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Office of Research and Sponsored Programs

U.S. Export Control Laws

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What is an “export”?

Exports: The shipment or transfer of items, information or software outside the U.S. or; the release or sharing of restricted technology or data – orally or in writing – with foreign nationals inside or outside the U.S.

• Items – Tangible things, equipment or hardware• Information = “Technical Data” such as models, formulae,

engineering designs, or; technical assistance such as training or instruction.

• Software – Computer programs or microprograms in either “Source Code” (programming statements) or “Object Code” (machine-readable instructions).

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Tangible vs. “Deemed Exports”

An “export” is a tangible shipment of an item, information or software outside of the U.S.

A “deemed export” is a "release” of information or software code to a foreign person in the U.S.

• Transmitting the technology to a foreign national, an individual other than a U.S. citizen or permanent resident, within the United States.

• Foreign national – a person residing in the U.S. who is not a lawful permanent resident.

• Also includes any foreign corporation, business association, partnership, trust, society, or any other group not incorporated to do business in the U.S., and any international organization, foreign government, or diplomatic entity.

• Can be oral or written disclosure, or through visual inspection

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More on “Deemed Exports”

For an immigrant alien who possesses a green card for permanent residence in the U.S.: For the purposes of export control regulations, such an individual is a “U.S.” person and can be allowed access to export controlled information without an export license.

For a UT employee who is an immigrant alien who does not posses a green card for permanent residence in the U.S.: Only ITAR provides a limited exemption to disclose technical data at MSU to full- time foreign employees under specific conditions.

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What are Export Controls?

Export controls are federal laws that regulate the export of sensitive technologies, equipment, software, biological agents, and related data and services to anyone, including U.S. citizens, or to foreign nationals or representatives of a foreign entity on U.S. soil for reasons of national security and protection of trade.

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Export Control Objectives

Deny our adversaries the means to advance their military potential Implement foreign policy objectives Prevent Terrorism Inhibit the proliferation of Weapons of Mass Destruction Fulfill Multilateral Obligations (UN sanctions, various trade agreements).

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Why are These Laws Important?

Violations of trade sanctions and export controls

can result in criminal penalties:

Heavy Institutional Fines(up to $1 M per violation)

Individual Prison Terms(up to 20 years per violation)

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Enforcement of Control Laws

Department of Commerce – Export Administration Regulations (EAR)

Department of State – International Traffic in Arms Regulations (ITAR)

Department of Treasury, Office of Foreign Assets Control (OFAC) – Restricts exports and imports through economic sanctions against certain countries

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Export Administration Regulations (EAR)

Enforced by Bureau of Industry & Security (BIS) Governs export and re-export of all U.S. origin

items, information and/or software Covers “dual use” items, information and software

designed for commercial purposes but having

military applications Exports organized into 10 discrete categories on

Commodity Control List (CCL) Captures many common areas of university research

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Commodity Control List

Ten Specific Categories:

Nuclear materials, facilities, equipment research Chemicals and toxins Materials processing, i.e., making plastics, metals Electronics development Computer development and programs Telecommunications Information security (encryption) Sensors and lasers Navigation and avionics Propulsion systems and space vehicles EAR99 – catch-all (subject to EAR, but not CCL listed)

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EAR Licensing Continuum

Not on CCL/EAR 99 - No License Required Except to Embargoed

Countries

On CCL/No License Required

to Country of Export

On CCL – License Required

to Country of Export, but

License Exception Available

On CCL – No License Exception Available -

License Required

Less RestrictiveMore Restrictive

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International Traffic in Arms Regulations

(ITAR) enforced by State Department’s Directorate of Defense Trade Controls (DDTC) Transfer and export of technologies relating to military applications (including satellite technologies) listed on the U.S. Munitions List. Examples:

• Electronic equipment, systems, or software • Technical data related to manufacture or production • Classified information security systems

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22 CFR 121: Munitions• Firearms• Artillery projections• Ammunition• Launch vehicles, guided

missiles, ballistic missiles, rockets, torpedoes, bombs & mines

• Explosives, propellants & incendiary agents

• Vessels of war & special naval equipment

• Tanks & military vehicles• Aircraft & assoc. equipment• Military training equipment• Protective personnel

equipment

• Military electronics***• Fire control, range finder,

optical & guidance & control equipment

• Auxiliary military equipment***• Toxicological agents & equip.

