Stony Brook University Office of Research Services

Export Controls

Memorandum, November 19, 2010

 

 

Stony Brook Policy P 212: EXPORT CONTROL POLICY

Confidential Export Control Escalation Policy

Export Controls Compliance Manual

Stony Brook University is committed to the highest level of compliance with all applicable export control laws and regulations that pertain to the conduct and dissemination of our research and to the export of tangible items such as equipment, components, or materials.  While our primary mission is education, research and dissemination of knowledge, the responsibility remains to balance the services of this mission with safeguarding national assets through adherence of the export regulations, rules, and laws of our country.

Export controls regulate the disclosure, shipment, use, transfer, or transmission of any item, commodity, material, technical information or software, and encrypted software appearing on the U.S. government's controlled technologies lists for the benefit of a foreign person or foreign entity anywhere.

Additionally, export controls regulate transactions or the provision of services involving prohibited countries, persons or entities based on trade sanctions, embargoes, and travel restrictions.

WHILE MOST UNIVERSITY AND RESEARCH ACTIVITIES DO NOT REQUIRE AN EXPORT CONTROL LICENSE, ALL STONY BROOK UNIVERSITY AND RESEARCH FOUNDATION PERSONNEL ARE REQUIRED TO DEMONSTRATE THEIR DUE DILIGENCE AND TO DOCUMENT THEIR ADHERENCE TO THE APPLICABLE LAWS AND REGULATIONS.

Areas of University Export Review

Export control regulations can impact a variety of academic and administrative offices on campus.  The basic questions should be asked when partaking in activities that require the transfer of information and/or items.   

  • What type of activity are you doing?  
  • What items or technologies (information) are being used?
  • Where are any items or technologies (information) going?
  • Who will access the items or technologies (information)?
  • Why?  What will the end-user be using the items or technologies (information) for?

COEUS - Questionnaire Guidance

The questions in COEUS are designed to assist in the identification of situations where an export license may be required and/or where activities might void the Fundamental Research Exemption.

Export Control Questions Guidance

Export Types

Export controls regulate the disclosure, shipment, use, transfer, or transmission of any item, commodity, material, technical information or software, and encrypted software appearing on the U.S. government's controlled technologies lists for the benefit of a foreign person or foreign entity anywhere.

Additionally, export controls regulate transactions or the provision of services involving prohibited countries, persons or entities based on trade sanctions, embargoes, and travel restrictions.

Types include export, deemed export, re-export, and deemed re-export.

Export:  the shipment or transmission of any item that is sent from the U.S. to a foreign destination

  • to anyone outside the U.S., including U.S. citizens
  • to foreign entities, individuals, embassies or affiliates at any location, including the U.S.

“Items” include, but are not limited to, commodities, software or technology, retail software packages and technical information.

Deemed Export: the release of technology or software subject to the Export Administration Regulations to a foreign national in the U.S. (although this term in not expressly stated in the International Traffic in Arms Regulations the same principles apply).  Deemed exports can be conveyed through visual inspection, oral exchange, electronic/digital exchange, made available by practice/application (e.g. training).

Re-export: the shipment or transmission of an item subject to regulation from one foreign country (i.e., a country other than the U.S.) to another foreign country. Shipment or transmission may occur in any of the following ways:

  • phone
  • e-mail
  • lab tours
  • meetings
  • computer data

A re-export also occurs when there is a “release” of technology or software (source code) subject to regulation in one foreign country to a national of another foreign country.

Deemed Re-export:  transfer of controlled U.S. technology to a third-country national overseas.

Foreign National

Access to export controlled information to foreign nationals on campus under certain circumstances may require an export license.

Who is a foreign national?

The federal definition of a foreign national is a person who is NOT:

  • Granted permanent U.S. residence, as demonstrated by the issuance of a permanent residence card, i.e., a "Green Card"
  • Granted U.S. citizenship Granted status as a "protected person" under 8 U.S.C. 1324b(a)(3), e.g., political refugees, political asylum holders, etc.

