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Export Control Regulations

1. What are export controls?

”Export controls” are United States (U.S.) laws and regulations that limit the export of certain materials, devices and technical information or software related to such materials and devices to foreign countries and to foreign persons, whether those foreign persons are inside or outside the United States. There are three sets of laws of particular concern to the University in regard to its research and educational activities:

  • U.S. embargoes are enforced by the Office of Foreign Assets Control (OFAC) within the U.S. Treasury Department. These embargoes limit shipments to, and interaction with, certain embargoed countries (e.g., Cuba, Iran, North Korea, Sudan and Syria, although this list is not exclusive) or persons called “Specially Designated Nationals” (SDNs).   These regulations are aimed principally at limiting trading, financial or other business activities with the embargoed countries or SDNs. However, OFAC has specifically exempted “information and informational materials” from these embargoes, and thus a wide range of typical academic publishing activities and materials can still be undertaken with academic co-authors or collaborators located in any of the OFAC embargoed countries. The URL for OFAC’s website is: http://www.treas.gov/offices/enforcement/ofac/index.html.
  • The International Traffic in Arms Regulations (ITAR) are enforced by the Directorate of Defense Trade Controls (DDTC) within the U.S. State Department. The ITAR control military and defense-related materials, devices and technical information and software, which are listed on the U.S. Munitions List (USML). The URL for DDTC’s website is: http://www.pmddtc.state.gov/.
  • The Export Administration Regulations (EAR) are enforced by the Bureau of Industry and Security within the U.S. Commerce Department. The EAR control a wide variety of “dual use” materials, devices, technical information and software, that is, items intended for civilian applications but capable of being used for military or strategic applications, which are listed on the Commerce Control List (CCL). The URLs for the CCL and for BIS’s website are, respectively, http://www.access.gpo.gov/bis/ear/pdf/738.pdf and http://www.bis.doc.gov/licensing/exportingbasics.htm.
2. What is an export under these laws?

Under these U.S. export control regulations, there are basically two ways to make an “export.”

  • The first and more obvious way is to take or send – e.g., mail, ship, transmit, carry, etc. -- materials, devices and technical information or software related to such materials and devices outside the United States. For example, if an investigator takes along a complex measuring instrument on a field research trip to Country X, that would constitute an “export” of that instrument to Country X. Similarly, if an investigator shipped an advanced computer and related software to a research colleague in Country Y, that would constitute an “export” of that computer and software to Country Y. Sending a file of software or technical data to a recipient in Country Z over the Internet would be an “export” of such materials to Country Z.
  • The second and less obvious means involves intangible items such as technical data or software and is called a “deemed export.” This involves allowing access to such materials by an individual who is not a U.S. citizen or a permanent resident alien (so-called “green card” holder). The access could occur either physically within the United States or overseas, including any “technical assistance” of such a non-U.S. person in the use of technologies that are subject to export control. For example, revealing the source code of controlled software to a person who is a national of Country A while she is in Seattle would, for purposes of these laws, constitute a “deemed export” of that software to Country A.

3. How do I know if such U.S. export controls apply to research or other educational activities under a grant or contract at the University?

As a general rule, most on-campus research or educational activities at the University will not raise any export control compliance issues. In varying ways, each of the three sets of U.S. export control laws discussed above provides some form of exemption for academic teaching, research and publishing done within the United States, including interactions while on-campus with faculty, staff or students who are nationals of other countries. See Question 4 below about the “fundamental research” exception.

However, if the research or other educational activity might involve an “export” to another country (see Question 2 above) of materials, devices, technical information or software that might be subject to controls under the ITAR or the EAR (see Question 1 above), then the investigator should determine if there would be export control compliance issues associated with such an export. The investigator must also consider any potential “deemed exports” in addition to physical exports of items proposed as part of the research or other educational activity.

  • In terms of the OFAC embargoes, there is an exemption for exports or imports of “information and informational materials,” which would cover a wide range of journal-related activities such as reviewing or commenting on manuscripts of scholarly articles, co-authoring such manuscripts and publishing such materials. In most instances, academic travel to and from embargoed countries (e.g., for academic conferences or meetings) is also allowed, although, in the case of Cuba, such travel is subject to OFAC travel licenses that must be sought in advance of travel to Cuba.
  • As a general rule, the ITAR restrictions would apply only if the subject of the research or other educational activity creating an export situation appears on the U.S. Munitions List (USML). If the technology in question is on the USML, export of such a USML-controlled item to any foreign country or any foreign national would be subject to ITAR restrictions and require an export license or other approval from the DDTC.
  • As a general rule, the EAR restrictions would apply only if the subject of the research or other educational activity creating an export situation involves an EAR-controlled technology and an EAR-controlled destination. In most cases, the controlled technologies on the CCL of the EAR are very precisely defined, and the EAR-controlled destinations are also set forth in a Country Chart within the EAR. The exact EAR export control situation is a function of both these factors taken together.

4. What is the "fundamental research" exception?

Both the ITAR and the EAR include language that exempts “fundamental research” from export controls that might otherwise be applicable to normal academic research or teaching activities at the University.

For example, although the ITAR restrict the flow of technical data involving USML-controlled items, those regulations also stipulate in Sec 120.10 that the “definition [of technical data] does not include information concerning general scientific, mathematical or engineering principles commonly taught in schools, colleges and universities or information in the public domain as defined in Sec. 120.11.” Section 120.11 then defines information “in the public domain” to include fundamental research, which “is defined to mean basic and applied research in science and engineering where the resulting information is ordinarily published and shared broadly within the scientific community.”

But, per Section 120.11, Subsections 7(i) and 7(ii), research within the University is no longer considered exempt “fundamental research” if (a) the University accepts any material restrictions on the publication or dissemination of scientific or technical data from the research (aside from a normal time-limited prior review of a proposed publication to assure proper patent protection for any disclosures made in the publication), or (b) the University’s research is funded by a U.S. Government agency that requires access or dissemination controls to non-U.S. persons as a condition of the contract or grant.

Additionally, University investigators should recall that the “fundamental research” exception is extracted from the ITAR provisions that exempt instructional materials used in typical classroom instruction or information that is otherwise in the public domain. Accordingly, the “fundamental research” exception applies only to data or information. This exception cannot be used to cover the export of ITAR-controlled equipment or other tangible materials to other countries.

There are also roughly analogous “fundamental research” rules within the EAR where controlled “dual use” technical data or information might otherwise be subject to export controls under the EAR. Similarly, the EAR exclusion does not extend to EAR-controlled equipment or other tangible materials to other countries.

It is therefore crucial that investigators and the University be cognizant of any restrictions or conditions under any proposed grant or contract that would disqualify research under the “fundamental research” exception.  

5. What are the legal consequences for violation of applicable export control laws and regulations?

Violation of U.S. export control laws can lead to both civil and criminal consequences. The civil or criminal penalties will vary depending on the circumstances (notably, whether it was a “knowing” or “willful” violation), but the penalties can include stiff fines and (in criminal cases) even imprisonment. Moreover, an investigator or organization that violates such laws may face loss of or debarment from further federal funding of research. Finally, a University faculty or staff member or student who knowingly or willfully violates such laws may also face internal disciplinary consequences.

For all these reasons, it is vital that all members of the University community work together to assure proper respect for and compliance with these export control laws if they are applicable to University research or educational activities.

More Export Control Information:

COGR Brochure on Export Control (pdf)