WHAT ARE EXPORT CONTROLS? U.S. laws and their implementing regulations that U.S. laws and their implementing regulations that govern the distribution to foreign nationals and foreign govern the distribution to foreign nationals and foreign countries of strategically important technology, services countries of strategically important technology, services and information for reasons of foreign policy and and information for reasons of foreign policy and national security.national security.

Licenses from the Department of State or Department Licenses from the Department of State or Department of Commerce may be required to export of Commerce may be required to export

• Department of State: International Traffic in Arms Department of State: International Traffic in Arms Regulations (ITAR) Regulations (ITAR) • Department of Commerce: Export Administration Department of Commerce: Export Administration Regulations (EAR)Regulations (EAR)

WHAT IS AN EXPORT?

Any oral, written, electronic or visual disclosure, Any oral, written, electronic or visual disclosure, shipment, transfer or transmission of commodities, shipment, transfer or transmission of commodities, technology, information, technical data, assistance or technology, information, technical data, assistance or software codes tosoftware codes to

• any person or entity outside the U.S. including a any person or entity outside the U.S. including a U.S. citizenU.S. citizen• a non U.S. individual wherever they are (“deemed a non U.S. individual wherever they are (“deemed export”)export”)• a foreign embassy or affiliatea foreign embassy or affiliate

FUNDAMENTAL RESEARCH

Fundamental ResearchFundamental Research means basic and applied means basic and applied research in science and engineering, research in science and engineering, the results of the results of which ordinarily are published and shared broadly which ordinarily are published and shared broadly within the scientific communitywithin the scientific community, as distinguished from , as distinguished from proprietary research and from industrial development, proprietary research and from industrial development, design, production, and product utilization, the results design, production, and product utilization, the results of which ordinarily are restricted for proprietary or of which ordinarily are restricted for proprietary or national security reasons.”national security reasons.”

The Fundamental Research Exclusion The Fundamental Research Exclusion applies only to applies only to the dissemination of research data and informationthe dissemination of research data and information,, not not to the transmission of material goodsto the transmission of material goods. .

FUNDAMENTAL RESEARCH EXCLUSION IS DESTROYED IF:

The university accepts any contract clause that:The university accepts any contract clause that:• forbids the participation of foreign personsforbids the participation of foreign persons• gives the sponsor a right to approve publications gives the sponsor a right to approve publications resulting from the research; orresulting from the research; or• otherwise operates to restrict participation in otherwise operates to restrict participation in research and/or access to and disclosure of research and/or access to and disclosure of research results.research results.

NOTENOTE: “Side deals” between a PI and Sponsor : “Side deals” between a PI and Sponsor destroy the fundamental research exclusion and destroy the fundamental research exclusion and may also violate university policies.may also violate university policies.

DEEMED EXPORTS

The disclosure or transfer of export controlled The disclosure or transfer of export controlled software, technologies or technical data to a foreign software, technologies or technical data to a foreign entity or individual entity or individual insideinside the US is “deemed” to be an the US is “deemed” to be an export to the home country of the foreign entity or export to the home country of the foreign entity or individual.individual.

COMPLIANCE RISKS FACED BY UNIVERSITIES

Universities have been largely immune from past Universities have been largely immune from past export control enforcement. This will likely change.export control enforcement. This will likely change. Increased scrutiny of all exports, and universities in Increased scrutiny of all exports, and universities in particular, following 9/11.particular, following 9/11. Agencies criticized for failure to enforce “deemed Agencies criticized for failure to enforce “deemed exports.”exports.” U.S. export controls create significant tensions with U.S. export controls create significant tensions with university policies of non-discrimination based on university policies of non-discrimination based on nationality and a free and open campus.nationality and a free and open campus.

PENALTIES FOR NONCOMPLIANCE ITARITAR

• Criminal: up to $1M per violation and up to 10 years Criminal: up to $1M per violation and up to 10 years in prisonin prison• Civil: seizure and forfeiture of articles, revocation of Civil: seizure and forfeiture of articles, revocation of exporting privileges, fines of up to $500K per violationexporting privileges, fines of up to $500K per violation

EAREAR• Criminal: $50K-$1M or five times value of export, Criminal: $50K-$1M or five times value of export, whichever is greater, per violation, up to 10 years in whichever is greater, per violation, up to 10 years in prisonprison• Civil: loss of export privileges, fines $10K-$120K per Civil: loss of export privileges, fines $10K-$120K per violationviolation

OFACOFAC• Criminal: Up to $1M and 10 years in jailCriminal: Up to $1M and 10 years in jail• Civil:$12,000-$55,000 per instanceCivil:$12,000-$55,000 per instance