The term for export regulations also includes:

  • Foreign corporations, businesses, associations, or other entity or group that is not incorporated or organized to do business in the U.S.
  • International organizations, foreign governments, and agency/subdivision of foreign governments        

I-129 Form.  US Citizen and Immigration Services (USCIS) Requirement.  Deemed Export Attestation for a foreign person on an H-1B, H-1B1 Chile/Singapore, L-1 or O-1A visa petitions.

The attestation is as follows:

With respect to the technology or technical data the petitioner will release or otherwise provide access to the beneficiary, the petitioner certifies that it has reviewed the Export Administration Regulations (EAR) and the International Traffic in Arms Regulations (ITAR) and has determined that:

  1. A license is not required from either the US Department of Commerce or the US Department of State to release such technology or technical data to the foreign person; or
  2. A license is required from the US Department of Commerce or the US Department of State to release such technology or technical data to the beneficiary and the petitioner will prevent access to the controlled technology or technical data by the beneficiary until and unless the petitioner has received the required license or other authorization to release it to the beneficiary.

Fundamental Research Exemption (Export Administration Regulations) and Information in the Public Domain (International Traffic in Arms Regulations)

Export control regulations exempt from licensing requirements technical information (but not controlled items) resulting from “FUNDAMENTAL RESEARCH” (FRE).   The EAR defines FRE (15 CFR 734.8), while the ITAR has fundamental research as a subset of Public Domain (22 CFR 120.11)

The principal investigator and the institution need to be cognizant of sponsor requirements that can destroy the FRE. 

Fundamental Research:  Basic and applied research in science and engineering where the resulting information is ordinarily published and shared broadly within the scientific community, as distinguished from research the results of which are restricted for proprietary reasons or specific U.S. Government access and dissemination controls.

  • Research conducted by scientists, engineers, or students at a university normally will be considered fundamental research;
  • Prepublication review by a sponsor to insure that proprietary information is not divulged does not change the status of the research;
  • Prepublication review by a sponsor to ensure that the publication would not compromise patent rights does not change the status of the research.

University research will NOT be considered fundamental research if:

  • The University or its researchers accept other restrictions on publication of scientific and technical information resulting from the project or activity;
  • The University or its researchers accept any restrictions on foreign national access to scientific and technical information resulting from the project or activity;
  • The research is funded by the   U .S. Government and specific access and dissemination controls protecting information resulting from the research are applicable;
  • Release of information from a sponsor to the university where initial transfer of information from a sponsor to the university where they have agreed that the sponsor may withhold information from publication ARE SUBJECT TO THE EAR;
  • Proprietary research, industrial design, production, and product utilization, the results of which ordinarily are restricted for proprietary reasons or specific national security reasons.

Federal Policy Memos on Fundamental Research

National Security Decision Directive 189 defined Fundamental Research and stated the intent was to allow products of Fundamental Research to remain unrestricted to the maximum extent possible.  Several memos have followed which restate the commitment to NSDD189.

Other Exemptions from Licensing Requirements

Under the Export Administration Regulations

Note: these exemptions exclude certain encryption software controlled by 5D002

Educational Information (15 CFR 734.9)

  • Released by instruction in catalog courses and associated teaching laboratories of academic institutions.

Published Information and Software (15 CFR 734.7)

Information is “published” when it becomes generally accessible to the interested public in any form, including:
  • Publication in periodicals, books, print, electronic, or any other media for general distribution to the public or persons interested either for free or at a price that does not exceed the cost of reproduction and distribution;
  • Readily available at libraries open to the public or at university libraries;
  • Patents and open (published) patent applications available at any patent office;
  • Release at an open conference, meeting, seminar, trade show, or other open gathering.