& radiological equip.• Spacecraft systems &

equipment***• Nuclear weapons design & test

equipment• Submersible vessels,

oceanographic & associated equipment

• Misc. articles***

***Significant items of interest to research institutions

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Prohibited CountriesFrom 22 CFR 126.1:“It is the policy of the United States to deny licenses, other approvals, exports and imports of defense articles and defense services, destined for or originating in certain countries.”

Applicable Countries

Afghanistan Liberia Armenia North KoreaAzerbaijan SyriaBelarus TajikistanCuba UkraineIran VietnamIraq

Arms Embargoed Countries

BurmaChina

Fed. Rep. of Yugoslavia Haiti

LiberiaRwandaSomaliaSudanZaire

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Office of Foreign Assets Control

OFAC enforced by the Treasury Department’s Office of

Foreign Assets Control (OFAC)

Places economic sanctions and/or transfer of payments,

property, or anything of value to:• Sanctioned or Embargoed countries• “Specially Designated Nationals (SDNs) – terrorists,

drug kingpins, and persons involved with WMDs

(includes organizations to which SDNs belong)

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OFAC Countries

Subject to U.S. Trade Embargoes

BurmaCubaIran

SyriaNorth Korea

Sudan

Sanctioned Countries and Territories

BalkansCote D’Ivoire

IraqLiberiaLibya

Palestinian AuthorityZimbabwe

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OFAC Prohibited Activities

• Shipment of tangible items in support of research with

knowledge that items will be used in or for the benefit of

the embargoed country• Payments to persons including organizations to conduct

or

support in-country research (i.e. surveys, interviews,

fellowships, etc.)• Providing financial or material support to conferences

hosted or co-hosted by academic institutions in

embargoed countries

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Applicability

These laws apply to all research activities whether or not there is a specific citation to the regulations in the grant or contract award document governing the project.

These laws also apply to export-controlled information or technology shared with researchers by others from government, industry, or other universities.

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Applicability

The majority of university research efforts are not restricted by export regulations. However, export control may apply when one or more of the following concerns pertain to the research project:

• It has actual or potential military applications• The destination country, organization, or individual

is restricted by federal law• The declared or suspected end use or the end

user of the export compromises national security• Economic protection issues are associated with

the destination country

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Export Control Exclusions

This is how researchers and research institutions can:

• Exempt certain information and software from export licensing requirements

• Stay out of jail!

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Export Control Exclusions

• Public Domain Exclusion (ITAR)• Publicly Available Exclusion (EAR)• Educational Information Exclusion • Employment Exclusion (ITAR)• Fundamental Research Exclusion

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Public Domain Exclusion (ITAR)

Export controls do not apply to information and research results already published and publicly available from:

• Public libraries, newsstands or bookstores;• Unrestricted journal and magazine subscriptions• Published patents • Conferences, meetings, seminars, trade shows or

exhibitions in the U.S.; and/or• Websites accessible to all members of the public,

free of charge.

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Publicly Available Exclusion (EAR)

CCL listed information and software that is generally accessible to the public in any form through any one or more of the following:• Publication in periodicals, books, electronic, or any

other media• Public and university libraries;• Published patents and applications; and• Conferences, meetings, seminars, trade shows or

exhibitions in the US or abroad

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Educational Information Exclusion

ITAR – Export Controls do not apply to information concerning “general scientific, mathematical or engineering principles commonly taught in schools, colleges and universities.”

