Introduction

Certain types of University research may be subject to Federal Government Export Controls (EC) regulations that prohibit unlicensed export of specific information and technologies, require prior approval for foreign nationals to access information, technologies and materials, and participate in research, limit partnering with a foreign company, or prohibit sharing research with persons who are not U.S. citizens.

Export controls may affect many aspects of research because the term “export” covers not only the shipment of information or materials to another country but also the release or disclosure of information or materials to foreign nationals on U.S. soil (“deemed export”). These restrictions are imposed on shipments abroad, as well as potentially access to University research by foreign nationals. Therefore, the term “export” in these regulations has a very expansive meaning.

Export controls are based on:

(a) the nature of the item or activity,

(b) the country involved in the transaction,

(c) the person receiving or ultimately using the item or service, and

(d) the end-use to which the item or service.

U.S. export controls serve the following purposes:

(a) to control any potential military application;

(b) to protect U.S. trade/economic interests;

(c) to control the exposure of controlled technologies, materials and information to foreign nationals and foreign countries; and

(d) to prevent the proliferation of weapons of mass destruction.

Certain federal regulations may require the University to obtain licenses from the U.S. Departments of State, Commerce, or Treasury before allowing foreign nationals to access research involving specific technologies or before sharing research information with persons who are not citizens of the United States or permanent resident aliens.

 

FUNDAMENTAL RESEARCH is basic or applied research in science or engineering where the resulting information is published and shared within the scientific community.

• “Fundamental research” is distinguished from proprietary or other research where the resulting information is restricted either for proprietary reasons or due to specific U.S. government controls governing access and dissemination of the research results.

 

PUBLICLY AVAILABLE or PUBLIC DOMAIN INFORMATION (a.k.a. technology or software) that is “publicly available” or that is in the “public domain” is generally EXCLUDED from U.S. export controls, including deemed export controls. Information resulting from fundamental research is considered to be both publicly available and in the public domain.  The term “publicly available” and “public domain” are not synonymous. “Publicly available” is the term used in the Export Administration Regulations, and “public domain” is the term used in the International Traffic in Arms Regulations.

Information or software that might otherwise be considered technical data covered by the U.S. Munitions List is in the “public domain” if it is published and generally accessible or available to the public through any of the following ways:

• Through sales at newsstands or bookstores;
• Through subscriptions 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 public libraries or libraries 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 (i.e., unlimited distribution) in any form (e.g., not necessarily in published form) after approval by the cognizant U.S. government department or agency; or
• Through fundamental research in science or engineering at accredited institutions of higher learning in the United States where the resulting information is ordinarily published and shared broadly in the scientific community.

 

Procedures

The following procedures have been developed to enable the Administration, Principal Investigators (PIs) and other persons engaged in research at the University to comply with Export Control (EC) regulations promulgated by the US Department of Commerce, through its Export Administration Regulations (EAR), the US Department of State through its International Traffic in Arms Regulations (ITAR) as well the US Treasury Department through its Office of Foreign Assets Control (OFAC).

 

Principal Investigator’s Responsibilities:

1. Principal Investigators (PI) shall cooperate with the Office of Research in determining the applicability of EC regulations to research before starting any projects.  The PI will provide a description of the project, proposed personnel, and whether there is to be involvement of any foreign national or exchange of technologies or information with a foreign country.
2. The PI shall notify the Director of Research Compliance of any changes in the scope or staffing of research projects that could alter initial determinations about the applicability of EC regulations;
3. The PI shall notify the Director of Research Compliance well in advance of sending scientific equipment or information, including GPS equipment and encrypted software, out of the country in order to determine if a license is required;
4. The PI shall send all proposed Nondisclosure Agreements, Material Transfer Agreement, grants or contracts (hereafter referred to as “Agreements”) to the Office of Research and/or the Director of Research Compliance for review and possible modification of any provisions that could eliminate exclusions from EC regulations.
5. The PI shall contact the Director of Research Compliance before engaging in research activities with persons in or from foreign countries that are named on the Embargoed or Sanctioned Country List of the State Department or the Office of Foreign Access Control.  As of December 2008, this includes:

Countries considered restricted entities on the EAR Entity Chart – CHINA, INDIA, ISRAEL, PAKISTAN, RUSSIA.

Office of Foreign Assets Control (OFAC) Embargoed Countries – CUBA, IRAN, SYRIA, NORTH KOREA, MYANMAR (formally Burma) and SUDAN

OFAC Listed Countries and Territories Subject to Sanctions  – LIBERIA, IRAQ, ZIMBABWE, BALKANS, COTE D’IVOIRE (formally Ivory Coast) and PALESTINIAN TERRITORIES*

*US Persons are authorized to engage in activities with the Palestinian Authority  government of Prime Minister Salam Fayyad and President Mahmoud Abbas, including all branches, ministries, offices and agencies (independent or otherwise) thereof. Dealing with other entities or persons covered by the prohibitions remain in effect.

OFAC SPECIALLY DESIGNATED NATIONAL AND BLOCKED PERSON LIST

ITAR Prohibited Countries – AFGHANISTAN, BELARUS, CUBA, IRAN, IRAQ, LIBYA, N. KOREA, SYRIA, VIETNAM, MYANMAR (formally Burma), CHINA, HAITI, LIBERIA, RWANDA, SOMALIA, SUDAN, VENEZUELA, OR DEMOCRATIC REPUBLIC OF THE CONGO (formally Zaire), any UN SECURITY COUNCIL ARMS EMBARGOED COUNTRY (e.g., for certain exports to Rwanda).