Information included in certain patent applications (15 CFR 734.10)

  • Information contained in a patent application prepared wholly from foreign origin  technical data where the application is being sent to the foreign inventor to be executed and returned to the United States for subsequent filing in the U.S. Patent and Trademark Office;
  • Information contained in a patent application, or an amendment, modification, supplement or division of an application, and authorized for filing in a foreign country in accordance with the regulations of the Patent and Trademark Office, 37 CFR part 5;1 or
  • Information contained in a patent application when sent to a foreign country before or within six months after the filing of a United States patent application for the purpose of obtaining the signature of an inventor who was in the United States when the invention was made or who is a co-inventor with a person residing in the United States.

Under the International Traffic in Arms Regulations

  • Public Domain (22 CFR 120.11)

Information which is published and which is generally accessible or available to the public:

  • Through sales at newsstands and bookstores;
  • Through subscriptions which are available without restriction to any individual who desires to obtain or purchase the published information;
  • Through second class mailing privileges granted by the U.S. Government;
  • At libraries open to the public or from which the public can obtain documents;
  • Through patents available at any patent office;
  • Through unlimited distribution at a conference, meeting, seminar, trade show or exhibition, generally accessible to the public, in the United States;
  • Through public release (unlimited distribution) after approval by the cognizant U.S. government department or agency;
  • Through fundamental research in science and engineering at accredited institutions of higher learning in the U.S. where the resulting information is ordinarily published and shared broadly in the scientific community.

International Travel

Tools of Trade (TMP). Usual and reasonable kinds and quantities of tools of trade (commodities, software, and technology) for use in a lawful enterprise or undertaking of the exporter.  A laptop, PDA, cell phone, data storage devices are generally an exception to the Export Administration Regulations. However, this exception is NOT automatically allowed.

A license is required when the device with controlled research data or encrypted/proprietary software is hand-carried or shipped abroad to a restricted country and/or to a denied person/entity.  Example: A laptop being hand-carried to any country with research data on a genetically modified organism will currently require a license as genetically modified organisms are controlled items for chemical, biological and anti-terrorism reasons and there are no applicable license exceptions. 

When hand-carrying a laptop, PDA, cell phone, data storage devices outside the U.S under the TMP Exception:

  • you MUST retain exclusive control of the equipment at all times
  • you MUST not let the equipment be used by anyone in the foreign country
  • you MUST not intend to keep these items in these countries for longer than one year
  • you MUST verify that no government licenses are required

Regulations

Export controls are regulated by various federal agencies, the export control regulations most relevant to universities are The International Traffic in Arms Regulations (ITAR), The Export Administration Regulations (EAR), and sanction programs under the Office for Foreign Asset Controls (OFAC).        

International Traffic in Arms Regulations (ITAR)

Controls the export of defense articles, defense services, technical data and software that are inherently military.  ITAR is administered Directorate of Defense Trade Controls within the Department of State.

  •   Articles should first be reviewed for ITAR designations; if the article does not appear on the United States Munitions List (USML) then the article should be reviewed for EAR designations.
  •   If an USML article is incorporated into a larger article, then the larger article becomes controlled under ITAR.
  •   ITAR is article based:  NO article on the USML can be exported without a license or exemption.
  •   Arms Embargo:  NO article on the USML may be exported under a license or license exemption to countries proscribed in 22 CFR § 126.1. 
    • Additional restrictions apply to other countries, whenever an export would not otherwise be in furtherance of world peace and the security and foreign policy of the United States – as proscribed further in 22 CFR § 126.1 .
  •   Complete versions of the ITAR and USML are available at: http://pmddtc.state.gov/regulations_laws/itar.html

Authority: 22 CFR §§ 120-130 are promulgated and implemented by the Department of State and regulate defense articles (as defined in §120.6), significant military equipment (as defined in §120.7), major defense equipment (as defined in §120.8), defense services (as defined in §120.9), and technical data and software (as defined in §120.10).

