Export Controls

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)

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

ITAR Decision Tree

EAR Decision Tree

Commonly Used Acronyms

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.