Questions related to Export Control matters should be directed to Sharla Miles.
Click on a question below to learn more about the topic.
What are Export Controls?
Export Controls generally refer to the federal regulations, laws and policies governing the export of materials, data, technical information, services, and financial transactions to foreign countries based on U.S. security interests. These regulations include the ITAR, the EAR, and OFAC regulations.
What is an Export?
An Export is the shipment of any covered goods, items or data to a foreign country. It is also the electronic or digital transmission of any covered goods, items or related goods or items. It can be the verbal transmission of controlled information (phone, fax, email) to a foreign national here or abroad. 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.
What is a Deemed Export?
A Deemed Export refers to the disclosure of controlled information or technology to a foreign national within the U.S., including students, post-docs, faculty, visiting scientists, or training fellows. The deemed export regulation states that a transfer of “technology” (EAR term) or “technical data” (ITAR term) to the foreign person is “deemed” to be an export to the home country of the foreign person.
What is a Foreign National?
A Foreign National is defined as any natural person who is not a U.S. citizen, or is not a lawful permanent resident of the U.S. (i.e., does not have a green card), or who does not have refugee or asylum status.
What is the ITAR?
The International Traffic in Arms Regulations (ITAR) is implemented by the Department of State. These regulations are designed to cover materials and technologies whose primary purpose is considered to be military in nature. Materials covered under the ITAR are listed in the United States Munitions List (USML). Export of defense services, defense articles, and related technical data on the USML requires licensing from the Directorate of Defense Trade Controls (DDTC).
What is the EAR?
The primary focus of the Export Administration Regulations (EAR) is to control the export of dual use technologies – i.e., items that are used, or have the potential to be used, for military as well as non-military purposes if such export could adversely affect the national interest of the United States. The EAR falls under the Bureau of Industry and Security (BIS) in the U.S. Department of Commerce.
What is excluded from Export Controls?
In general, there are three primary exclusions from export controls:
- Published items and information (with the exception of certain encryption items)
- Instruction exception for usual academic offerings
- Fundamental Research
What is Fundamental Research?
Fundamental Research means basic or applied research in science and engineering performed or conducted at an accredited institution of high learning in the United States where the resulting information is ordinarily published and shared broadly in 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.
Aren’t Universities exempt from the Export Control Regulations?
Both the ITAR and the EAR have clauses providing exemption from the licensing requirements for fundamental university research. Information resulting from basic and applied research in science and engineering conducted at an accredited institution of higher education in the U.S. that is ordinarily published and broadly shared within the scientific community falls under this fundamental research exemption.
It is important to note that the Fundamental Research Exclusion (FRE) 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 FRE can quickly put your research in jeopardy of non-compliance with export controls.
Doesn’t Fundamental Research apply to all university research?
No, the Fundamental Research Exception doesn’t automatically apply to all university research. You can only claim for such a status under a strict set of conditions, including:
- No restrictions surrounding the publication of results
- Controlled EAR or ITAR technologies are not involved
- No need for encryption software
- A certainty that the results cannot be used for Weapons of Mass Destruction
But, even if you satisfy all these conditions, you will still need to screen foreign nationals you are working with because the law makes it a crime to have dealings of any kind with individuals and entities named on a Restricted Party list.
What are my duties as Principal Investigator (PI)?
Before starting any research project, the PI must determine whether export controls apply as well as ensure the non-participation of Restricted Parties.
If issues are identified, the PI must notify the Export Compliance Officer or an equivalent. After the project has begun, the PI must notify (if applicable) the Export Compliance Officer of any changes to the research, such as scope of work or the addition of new staff.
What is an export License?
An export license is a written authorization provided by the federal government granting permission for the release or transfer of export controlled information or item under a defined set of conditions.
How long does it take if a license is needed?
It may normally take 4-6 months to secure a license to export controlled materials from the U.S. or to transmit them to a non U.S. citizen or permanent resident within the U.S.
What are the consequences of violating the Export Control Regulations?
Fines for non-compliance with export controls are quite severe and can be levied at both the individual as well as the university. In addition to significant monetary fines and lengthy prison sentences, the potential loss of all federal funding and loss of export privileges would be devastating to the university. Violations under the EAR can bring civil penalties of $10,000 to $120,000 per violation and criminal penalties of $50,000 to $1 million per violation along with up to 10 years in prison. Violations under the ITAR can bring civil penalties of $500,000 per violation and criminal penalties of up to $1 million per violation along with up to 20 years in prison. Violations under OFAC regulations can bring civil penalties of $250,000 per violation and criminal penalties of up to 20 years in prison. Compliance is not optional.
Recent Enforcement Cases: On September 3, 2008, the U.S. government convicted retired University of Tennessee profession Dr. J. Reece Roth of illegally exporting information regarding U.S. Air Force sponsored research to one or more foreign nationals without an appropriate export license. One of the foreign nations in questions was a Chinese graduate research assistant in Dr. Roth’s laboratory. Dr. Roth was convicted on 18 counts and was sentenced to 48 months in prison.
In April 2013, the University of Massachusetts at Lowell was charged for violating export control laws in connection with the export of an atmospheric testing device and related equipment. The items at issue were all classified as EAR99 (meaning they could be shipped without a license to most destinations in most circumstances). However, the recipient of the items is on the Bureau of Industry and Security’s Entity List of people and organizations subject to special license requirements. The University did not obtain a license for the exports. The University entered into a Settlement Agreement and agreed to pay a civil penalty. The civil penalty of $100,000 was suspended for a two year period provided that the University did not engage in export violations during this period. This case reinforces the important point that even universities engaged in fundamental research are required to comply with export control laws.
What should I do if I think there has been a violation of the Export Control Regulations?
Violations of the Export Control Regulations as they pertain to your research need to be reported to Dr. Jerry Cook at 936.294.3620.