Export” as defined in §120.17:

  1. Sending or taking a defense article out of the United States in any manner, except by mere travel outside of the United States by a person whose personal knowledge includes technical data; or
  2. Transferring registration, control or ownership to a foreign person of any aircraft, vessel, or satellite covered by the U.S. Munitions List, whether in the United States or abroad; or
  3. Disclosing (including oral or visual disclosure) or transferring in the United States any defense article to an embassy, any agency or subdivision of a foreign government (e.g., diplomatic missions); or
  4. Disclosing (including oral or visual disclosure) or transferring technical data to a foreign person, whether in the United States or abroad; or
  5.  Performing a defense service on behalf of, or for the benefit of, a foreign person, whether in the United States or abroad;
  6. A launch vehicle or payload shall not, by reason of the launching of such vehicle, be considered an export for purposes of this subchapter. However, for certain limited purposes (see § 126.1 of this subchapter), the controls of this subchapter may apply to any sale, transfer or proposal to sell or transfer defense articles or defense services.

Regulated items are identified on the United States Munitions List (USML), 22 CFR § 121 in the following categories:

Export Administration Regulations (EAR)

Controls products that have a “dual use” (commercial and military/security) application as well as items that are a commercial application, technology for the development, production, or use of a product, and software.  EAR is administered by the Bureau of Industry and Security within the Department of Commerce.

  •  Items not designated on the USML or the Commodity Control List (CCL) are classified as EAR99 (see below definition of EAR99). 
  •  The CCL is destination based and export or re-export of both ECCN designated items and EAR99 items are controlled based upon the country of destination.
  •  As of October 15, 2013, implementation of the 600 series, which are items that were developed for a military application but also have a commercial application and have been moved from the USML to the CCL.  A product/item should be reviewed for designation under the 600 series before reviewing the rest of the CCL.
  •  Complete versions of the EAR and CCL are available at: http://www.bis.doc.gov/policiesandregulations/index.htm

Authority:  15 CFR Parts 730-774 are promulgated and implemented by the Department of Commerce, Bureau of Industry and Security (BIS), and regulate the export control, the export and re-export of commercial and dual use (commercial and military/security applications) items, including encrypted software, identified on the Commodity Control List (CCL).

Export as defined in 15 CFR 734.2

  • “Export” means an actual shipment or transmission of items subject to the EAR out of the United States, or release of technology or software subject to the EAR to a foreign national in the United States.
  • “Re-export” means an actual shipment or transmission of items subject to the EAR from one foreign country to another foreign country; or release of technology or software subject to the EAR to a foreign national outside of the United States
  • “Deemed Export”:  any release of technology or source code subject to the EAR to a foreign national. Such release is deemed to be an export to the home country or countries of the foreign national.
  • “Deemed Re-export”:  any transfer of a controlled U.S. technology (deemed export) to a third-country national overseas.

*Note:  for purposes of the EAR transfer of technology or source code to a foreign national in the United States is the same as a transfer to the foreign national’s home country.

Regulated items are identified on the Commodity Control List (CCL) 15 CFR 774 Supplement 1 in the following ten broad categories:

  • 0-Nuclear Materials, Facilities and Equipment  and Miscellaneous Items
  • 1-Materials, Chemicals, "Microorganisms," and Toxins
  • 2-Materials Processing
  • 3-Electronics Design, Development, and Production
  • 4-Computers
  • 5 Part I-Telecommunications
  • 5 Part 2-Information Security
  • 6-Sensors and Lasers
  • 7-Navigation and Avionics
  • 8-Marine
  • 9-Propulsion Systems, Space Vehicles and Related Equipment

Within each category, items are arranged by group:

  • A-Equipment, Assemblies, and Components
  • B-Test, Inspection, and Production Equipment
  • C-Materials
  • D-Software
  • E-Technology

“Export Control Classification Number” (ECCN) is the alpha-numeric designation proscribed to a particular item on the CCL according to category and group.    

