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Trying to Understand Export Control Laws*

Milton T. Cole, Ph.D.Assoc. V.P. for Research and Sponsored ProjectsVillanova University

*(Borrowing heavily from the expertise and websites of the University of North Carolina and The Pennsylvania State University

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Why must we be concerned with Export Control Laws?

Certain export control laws may apply to research activities here and abroad.

Failure to comply may result in serious criminal and civil penalties for both institutions and individual researchers

Federal Government has increased enforcement and investigations of universities since 9/11/2001

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What are Export Control Laws?

Export control laws (“ECL”) are U.S. federal laws and regulations that regulate the export of strategically important products, services and technologies to foreign persons.

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Who/What is a “Foreign Person”?

Any foreign government;

Any foreign corporation or organization that is not incorporated or organized to do business in the U.S.;

Any individual who is not a U.S. citizen or lawful permanent resident of the U.S. (green card holder)

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What is an “Export”?

Transfer of controlled technology, information, equipment, software or services to a foreign person in the U.S. or abroad by any means. For example:

actual shipment outside the US visual inspection in or outside the US written or oral disclosure

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Recognize Potential Export Control Issue. Seek Guidance. Export control laws are not intuitively obvious. All researchers are ultimately responsible for their

own individual compliance. At a minimum, researchers need to know how to

recognize that an export control issue may exist, and then whom to contact for assistance.

This presentation is a summary designed to provide sufficient information for researchers to be able to spot export control issues.

Contact information for export control experts and links to online resources appears at the end of this presentation.

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What is the Intent of Export Control Laws?

Restrict exports of goods and technology that could contribute to the military potential of adversaries

Prevent proliferation of weapons of mass destruction (nuclear, biological, chemical)

Prevent terrorism Comply with U.S. trade agreements and trade

sanctions against other nations

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What are the Export Control Laws and their Federal Agencies?

State Department: International Traffic in Arms Regulations (ITAR), which pertain to inherently military technologies

Commerce Department: Export Administration Regulations (EAR), which pertain to “dual use” technologies (civilian or military use)

Treasury Department, Office of Foreign Assets Control (OFAC): Prohibits certain transactions with countries subject to boycotts, trade sanctions and embargoes

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International Traffic in Arms Regulations (“ITAR”)

Covers controlled technologies of an inherently military nature

Exporters of defense services or related technical data are required to register with the federal government and may need export licenses.

List of ITAR controlled technologies (“Munitions Control List”) is available at this website

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Technical Data regulated by ITAR Technical Data -- information required for the design, development,

production, manufacturing, assembly, operation, repair, testing, maintenance or modifications of defense articles on the MCL -- are regulated by ITAR.

Examples of Technical Data: Blueprints, drawings, plans, instructions, diagrams,

photographs.

Technical Data Exclusion: “Technical Data” does not include information concerning general scientific, mathematical or engineering principles commonly taught at universities or information in the public domain.

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Export Administration Regulations (“EAR”) EAR covers equipment, materials and other

technologies with both commercial and military applications, the so called “dual use” technologies (e.g., chemicals, satellites, software, computers, etc.)

EAR’s list of controlled technologies is called the Commodity Control List (CCL) and is available at this website

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Office of Foreign Assets Control ("OFAC") Regulations OFAC enforces economic and trade sanctions

against specific foreign countries, terrorists, international narcotics traffickers, and those engaged in weapons of mass destruction proliferation.

Countries currently sanctioned are the Balkans, Burma, Cuba, Iran, Iraq, Liberia, Libya, North Korea, Sudan, Syria, and Zimbabwe.

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Sanctions Programs Enforced by OFAC can be Highly Restrictive

Sanctions Programs may restrict: Payments (compensation, honoraria, contracts) to

embargoed countries/nationals/entities Attendance at/planning of international

conferences Surveys and services to embargoed

countries/nationals/entities Editing or joint authorship of articles with

nationals of sanctioned countries

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OFAC Enforces Country-Specific Sanctions Programs

Before traveling to a sanctioned country, or trading with or providing services to persons in sanctioned countries, individuals must first educate themselves on the specific sanctions program for that country to determine whether such transactions are permitted.

