- What are export controls?
- What laws regulate export controls?
- What are ways to make an export?
- How do export controls apply to grant/contract?
- What happens if a project is subject to export controls?
- What is the “fundamental research exclusion”?What happens if one pursues a project without first obtaining an export license?
- What happens if a project can’t be conducted under the fundamental research exception?
- Do export controls only apply to sponsored research?
- What can happen if I fail to comply with the export control laws?
Export controls are federal laws that restrict the flow of certain materials, devices and technical information related to such materials and devices to foreign countries and to foreign nationals residing in the US.
Currently they are implemented by the US Department of Commerce through the Export Administration Regulations (EAR – trade protections), the US Department of State through the International Traffic in Arms Regulations (ITAR – national security) and the US Department of Treasury though the Office of Foreign Assets Control (OFAC – trade embargoes).
What laws regulate export controls?
There are three sets of laws of particular concern:
- The International Traffic in Arms Regulations (ITAR). ITAR controls defense related technologies and dual use technologies. You can find a list of technologies controlled by ITAR at http://www.pmddtc.state.gov/regulations_laws/itar.html
- The Export Administration Regulations (EAR). The EAR regulations are designed to protect US commercial interests, and govern a broad range of technologies. The categories covered by the Commerce Control List can be found at http://www.access.gpo.gov/bis/ear/ear_data.html
- US embargoes managed by the Office of Foreign Assets Control (OFAC). These embargoes limit shipments to, and interaction with, certain embargoed countries (e.g., Cuba , Iran , Libya , North Korea , Sudan and Syria). Note: Export laws may apply to research whether sponsored or not.
What are ways to make an export?
Under the export control regulations, there are two ways to make an export. The first and most obvious is to transport – mail, send, transmit, carry, etc. -- equipment, information, technology, data, software, or other materials to somewhere outside of the United States. The second is to allow access to such materials by an individual who is physically in the United States , but who is neither a US citizen nor in the US under a valid green card (foreign nationals). This is referred to as a “deemed export.” Moreover, it is important to note that deemed exports can also include so-called “technical assistance” – i.e., training a foreigner in the use of technologies that are subject to export control.
How do export controls apply to a grant/contract?
It depends on both the technologies (i.e., the work scope) and the countries (either foreign destinations or foreign personnel) involved. ITAR applies if the subject of the research appears on the ITAR munitions list. And under ITAR, the country of destination is irrelevant; export of a controlled item to any foreign country or any foreign national would be in violation of the law. The application of EAR is more complicated. It depends on both the technology involved and the country of destination. So, for example, you might have a technology that can be exported to Canada but not Venezuela. And in most cases, technologies are very precisely defined, and the definitions also affect the applicability of the law. So, for example, telecommunications equipment involving lasers that transmit at wavelengths above 1750 nm may be controlled, while similar equipment using a smaller wavelength isn’t. OFAC applies to any interaction with a country prohibited by US embargo. Although the export control regulations cover virtually all fields of science and engineering, universities and colleges do not need to obtain a license to transfer scientific, technical, or engineering information to their foreign national students and faculty members if the information is in the public domain. Information is in the public domain if it is published and generally accessible to the public through unlimited and unrestricted distribution.
What happens if a project is subject to export controls?
There are a number of things that may happen if your project is subject to one or more Export Controls. First, the Office of Research and Sponsored Projects Administration (ORSPA) will attempt to craft an award document that will allow the work to be performed at ASU to remain within the parameters of the “fundamental research exception.” The fundamental research exclusion is discussed in detail below. If the project cannot remain within the fundamental research exclusion, it will be necessary to secure an export control license from the appropriate government agency before proceeding with the work. The licensing process is also discussed below. If the fundamental research exclusion does not apply, and a license cannot be secured, the project will either need to be revised to bring it under the fundamental research exception or secure the license, or abandoned.
What is the "fundamental research exclusion"?
Both ITAR and EAR include language that excludes “fundamental research” from export control. Using ITAR as an example, while the regulations restrict the flow of technical data they also stipulate (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), our work is no longer considered “fundamental research” if
- we accept restrictions on the publication or dissemination of scientific or technical data,
- the work is funded by the US Government and access or dissemination controls are applied by the sponsor.
Additionally, recall that the fundamental research exclusion is extracted from the provisions that exclude from “technical data” information that is in the public domain. Accordingly, the fundamental research exception applies only to data/information. The transport of equipment and other materials can’t be excluded under the fundamental research exclusion. However, as long as all three of the following criteria can be met our work falls within the fundamental research exception and we don’t have to be concerned about export controls.
- We aren’t exporting the actual technologies,
- we can freely present/publish the research, and
- in the case of federally funded work, there are no access restrictions. You may need an export license. Contact firstname.lastname@example.org or Debra Murphy at (480) 965-2179 for assistance.
What happens if one pursues a project without first obtaining an export license?
Violation of export control laws is a criminal matter. The penalties vary depending on the circumstances (notably, whether it was a “knowing” or “willful” violation), but the penalties for lesser violations include up to five years in jail and/or fines equal to $50,000 or five times the value of the export, whichever is higher. More severe violations can double the jail time and quadruple the fines. It is also important to emphasize that export control violations can be assigned to the individual. If you conduct a project that violates the export control laws without first getting an export license, there’s a very good chance that you, as an individual, could face fines and jail time.
What happens if a project can’t be conducted under the fundamental research exception?
An export license may be required. Contact email@example.com for assistance.
Do export controls only apply to sponsored research?
No. Export controls are U.S. laws that apply to all research and activities conducted at ASU whether funded or not. Export controls may cross all academic fields including but not limited to engineering, psychology, biology, chemistry, decision sciences and education to name a few.
What can happen if I fail to comply with the export control laws?
Penalties for violating U.S. export control laws (EAR, ITAR) or trade sanctions (OFAC) can be severe. The penalty for unlawful exports of items or information controlled under the ITAR is up to two years imprisonment or a fine of $100,000, or both. The penalty for unlawful esport of items or information controlled under the EAR is a fine of up to $1,000,000 or five times the value of the exports, whichever is greater; or, for an individual, imprisonment of up to ten years or a fine of up to $250,000 or both.