“EAR99” If an item falls under U.S. Department of Commerce jurisdiction and is not listed on the CCL, it is designated as EAR99. EAR99 items generally consist of low-technology consumer goods and do not require a license in many situations. However, if the proposed export of an EAR99 item is to an embargoed country, to an end-user of concern or in support of a prohibited end-use, you may be required to obtain a license.

Office of Financial Assets Controls (OFAC)

Enforces economic and trade sanctions based on U.S. foreign policy and national security goals against foreign targeted countries or entities, terrorists, international narcotics traffickers and those engaged in activities related to the proliferation of weapons of mass destruction.

  •   Sanction programs and the Specially Designated Nations and Blocked Persons list are subject to change and are updated routinely.  
  •   OFAC sanction programs are available at: http://www.ustreas.gov/offices/enforcement/ofac/programs/
  •   Complete version of OFAC is available at: http://www.access.gpo.gov/nara/cfr/waisidx_03/31cfr500_03.html

Authority: 31 CFR Parts 500-597 are promulgated and implemented by the US Treasury Department and regulate economic trade with foreign countries.  OFAC administers and enforces economic and trade sanctions based on US foreign policy and national security goals against targeted foreign countries and regimes, terrorists, international narcotics traffickers, those engaged in activities related to the proliferation of weapons of mass destruction, and other threats to the national security, foreign policy or economy of the United States[i].

The Trading with the Enemy Act (TEWA), 50 U.S.C. §§ 1-44, which gives the President the power to restrict and oversee all trade between the United States and its enemies during the time of war; and

International Emergency Economic Powers Act (IEEPA), 50 U.S.C. §§ 1701-1706, which allows the President to identify any unusual extraordinary threat that originates outside the United States and to confiscate property and prohibit transactions in response.

Specially Designated Nationals and Blocked Persons List, 15 C.F.R. Part 764, Supplement 3, comprised of individuals and organizations deemed to represent restricted countries or known to be involved in terrorism and narcotics trafficking.  At present, OFAC administers seventeen sanctions programs, including Cuba, Syria, Sudan, Iran, and North Korea, and the Specially Designated Nations and Blocked Persons list. 

Commodity Jurisdiction Requests and Classification of Items/Technology Requests. 

The Office for Research Compliance can assist you with requests to have items determined for jurisdiction and/or classification by the appropriate federal agencies.

Commodity Jurisdiction Requests:

When it is unclear whether an item and/or technology falls under jurisdiction of the US Department of State (ITAR) or the Department of Commerce (EAR), a Commodity Jurisdiction Request can be submitted through the Office of Research Compliance to the Office of Defense Trade Controls.  (See 22 CFR 120.3 and 120.4). 

Classification of Items/Technology Requests:

When it is unclear what an item/technology’s appropriate classification is under the EAR, a Classification Request can be submitted to the Bureau of Industry Standards through the Office of Research Compliance.  If it is unclear whether or not a license is required for a particular transaction, a request for an advisory opinion can be submitted to the Bureau of Industry Standards through the Office of Research Compliance.  

Penalties for Export Control Violations

Export control violations can result in fines, penalties, and imprisonment for both the institution and/or the individual.

International Traffic in Arms Regulations

  • Criminal Penalties (for willful violation):  entity of up to $1,000,000 for each violation; individuals may be subject to a fine of up to $1,000,000 or imprisonment of up to ten years, or both, for each violation.
  • Civil Penalties: entity up to $500,000 for each violation; individuals may be subject to fines of up to $500,000 for each violation.  In addition, suspension or debarment from government contracts; seizure or forfeiture of the item; and/or revocation of export privileges.

Export Administration Regulations

  • Criminal Penalties (for willful violation): may result in the institution paying a fine of up to $1,000,000 or five times the value of the exports (whichever is greater) for each violation; and the individual may be fined up to $250,000 or be imprisoned for up to ten years, or both, for each violation. 
  • Criminal Penalties (for knowing violation): may result in the institution paying a fine of up to the greater of $50,000 or five times the value of the exports for each violation; and the individual may be fined up to the greater of $50,000 or five times the value of the exports or be imprisoned for up to five years, or both, for each violation. 
  • Civil Penalties:  include $12,000 for each violation, except that the fine for violations involving items controlled for national security reasons is up to $120,000 for each violation; suspension or debarment from government contracts; seizure or forfeiture of the item; and/or revocation of export privileges.