OFAC’s website contains up-to-date information on each of the sanctions programs http://www.treas.gov/offices/enforcement/ofac/

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Potential Impact of Export Control Laws on Research If a research project involves controlled technologies,

the researcher may be required to obtain a government license before: Equipment, chemicals or technologies subject to

EAR or ITAR may be sent or taken outside the U.S.

Foreign researchers or students – even if located in the U.S. on your campus – may participate in research involving equipment, chemicals or technologies subject to EAR or ITAR (known as a “deemed export”)

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General Rule:

General Rule: Faculty and employees may not send or take export-controlled equipment, chemicals or technologies to foreign persons without a license from the U.S. Government, unless an exclusion applies.

Fortunately, the majority of research will be covered under an exclusion to the ECL requirements.

What are the exclusions?

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Exclusions from Export Control Laws

Public Domain Exclusion (ITAR, EAR) Education Exclusion (ITAR, EAR) Employment Exclusion (ITAR only) Fundamental Research Exclusion (ITAR,

EAR)

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Public Domain Exclusion

No license is required to export or transfer information and research results that are generally available to the interested public through: Libraries, bookstores, or newsstands, Trade shows, meetings, seminars in the U.S. open to the

public, Published in certain patent applications, or Websites accessible to the public.

Note: the public domain exclusion applies to information and research results -- not physical equipment, substances, etc.

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Education Exclusion

No license is required to transfer information to students, including students who are foreign nationals, concerning general scientific, mathematical or engineering principles commonly taught in school, colleges or universities.

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Employment Exclusion

No license is required to share information subject to export control laws with a foreign national if the foreign national: is a full-time, bona-fide employee of the University; is not a national of certain countries of concern; has a permanent address in the U.S. while employed at the

University; and has been informed in writing not to transfer the

information to other foreign nationals.

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Fundamental Research Exclusion

No license is required for fundamental research, defined as basic or applied research in science or engineering at an accredited institution of higher learning in

the U.S.; and resulting information is ordinarily published and

shared broadly in the scientific community. Fundamental research is to be distinguished from

research the results of which are restricted for proprietary reasons.

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The Fundamental Research ExclusionIs Destroyed if:

The University accepts any contract clause in the sponsored research contract that: Gives the sponsor the right to withhold from

publication information resulting from the research; Forbids the participation of foreign nationals; or Otherwise operates to restrict participation in research

and/or access to and disclosure of research results.

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University Policy is to Protect Fundamental Research Exclusion

By refusing to accept research contract provisions that: limit the researcher’s right to publish or present

research results (a limited prepublication review by sponsor is ok); or

limit access or participation in the research by foreign nationals.

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Applying for and Obtaining an Export Control License

The process of determining if a license is required takes time.

After applying for a license, it can take several months to obtain a license from the Commerce or State Department.

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Laptop Baggage Exception for Temporary Export

Faculty and students who need to take their laptops out of the country in connection with university fundamental research may do so under the baggage exception for temporary export so long as: the country of travel is not under U.S. sanctions; the laptop is a "tool of trade“; and the laptop remains in their possession and control

at all times.

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Export Control Violations Subject to Severe Penalties Against Institutions and Individuals

Penalties for ITAR Violations: Criminal (Entities): Up to $1M Criminal (Individuals): Up to $1M / 10 years prison Civil Fines: Up to $500K and Forfeitures

Penalties for EAR Violations: Criminal (Entities): Up to $1M Criminal (Individuals): Up to $250K / 10 years prison Civil Fines: $10K - $100K

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Severe Export Control Violation Penalties (cont.)

Penalties for OFAC violations: Criminal (Entities): Up to $1M Criminal (Individuals): Up to $1M / 10 years prison Civil Fines: $12K - $55K per violation

Institution also subject to administrative penalties: Termination of export privileges (EAR and ITAR;

and/or Suspension and/or debarment from government

contracting (EAR and ITAR)