Denied Persons List – A list of individuals who are denied export privileges by the Commerce Department

If it is known that a research proposal or any agreements may, or will require shipping scientific
equipment out of the country or transmitting technology or information to foreign persons abroad, the
PI shall submit this information along with the relevant documents to the Director of Research
Compliance.

 

Office of Research:

1. The Director of Research Compliance shall be designated as the lead person for assisting the Institutional Official in implementation of the University’s EC policy.
2. The Director of Research Compliance or designee shall review proposed confidentiality or nondisclosure agreements (CDAs or NDAs), material transfer agreements (MTA), grant agreements  and other contracts for provisions that restrict access to or publication of research and technical data, limit the participation of foreign nationals in the research effort, or otherwise render inapplicable the exclusions and exemptions from the EC regulations.  The results of such review will be recorded on an Export Control Review report signed by the Director of Research Compliance and transmitted to the Institutional Official. (Record of Export Control Review).
3. No export license will be required as a condition of releasing research results or granting foreign nationals access to the research if the project qualifies under the Fundamental Research Exclusion or Public Domain Exemption.
4. If the results of such review indicate that an exemption from the EC regulations may not be available, the Director of Research Compliance will forward the Export Control Review report and supporting documentation to the Office of General Counsel.  The Office of General Counsel will confirm the review of and forward these findings to the Institutional Official for review and action, as appropriate.
5. The Institutional Official will meet with the PI to determine if adjustments can be made to address issues which resulted in the conclusion that the research project falls under the EC regulations.
6. The Director of Research Compliance and  the Office of General Counsel will review revised documents and make the necessary recommendations to the Institutional Official who will make a final determination as to the applicability of EC regulations.
7. The PI will receive written notice of the Institutional Official’s determination and will cooperate with the Office of Research in taking the directed actions, e.g., further modification to the proposed project or seeking a license from the relevant federal agency.    Copies of this determination shall be provided to the PIs department Chair (or center director), dean and the Vice President for Research.  All export control decisions will be documented and kept on file.
8. If an Agreement falls under the terms of the EC regulations, the PI and Director of Research Compliance, with assistance of the Office of General Counsel as needed, will contact the research sponsor to negotiate modification of the provisions that impact the University’s exemption from EC regulations.  If this negotiation does not result in elimination of conditions that negate exclusions/exemptions from the EC regulations, the matter will be referred to the Institutional Official to determine if the University will apply for an export control license, conduct the research under EC restrictions, or abandon the research effort due to the possible burdens or restrictions associated with compliance.
9. The Director of Research Compliance, will conduct an Annual Review and Certification with the assistance of PIs engaged in EC-related research and licenses to determine if any aspect of the project has changed necessitating further action to assure compliance.  If no changes are found, a notice to that effect will be filed with the Institutional Official with a copy to the PI, department Chair (or center director), dean and Institutional Official.

 

Institutional Official:

The Institutional Official is responsible for assuring compliance with the federal EC regulations, and for overseeing the implementation of the standard operating procedures. The Institutional Official for export control regulations is the Vice President for Research.

The Standard Operating Procedure is intended to promote understanding of the regulations to enable compliance by all persons involved in research and related activities within the University’s responsibility.  Questions whether EC regulations apply to specific research should be referred to the Director of Research Compliance.

 

Government Agencies:

State Department (ITAR) licensing requirements and forms are at http://www.pmdtc.org.

Governs defense articles (including technical data) and defense services (predominately military items and information, including satellites and spacecraft).

Commerce Department (EAR) licensing requirements and forms are at http://www.bis.doc.gov.

Governs commodities, software and technology (or information) (primarily civilian); also includes some sanctions, embargoes and restrictions on transfers to certain end-uses and persons, including terrorists.

Treasury (OFAC) licensing requirements are at http://www.ustreas.gov/offices/enforcement/ofac/.

Maintains trade sanctions, embargoes and restrictions on transfers to certain persons, such as terrorists and narcotics traffickers.

 

Penalties for Export Control Violations

The EXPORT ADMINISTRATION REGULATIONS (EAR)

Criminal Sanctions:

“WILLFUL VIOLATIONS”

University – A fine of up to the greater of $1,000,000 or five times the value of the exports for each violation;

Individual – A fine of up to $250,000 or imprisonment for up to ten years, or both, for each violation.

“KNOWING VIOLATIONS”

University – A fine of up to the greater of $50,000 or five times the value of the exports for each violation;

Individual – A fine of up to the greater of $50,000 or five times the value of the exports or imprisonment for up to five years, or both, for each violation.

Civil (Administrative) Sanctions:

The imposition of a fine of up to $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.

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

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

 

The INTERNATIONAL TRAFFIC IN ARMS REGULATIONS (ITAR)

Criminal Sanctions:

University – A fine of up to $1,000,000 for each violation;
Individual – A fine of up to $1,000,000 or up to ten years in prison, or both, for each violation.

Civil Sanctions:

University – A fine of up to $500,000 for each violation;
Individual – A fine of up to $500,000 for each violation.

Additionally, for any violation of the ITAR either or both of the following may be imposed:

- The denial of export privileges; and/or
- Seizure/Forfeiture of goods.

 

The OFFICE OF FOREIGN ASSETS CONTROL (OFAC)

Criminal Sanctions:

University – A fine of up to $1,000,000 for each violation;
Individual – A fine of up to $1,000,000 or up to twenty years in prison, or both, for each violation.

Civil Sanctions:

University – A fine of up to $55,000 for each violation;
Individual – A fine of up to $55,000 for each violation.

Additionally, for any violation of the OFAC regulations, seizure and forfeiture of goods may result.