Additionally, for each violation, any or all of the following sanctions may be imposed:

  • The denial of export privileges; and/or
  • The exclusion from exporting practice; and/or
  • Loss of federal funds
  • Seizure/Forfeiture of goods.

Office of Financial Assets Controls

International Emergency Economic Powers Act (IEEPA) Penalties

  • Civil penalty:  may result in the institution paying a fine of up to $250,000 per violation or twice the transactional value whichever is greater; and the individual may be fined up to $250,000 per violation or twice the transactional value whichever is greater.
  •  Criminal penalty: may result in the institution paying a fine of up to $1,000,000 per violation; and  the individual may be fined up to $1,000,000 or twenty years incarceration, or both per violation.

 Additionally, for each violation, any or all of the following sanctions may be imposed:

  • The denial of export privileges; and/or
  • The exclusion from exporting practice; and/or
  •  Seizure/Forfeiture of goods.

Trading with the Enemy Act (TWEA) Penalties (Cuba and North Korea)

  • Civil penalty: $65,000 per violation
  • Criminal penalty: $1,000,000 per violation and up to 10 years incarceration

Record Keeping Requirements

The International Traffic in Arms Regulations and the Export Administration Regulations require that records be kept reflecting the export and temporary import of defense articles, defense services, dual-use commodities and related technologies. The records that are required to be maintained depend on the activities and how items are controlled for export. 

Transactions Subject to Recordkeeping Requirements:

Exports of controlled commodities, software or technical data from the United States or by a U.S. person; Re-export or transshipments of controlled products or technical data originally exported from the United States or by a U.S. person; Any other transaction subject to export control, whether the export or re-export actually occurs; Exports, where it appears that a person in another foreign country has an interest in the transaction or that the commodity or technical data will be exported, transshipped, or diverted; Negotiations in connection with an export.

Records Required to be Kept:

Any paperwork detailing:  internal export control assessments, including any documentation regarding the applicability of any licensing exemptions; license determinations; license submissions; and post-license management.

Period of Retention:

  • International Traffic in Arms Regulations
    • Records must be maintained for five (5) years from:
    •  The expiration of the license or other approval to which the documentation relates;
    •  The date the license or other authorization is exhausted or used completely; or
    •  The date the license or other authorization is suspended, revoked, or no longer valid.
  • Export Administration Regulations (§762.6)
    • Records must be retained for five (5) years from the latest of the following times:
    • The date the export from the U.S. occurs;
    • The date of any known re-export, transshipment, or diversion of such item;
    • The date of any termination of the transaction, whether contractual, legal, formally in writing or by any other means; or
    • In the case of records of or pertaining to transactions involving restrictive trade practices or boycotts, the date the regulated person received the boycott-related request.

Accessibility: Records must be kept in a manner in which facilitates the ability to retrieve the records for any purpose and to review the records during internal or U.S. Government audits.

Restricted Parties

Restricted parties are not limited to foreign entities and can include US persons.

Restricted parties are subject to change and are updated routinely.

Restricted party designation is not based upon nationality but instead is based upon previous behavior or action.  

There are over fifty lists issued by governmental agencies that restrict transactions with specific individuals, groups and entities.

Department of Commerce:

  • Denied Persons List is a list of individuals and entities that have been denied export privileges.  Any dealings with a party on this list would violate the terms of its denial order and is prohibited;
  • Entity List is a list of parties whose presence in a transaction can trigger a license requirement under the EAR.  The license requirements are in addition to any license requirements imposed on the transaction by other provisions of the EAR;  
  • “Unverified” List is a list of parties where the Bureau of Industry and Security has been unable to verify the end-user in prior transactions.

