The devastating events that occurred on
September 11th, 2001, coupled with this country's continuing war
on terrorism have brought with them heightened attention and
enforcement of federal regulations for conducting
research, most notably export controls, which may affect
collaborations with researchers both inside and outside the
United States.
Although the Research Foundation of State University of New
York at Stony Brook University:
- Is a U.S. institution of higher education which conducts
fundamental research in basic and applied science and
engineering, which is widely and openly published and made
available to the scientific and academic community;
- Does not undertake classified work or research requiring
national security controls;
- Cannot accept any conditions of award which would
restrict any members of the research group, including
faculty, students and staff, from the ability to participate
fully in all of the intellectually significant portions of
the project;
Export controls may still apply to a research project.
What are Export Controls:
Generally stated, 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.
The federal definition of an export is 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.
Regulations:
The regulations are subdivided into three
categories
- International Traffic in Arms
Regulations (administered by the State Department)
- Export Administration Regulations
(administered by the Commerce Department)
- Office of Foreign Asset Control
Regulations (administered by the Treasury Department)
International Traffic in Arms Regulations
(ITAR) control the export and temporary import of ITAR
controlled military items like defense articles and defense
services covered by the U.S. Munitions List (http://pmddtc.state.gov/regulations_laws/itar.html),
inclusive of space and satellite technologies.
Export Administration Regulations
(EAR) control the export and re-export of commercial and dual
use (commercial and military/security applications) items,
including encrypted software, appearing on the Commodities
Control List (CCL) (http://www.bis.doc.gov/policiesandregulations/index.htm).
Additional guidance on encrypted software, including a review
checklist, can be found at: (http://www.bis.doc.gov/encryption/checklistinstr.htm)
Office of Foreign Asset Control
Regulations (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. (www.access.gpo.gov/nara/cfr/waisidx_03/31cfr500_03.html)
- A list of countries subject to
sanctions and/or boycotts can be found at:
http://www.ustreas.gov/offices/enforcement/ofac/programs
Restricted Parties Lists:
There are over fifty lists issued by various
governmental agencies that restrict transactions with specific
individuals, groups and entities. Restricted party designation
is not based upon nationality but instead is based upon previous
behavior or action. The Office of Sponsored Programs
utilizes Visual Compliance to screen individuals against these
lists. Some examples of these lists are:
- Department of Commerce Denied Persons
List; Department of Commerce Entity List; Department of
Commerce “Unverified” List; US Department of Treasury
Specially Designated Nations and Blocked Persons; Department
of State Terrorist Organizations; Department of State
Terrorist Exclusion List; Department of State Arms Export
Control Act Debarred Parties; Department of State
Nonproliferation Orders; Weapons of Mass Destruction Trade
Control Designations.
-
Visual Compliance Restricted Parties Screening List
Compliance:
Any activity involving funding through the Research
Foundation should be reviewed carefully because every export
control issue is situational, especially if the project involves
a foreign component.
The basic questions to ask include:
- What items or technologies are being used?
- Where are any items or technologies going?
- Who will access the research, items or
technologies?
Please note that these questions should be asked for all
facets of research, including but not limited to:
- foreign visitors entering your lab;
- shipping equipment, supplies, biologics or chemicals
both inside and outside the United States;
- sending technical information, via electronic
communications or hard copies, both inside and outside the
United States;
- traveling abroad with electronic devices;
- use of research equipment and/or the access to technical
specifications of research equipment by any foreign
nationals in a campus laboratory.
Tools:
Several tools are available to conduct a
preliminary export control assessment. These tools are
intended to provide guidance and any final determinations should
be made in conjunction with the Office of Sponsored Programs.
Export License / No Export License Decision Tree
Several tools are used by the Office of
Sponsored Programs to conduct an export control assessment.
At the time of proposal application
submission the Project Director’s answers to the
Export Control Questions on the SUSB299 (4-Page Form) are
reviewed in conjunction with the funding announcement and the
scope of work for potential export control issues.
The
License
Assessment Form is used by the Office of Sponsored Programs
to gather additional information that is necessary to properly
review an issue for potential export control issues.
Visual Compliance is a web based program that
assists the Office of Sponsored Programs with properly
identifying an export controlled item, commodity, material,
technical information or software, or encrypted software.
Visual Compliance also assists the Office of Sponsored Programs
with properly identifying any restricted parties.
Violations:
Violations of these rules carry both personal
(Investigator) and Institutional (The Research Foundation and
SUNY) penalties of jail time and monetary fines. The level of
university compliance is being scrutinized closely these days
due to the intersection of cutting edge science, technology and
engineering research with national security, foreign policy and
homeland security in university laboratories.
Exemptions and Exceptions:
Even if the research you are conducting
appears on the list, export may still be permissible if an
exemption or exception is applicable. All exemptions and
exceptions must be adequately documented and kept on file at the
Office of Sponsored Programs or the Office of Grants Management.
One such exemption is the “fundamental
research exemption" which is defined as basic and applied
research in science and engineering conducted at a university
located in the U.S. where the resulting information is
ordinarily published (EAR) or is in the public domain (ITAR) and
shared broadly within the scientific community (this exemption
does not apply to: encrypted software, research conducted
outside the U.S., and the physical item). **
**Please note that for the fundamental
research exemption to be in force, the institution cannot agree
to any publication restrictions on an award. The
fundamental research exemption also does not apply to equipment
use or shipment.
A list of common exemptions and exceptions
are available on the Research Foundation Central Office’s
website at:
https://portal.rfsuny.org/portal/page/portal/The%20Research%20Foundation%20of%20SUNY/home/export_controls/exclusions_and_exceptions
Technology Control Plan:
If an export control issue is identified a
Technology
Control Plan will be developed to ensure compliance with
export control regulations.
International Travel Guidance:
The Department of State issues International
Travel Information (http://travel.state.gov/travel/cis_pa_tw/cis_pa_tw_1168.html)
which includes: travel alerts, travel warnings, country specific
information, required documentation and tips for traveling
abroad.
International Travel with Electronic Communication Devices
provides guidance on how to ensure compliance with export
controls when traveling with electronic communication devices
(i.e. laptop, cell phone, PDA and GPS)
For More Information:
The Research Foundation Central Office has
Export Controls guidance available on their public website at:
https://portal.rfsuny.org/portal/page/portal/The Research
Foundation of SUNY/home/export_controls
You can view an Export Controls primer
entitled
"Export Controls: A Practical Application for Faculty" which
includes case studies.
You can view “Awareness,
Education, and Compliance”
a video recording by Richard A. Johnson an export
controls attorney with the premier Washington, DC law firm
Arnold and Porter.
Should you have any questions concerning this issue please contact Ivar Strand, Assistant Vice President for Sponsored Programs, at 632-4402 or via e-mail at IStrand@notes.cc.sunysb.edu or Susan Gasparo, Contracts and Export Control Administrator, at 632-9029 or via email at Sgasparo@notes.cc.sunysb.edu.