EAR – Export Controls do not apply to “educational information” released by instruction in catalog courses and associated teaching laboratories.

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Employment Exclusion (ITAR)

Export license not required for universities to share information in the U.S. with a foreign person if that person: Is a “bona fide” employee of the university – full time with

full benefits• Grad students and most post-docs are excluded

Not a national from an ITAR embargoed country• Belarus, Cuba, Iran, Libya, North Korea, Syria,

Vietnam, Burma, China, Haiti, Liberia, Somalia, Sudan, Iraq, Afghanistan, Rwanda, and Democratic Republic of the Congo

Resides at a permanent address in the U.S. while employed

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Fundamental Research Exclusion

It is federal policy “that, to the maximum extent possible, the products of fundamental research remain unrestricted.” Definition (National Security Decision Directive 189) –

“Basic or applied research in science and engineering, the results of which ordinarily are published and shared broadly within the scientific community.”

Covers most basic research at colleges and universities Information must have been generated in the U.S.

(foreign generated info may qualify under other public domain criteria)

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Fundamental Research Exclusion

Fundamental Research Exclusion does not apply if:University accepts any restrictions on the publication of resulting information, other than 90 day review by sponsors to: Prevent divulging proprietary information Insurance against compromising a patent

Fundamental Exclusion destroyed by any clause that: Gives sponsor right to approve publications Restricts research participation of foreign nationals Exclusion is destroyed irregardless of sponsorship

(federal, private, or non-profit)

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University of Toledo

As a public university, the University of Toledo is committed to the widest possiblepublic dissemination of scientific learning and research results.

Therefore, all information and data to be created or used at UT must fall under the definition of fundamental research as set forth in NSDD 189.

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Concerns for Researchers

Does the contract or grant: Restrict publication or presentation of research results? Prohibit training or collaboration with foreign nationals

on any aspect of the research project? Prohibit results or deliverables from being disclosed or

delivered to any country or persons? Contain any reference to export controlled technologies

Will the project require any tangible export of materials to a foreign country of concern?

Research samples, shared equipment, software, publication drafts, travel, other transactions

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Third-party items, information or software to which information exchange, publication freedom or foreign national access is restricted

Any Item, information or software that is: Designed or modified for a military use For use in outer space Potentially used in/for a weapon of mass destruction

(nuclear, chemical, biological, missiles) included on any other export control list

More Concerns for Researchers

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What Needs to be Done? Beware of existing export control laws and regulations.

Screen proposals and contracts for any possibility of application to these laws

• Shipment of equipment to a foreign country• Training or collaboration with foreign nationals• Any work or travel to an OFAC controlled country• Any reference to export controlled technologies in the award

Negotiate removal of all contract terms that limit: • Rights to publish or present results• Access or participation of foreign nationals

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Export Control Contacts at UT

Kandace Williams, Ph.D.Research Compliance Officer

Office of Research University Hall – Room 2300(419) 530-2844(419) 530-2841(fax)Kandace. Williams@utoledo.edu

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Test Case Study #1

Your Principal Investigator (PI) is doing research in the field of remote sensing. Your institution receives a research contract from the Department of Defense (DOD) as well as a subcontract from another university in support of this work. Both agreements incorporate the following clause:

The Contractor shall not release to anyone outside the Contractor’s organization any unclassified information, regardless of medium (e.g., film, tape document), pertaining to any part of this contract or any program related to this contract, unless…..

Answer

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Test Case Study #1 The research to be performed falls under ITAR Category XV. The project does not involve providing a defense service, because it is a fundamental research project.

This clause could restrict publications. If the restrictive publication clause is not modified, a license from the State Department would be required to publish the technical data, unless specifically approved by the DOD.

The clause does not comply with various federal policies which state that papers or other publications resulting from unclassified contracted fundamental research are exempt from any prepublication controls.

This clause cannot be accepted.

The clause must be modified to protect the university’s and researcher’s right to freely publish any and all information pertaining to the project.