Department of State:

  • Debarred List is a list of parties who are barred by 22 CRF §127.7 (ITAR) from participating directly or indirectly in the export of defense articles, including technical data or in the furnishing of defense services for which a license or approval is required by ITAR;
  • Nonproliferation Sanctions is a list of parties that have been sanctioned under various statutes.

Office of Foreign Assets Control:

  • Specially Designated Nations and Blocked Persons is a list of individuals and organizations deemed to represent restricted countries or known to be involved in terrorism and narcotics trafficking.

Shipping Off Campus

Regardless of whether the item is being shipped within the US or abroad, the following should be considered.

What are you shipping?  Where are you shipping? Who are you shipping to? What will the recipient use the items for?

Materials, including biologics and chemicals, being shipped off of campus needs to be reviewed by the Office of Technology Licensing and Industry Relations in consultation with the Department of Environmental Health and Safety and the Office for Research Compliance for possible export control issues, proper handling of the materials, and for the determination of whether or not an agreement is required.

Stony Brook University and Research Foundation equipment, software or technology being shipped off of campus needs to be reviewed by the Office of Research Compliance for possible export control issues and for the determination of whether or not an agreement is required.

International shipments may require that an Electronic Export Information (EEI) be filed with the U.S. Census Bureau.  The EEI is now filed electronically through the Automatic Export System (AES). 

  • The EEI must be prepared regardless of value for all shipments requiring an export license. 
  • Destination statement should appear on any items subject to US control – “These commodities, technology, or software were exported from the United States in accordance with the Export Administration Regulations.  Diversion contrary to US law is prohibited.”
  • The EEI must be prepared for shipments when the shipment through U.S. Postal Service (USPD) is valued over $500.  EEIs are required for shipments not using the USPS when the value of the commodities classified under any single schedule B number is over $2,500.  If no EEI is required the airway bill or other loading document should state “No EEI required - no individual Schedule B number valued over $2,500.”
  • A copy of the EEI documentation should be provided to the Office for Research Compliance or Office of Technology Licensing and Industry Relations, as appropriate. 
  • Intangible exports of technology controlled under Commerce (EAR 99) do not require an EEI.  (15 CFR 30.55(o). 

Frequently Asked Questions

Please note: Federal export control regulations are complex and situational.  This information is general in nature and if you are unsure of your compliance, you should contact the Office of Research Compliance for further guidance.

Why have a campus policy?
The purpose of the campus policy is to inform and educate the University community of their responsibilities to comply with federal export control regulations. 

Why should I be concerned about compliance?
Non-compliance can result in large fines, loss of exporting privileges, and possible prison time for the University, the individual or both.       

What are export controls?
Generally stated, export controls regulate the disclosure, shipment, use, transfer or transmission of anything appearing on the U.S. government's controlled technologies lists, to a foreign person or foreign entity. Additionally, export controls regulate transactions or the provision of services involving prohibited countries, persons or entities based on trade sanctions, embargoes and travel restrictions.

What are the different ways that a person can export under the regulations? 

  • Physical Export: the shipment or transmission of any item that is sent from the U.S. to a foreign destination
  • Deemed Export: the release of technology or software subject to the export regulations to a foreign person in the U.S. Deemed exports can be conveyed through visual inspection, oral exchange, electronic/digital exchange, made available by practice/application (e.g. training).

Aren’t campus activities excluded from export controls?
While most campus activities are excluded from export controls or have a license exception available; these exclusions and exceptions need to be documented and recorded.  Some campus activities, such as: international travel with items or technical data, international shipping, accepting export controlled information or items, sharing information with foreign nationals in the US and internationally, may require a license and/or a technology control plan to ensure compliance with the regulations. 

What types of activities are excluded from export controls?

  • Education: released by instruction in catalog courses and associated teaching laboratories of academic institutions.
  • Fundamental Research: basic and applied research in science and engineering where the resulting information is ordinarily published and shared broadly within the scientific community. 

