WHAT NON-RESEARCH INSTITUTIONS NEED TO KNOW ABOUT EXPORT
CONTROLS: IF YOU DON’T THINK YOU NEED THIS, GET IN HERE!
June 26 – 29, 2011
Carol T. Carr
Carol Tracy Carr, University Consulting Services
Palmyra, Virginia
Nelson G. Dong
Dorsey & Whitney LLP
Seattle, Washington
Justin H. Smith
Washington and Lee University
Lexington, Virginia
1. Export Controls… What You Don’t Know Can Hurt You
As counsel for educational institutions, we are often called upon to know about different
areas of law and to advise administrators, faculty and students about many areas of legal
compliance. However, there is one set of laws that that could seriously affect your institution in
terms of civil and even criminal legal exposure, which makes awareness and understanding
acutely important. These are the United States export regulations as well as the export laws of
foreign countries with whom your institutions may be doing business or which may be a
destination of future travel by faculty, staff or students.
It is serious misconception to view such export laws as applying only to institutions that
are heavily involved with research or that are performing research funded by the U.S. agencies
closely involved with national security or defense. Nothing could be further from the truth. To
the contrary, even if your institution performs minimal research, or if the only research taking
place is in non-science or technology disciplines, or if you have relatively few foreign visitors or
students on campus, some of these laws and regulations may apply simply because, among other
things, your institutional personnel use advanced electronics or certain chemical or biological
materials, travel abroad for their educational duties, or may be involved in financial transactions
with certain foreign entities.
Consequently, in this area, an abundance of caution is appropriate and necessary. At a
minimum, it’s important for institution counsel to understand the laws and regulations and how
they apply to your institution. It’s equally important to make certain that your faculty and staff
are aware of these laws and regulations and are provided the information and tools they need to
ensure compliance. The penalties for violations of these laws can be heavy and can be meted out
on both a personal and institutional level, which means that a campus-wide compliance effort is
usually required.
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2. But What Exactly Are U.S. Export Controls?
There are three basic and different sets of U.S. export control laws and regulations:

The Department of the Treasury’s Office of Foreign Assets Control (“OFAC”)
administers a range of embargoes that forbid any business or financial transactions
with selected nations, groups and individuals and, in the case of Cuba, regulates travel
to that nation;

The Department of State’s Directorate of Defense Trade Controls (“DDTC”)
administers the International Traffic in Arms Regulations (“ITAR”), which regulate
the export and temporary import of defense-related technologies and information; and

The Department of Commerce’s Bureau of Industry and Security (“BIS”) administers
the Export Administration Regulations (“EAR”), which regulate the export of a wide
range of “dual use” items that are capable of both civilian and military use.
At their most basic level, the ITAR and EAR export controls are intended to restrict the
dissemination of certain technology and information, with the goal of keeping that technology
and information out of the hands of certain countries or of certain groups or individuals.
Generally, such technology or information is protected under the ITAR or EAR because of its
military or strategic importance to the United States and its allies. Even if an institution is not
directly involved in military research as such, it may nonetheless have activities that could be
touched by the ITAR or the EAR. It’s also crucial to understand that the term “export” is used
broadly under the ITAR and the EAR, including not just physical export of tangible items, but
also disclosures of controlled technology or information to foreign nationals within the United
States or elsewhere (a concept known generically as “deemed exports”).
However, both the ITAR and the EAR specifically protect and exclude a range of
academic activities on U.S. campuses under what is generally termed the “fundamental research
exemption” (or, simply, “the FRE”). If you can help your institutional colleagues to remain
safely within the FRE, compliance with the ITAR and the EAR can be greatly simplified and
need not overly intrude upon their activities and programs. The key to compliance on most U.S.
campuses is to know the boundaries of the FRE and thus to help steer such activities and
programs so they clearly remain within those limits.
The OFAC embargo rules are a separate but related group of U.S. laws that restrict
almost all business or monetary transactions between U.S. persons and certain other countries,
groups or individuals – these controls are not “content specific” as are the ITAR or EAR rules.
As of the date of the NACUA annual meeting in June 2011, the principal nations covered by the
main OFAC embargoes are Cuba, Iran and Sudan, but there are lesser OFAC embargoes on a
number of other countries such as North Korea and Syria. There is also a list of “Specially
Designated Nationals” (“SDNs”) that is constantly being updated by OFAC, barring transactions
with thousands of named groups and individuals around the world.
Finally, most other countries also have their own export control regimes, which
sometimes resemble those applicable in the United States but are nonetheless distinctive. While
the information in this presentation focuses on U.S. export control laws and regulations, you’ll
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also need to be aware of the laws of other countries (particularly when you may be advising
about faculty or student travel to such destinations).
3. Breathe Easy!
Do we have your attention yet? Now here’s the good news: your path to compliance with
U.S. export controls begins with a written policy and a basic understanding of the key concepts
and definitions – and the information on the next few pages will help to get you there. In the
following documents, we have compiled a compact introduction to the U.S. export laws and
regulations and to development of an appropriate institutional compliace program, including:

A compact summary of the OFAC embargoes, the ITAR and the EAR;

Links to the applicable statutes, regulations and case law; as well as to the responsible
federal agencies, and the guidance materials they each provide;

A list of the institutional offices and officers that may find export control issues
lurking in the documents they review or the matters they handle for the institution,
and the type of export concerns they might find arising in their bailiwicks; and

Sample policies and procedures from a full range of institutions, some heavily
involved in research and others less so, but who have created materials on their
website to address the specific needs of their faculty and staff.
4. Your Plan of Action
Your export controls compliance plan should consist of the following steps:
1. Attend this session (great, that’s accomplished already).
2. Understand the basic issues, red flags, and areas of concern (i.e. continue reading
these materials).
3. Develop a policy and procedures for your institution (did we mention we’ve
included a few samples?).
4. Counsel your administration and faculty on the importance of this issue (we’ll
give some tips on this in the session).
5. Set up an exports controls website.1
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The importance of an institutional export controls website cannot be overstated. It is probably
one of the first places that any government agency will go to begin its assessment of whether an
institution has diligently attempted to educate and train its personnel in at least the basics of the
export control laws, the importance of the fundamental research exclusion, and where they
should go for further help in the event an export control matter arises in their work or office. But
your “website” doesn’t need to be overly-complicated; it can consist of just a few basic
documents, most importantly, a specific compliance policy and procedures document.
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6. Know what you don’t know, and whom to call for help.
Now that you’ve got a basic idea of what you may have been missing, peruse the
following materials (which we’ve organized according to the table of contents below) and get
started implementing your export controls compliance plan of action.
5. Table of Contents
Appendix 1: U.S. Export Control Laws: A Quick Reference Guide for University Counsel
General Background………………………………………………………………………6
“U.S Person” versus “Foreign Person”……………………………………………………6
Trade Embargoes………………………………………………………………………….7
“Dual Use” Products or Technologies…………………………………………………….7
“Munitions List” Products and Technical Data…………………………………………...9
“Deemed Exports”……………………………………………………………………….11
Foreign Worker Visa Applications………………………………………………………11
Penalties………………………………………………………………………………….12
Appendix 2: Compliance Materials: Export Controls and Trade Sanctions
Statutes and Regulations…………………………………………………………………13
Responsible Federal Agencies…………………………………………………………...13
Enforcement and Risk Exposure/Sanctions……………………………………………...14
Possible Responsible Campus Units……………………………………………………..17
Sample Policies and Procedures…………………………………………………………21
Additional Resources…………………………………………………………………….21
Appendix 3: FAQs – Technology and Software Subject to the EAR………………………...26
Appendix 4: Sample Materials from Washington and Lee University
Note to Campus…………………………………………………………………………..36
Guidelines………………………………………………………………………………..38
Q and A…………………………………………………………………………………..42
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Appendix 5: NACUANOTE: International Academic Travel and U.S. Export Controls….44
Appendix 6: Export Control Glossary…………………………………………………………51
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