agreements and includes the following documentation:
- A clause to the effect that “all information and items being provided are the product of fundamental research and do not fall under ITAR or CCL classification above EAR99.”
- Or if applicable, your statement could read: “Any items or information that fall under ITAR or CCL classification will not be exchanged until they receive appropriate clearance from the recipient's export control office.”
- When no formal contract or agreement exists, get written verification that “all information being exchanged is the product of fundamental research."
- We recommend that you file this document with your other project documents and let others know its location.
Shipping and Sharing Physical Items or Technical Data
Fundamental Research Exclusion
The fundamental research exclusion covers the free sharing of information resulting from fundamental research projects. It does not pertain to any tangible products developed from that research (i.e., prototypes, materials, software or genetically modified organisms).
- The exclusion does not cover technical data that would allow for the production of a tangible item (e.g., a blueprint or schematic) or third-party proprietary information not in the public domain even if it is part of a fundamental research project.
Sharing Materials And Information
- To remain compliant, the university must evaluate potential off-campus shipments of physical materials, including biologics, chemicals, specialized scientific equipment, non-commercial software, source code or encryption code. This helps determine which items might need more documentation or an export license.
- When shipping to foreign countries or foreign persons within the United States, you are regulated by the category of the item(s), the destination country and/or the nationality of the individual or institutional recipient.
- UB's export control office can help guide you on U.S. regulations when sending materials to another country but not with the import requirements or procedures of the destination country. If shipping physical materials, we suggest you also work with a customs broker.
Shipping Chemical or Biological Materials
Contact UBs Environmental Health & Safety (EH&S) office if you plan to ship biological or chemical materials to ensure that they are appropriately packaged and labeled for safe shipping.
Sharing Data and Results
Fundamental Research Exclusion
Generally, you can share the results of your research data with others regardless of nationality because it is considered to be fundamental research.
However, sometimes sharing data falls outside the fundamental research exclusion. This occurs when the university's contract clause:
- Forbids the participation of foreign persons.
- Gives the sponsor publication approval rights (beyond a reasonable review period for checking proprietary information).
- Otherwise restricts participation in research and/or access to and disclosure of research results.
SUNY Guidelines
Side deals between researcher and sponsor are a violation of SUNY research policy. They also could eliminate the fundamental research exclusion, possibly exposing both the principal investigator (PI) and the university to export control issues.
SUNY policy prohibits the acceptance of any awards that restrict dissemination of research results (Document 1800) and/or foreign national participation (Document 1801).
- To protect state or national security, you can request a justifiable exception to this policy by submitting it to the chancellor or designee for approval. Sponsored Projects will assist you with this as part of the contract negotiation process.
- Any projects granted exceptions to these SUNY policies still need further review to determine if they need a technology control plan and/or export licenses.
Evaluating Your Project
To evaluate your project, ask yourself:
- Is there any restriction on participation of foreign persons as a part of the grant or contract?
- Is there any restriction on publication of research results?
- Is there a Confidential Disclosure Agreement (CDA) for exchanging information that may include proprietary information, including pending patent applications not yet published?
- Is there a technology control plan associated with this project?
- Am I dealing with strong encryption technology or technology that could be used for a military /defense purpose (even if a civilian purpose also exists)?
- If any of the above apply, please contact the export control office to discuss the situation because you might be restricted from disclosing research data. Sharing this information could violate export controls and be a breach of the grant/contract terms and conditions.
SPS Grants and Contracts
UB’s Sponsored Projects Services partners with the university community to prepare and submit proposals for sponsored funding and provides stewardship of awarded funds to ensure compliance with applicable regulations and policies.
Environment, Health and Safety
Environment, Health and Safety develops policies, procedures and compliance standards to ensure the safety of the university community.
View a list of services provided here.
Providing Services
If you, your laboratories or centers are providing services to outside entities (e.g., sample analysis, consulting and/or technical assistance), this activity is not protected by the fundamental research exclusion. Additionally, if your customers are not U.S. persons or institutions, your work might be considered an export, so check with the export control office.
Often, you are working with a U.S. corporation or government entity and you need take no additional action when providing results to them. If you are providing other materials, equipment or technical data may, you might need a Material Transfer Agreement.
While not an issue for most university-based research, please be aware that providing defense services (ITAR 120. 9) is prohibited in most cases unless you have an export license. This would include training of foreign nationals (whether in the U.S. or abroad) in conjunction with the design, development, engineering, manufacture, production, assembly, testing, repair, maintenance, modification, operation, demilitarization, destruction, processing or use of defense articles as well as supplying controlled technical data to foreign nationals anywhere.
Items NOT Protected as Research Data
- Tangible products developed from research (i.e., prototypes, materials, software, source code, encryption code, genetically modified organisms)
- Technical data that enables production of a tangible item (i.e., a blueprint or schematic)
- Third party proprietary information not in the public domain even if part of your fundamental research