What are some examples of possible university export control compliance areas?

  • International travel with research equipment or technical data may require a license, depending on the items you are bringing and your destination.  There is a license exception to bring your laptop and cell phone but this exception must be documented.
  • Shipping equipment or materials internationally may require a license depending on the items you are shipping, the destination and the person/entity to whom the shipment is going.
  • Sending technical data (i.e. schematics, blueprints, user manual, etc.) that is export controlled inside or outside of the US may require a license.    
  • Accepting publication restrictions, foreign national restrictions, or entering into a “gentlemen’s agreement” to not publish research results when conducting a funded or unfunded research project invalidates the Fundamental Research Exclusion and the project (and all resulting information) is subject to export controls.
  • Purchasing equipment, materials, biologics, or chemicals that are export controlled require that proper security measures are implemented to ensure proper access and usage under the regulations.  
  • Accepting 3rd party proprietary data.  The proprietary data could be export controlled and require a license to share with a foreign national.

Are there lists of the items that are export controlled?  
The Department of State administers the International Traffic in Arms Regulations which includes the US Munitions List (USML).  The USML contains items and technical data that is inherently military in nature (although it can have a commercial purpose) and also regulates the provision of defense services.  The USML does not contain an index, the USML can be accessed at: https://www.pmddtc.state.gov/regulations_laws/itar.html

The Department of Commerce administers the Export Administration Regulations which includes the Commodity Control List (CCL).  The CCL contains dual-use items and technical data and is a positive list.  The CCL contains an Index, however the index is not an exhaustive list of controlled items.  Both the Commodity Control List and its Index can be accessed at:  http://www.bis.doc.gov/index.php/regulations

Who can assist with determining if items or technical data are controlled?
Vendors should be able to supply the export category classification for their items.

If the item or technology is the result of your research, please contact the Office of Research Compliance as we have software that can assist or a request can be submitted to the appropriate federal agency.

Have there been cases of universities and/or researchers violating the export regulations?
As the University of Pittsburg’s website reminds us (www.research.pitt.edu/exco-export-violations):

On January 18, 2012, John Reece Roth, a former professor of Electrical Engineering at the University of Tennessee (UT) in Knoxville, began serving a four-year prison sentence for his September 2008 convictions. Roth received this sentence for illegally exporting military technology, in large part due to his work with graduate students from Iran and China. Although, Roth claimed he was ignorant of the regulations, the prosecution pointed out that he was warned on a number of occasions, including by university counsel, that the technology may have been controlled. Professor Roth's conviction and prison sentence forcefully remind the research community, as well as academia, of the potentially severe consequences that may arise from ignoring technology export controls.

In May 2013, three researchers at the New York University School of Medicine were charged for sharing with Chinese companies non-public information about their N.Y.U work conducted through a grant from the N.I.H. to develop new M.R.I. technologies.

In March 2013, University of Massachusetts in Lowell (UML) has been sanctioned for two past violations of the Export Administrations Regulations: in 2006 and 2007 UML exported an antennae and an atmospheric testing device as EAR99 to SUPARCO, an organization listed on the Entity List (one of the Restricted Parties Lists).

In 2009, Georgia Institute of Technology allowed Internet Users in 36 countries, including China, and Iran, to view sensitive information that was intended only for federal employees and contractors. This course included 14 PowerPoint slides and was uploaded to Georgia Tech's servers. The State Department stated that it had determined that violations had occurred.

In 2004, Dr. Thomas Campbell Butler, M.D., a professor of Texas Tech University received a 2 year prison sentence for illegally exported the Yersinia pestis (human plague), which is a controlled item under the EAR and cannot be exported without the required export licenses. Dr. T. C. Butler had to resign from Texas Tech and accepted a denial of his export privileges for a period of ten years.

Resources and Additional Information

Read “Don’t Let This Happen to You” http://www.bis.doc.gov/index.php/enforcement

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