Export Compliance Program

In general, the export control regulations cover four main types of University activities:

1. Transfers of controlled information, including technical data, to persons and entities outside the United States;
2. Shipment of controlled physical items, such as scientific equipment, from the United States to a foreign country;
3. Verbal, written, electronic, or visual disclosures of controlled scientific and technical information related to export-controlled items to foreign nationals in the United States. Such a transfer is termed a "deemed export" and is regulated because the transfer is "deemed" to be to the country where the person is a resident or a citizen;
4. Travel to certain sanctioned or embargoed countries for purposes of teaching or performing research.

Under the export control regulations, the export of certain goods and technology may be prohibited or a government license may be required to proceed with the export. While most exports do not require government licenses, licenses are required for exports that the U.S. government considers "controlled" under:

• International Trade Administration U.S. Department of Commerce (EAR) - (also known as the Commerce Control List). The EAR is concerned with dual-use items, such as computers or pathogens, that are designed for commercial use, but have the potential for military application.
• The Department of State's International Traffic In Arms Regulations (ITAR) (also known as the U.S. Munitions List) which covers defense-related items and services.
• The Treasury Department's Office of Foreign Assets Control (OFAC) Regulations OFAC administers and enforces economic and trade sanctions that have been imposed against specific countries based on reasons of foreign policy, national security, or international agreements. A list of all countries currently subject to boycott programs is also available on the OFAC website.
• Bureau of Industry and Security (BIS)

License Exception IEC authorizes specified items to be exported, reexported, or transferred (in-country) to, among, or within specified destinations, as identified for each respective item, in accordance with License Exception IEC Eligible Items and Destinations. A reference table is available HERE.

Because the New Mexico Tech embraces the concepts of academic freedom and open publication and dissemination of research findings and results, the export control regulations present unique challenges. Fortunately, both the EAR and the ITAR exclude fundamental research from the requirements of the regulations. Fundamental Research is defined as "...basic and applied research in science and engineering, the results of which ordinarily are published and 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 reason.” [National Security Decision Directive (NSDD) 189, National Policy on the Transfer of Scientific, Technical, and Engineering Information]

Information which is publicly available also is excluded from the purview of the export control regulations. To guarantee the application of these exclusions, researchers should publish their findings to the fullest extent possible and should not agree to confidentiality clauses or other terms that restrict the dissemination of research materials and results.

The fundamental research and public domain exclusions do not apply to tangible items that are being taken or shipped outside of the U.S. In such cases, those items must be analyzed to determine whether they are subject to export controls.

Malign foreign talent recruitment programs were defined by Congress in the CHIPS and Science Act of 2022. Malign foreign talent recruitment programs are programs, positions or activities sponsored by a country of concern* or by certain academic institutions. They include one or more of the following indicators:

(*Department of State - federally updated list of countries of concern)

• Engagement in the unauthorized transfer of intellectual property or other nonpublic information.
• Recruiting trainees or researchers to enroll in such program, position, or activity.
• Establishment of a laboratory, employment or appointment in a foreign country in violation of the terms and conditions of a U.S. federally funded research award.
• Inability to terminate program contract or agreement.
• Overcapacity, overlap or duplication.
• Research funding from the foreign institution’s government.
• Omission of U.S. home institution and/or funding agency acknowledgement.
• Nondisclosure of program participation.
• Conflict of interest and/or conflict of commitment.

United States Office of the President's Guidelines for Federal Research Agencies Regarding Foreign Talent Recruitment Programs:

Memorandum For The Heads Of Federal Research Agencies.

• An academic institution on the list developed under section 1286(c)(8) of the John S. McCain National Defense Authorization Act for Fiscal Year 2019 (10 U.S.C. 2358 note; Public Law 115-232); or
• A foreign talent recruitment program on the list developed under section 1286(c)(9) of the John S. McCain National Defense Authorization Act for Fiscal Year 2019 (10 U.S.C. 2358 note; Public Law 115-232).