EXPORT CONTROLS
EXPORT CONTROLS
Export Controls are established to implement treaties
and national security laws, generally protect national
security and to combat terrorism
WHAT ARE EXPORT CONTROLS?
U.S. export controls restrict the transfer of
goods and technology to outside the U.S.
when there are potential National Security
or Trade Protection Concerns
WHAT IS AN EXPORT?
• Sending or taking a defense article or restricted technologies out of the U.S
in any manner
• Disclosure or transfer of any defense article or selected technologies to any
foreign government in the U.S
• Disclosure or transfer of covered technical data to a foreign person here or
abroad
• Performing a defense service for the benefit of a foreign person here or
abroad
EXPORT CONTROL REGULATIONS
• The regulations provide:
• Limitations on exports to foreign countries
• Limitations on foreign use and access to restricted technologies
in the U.S
• Covers goods, technology and information
• Excludes patents, artistic or non-technical publications
• Excludes technology in the public domain
HOW DOES THIS IMPACT UNIVERSITIES?
• For the most part University research and scholarship is
considered “fundamental research” and as such is not impacted
by export controls for teaching and research.
• The export of commodities are not covered by the fundamental
research exemption
• Since the penalties for non-compliance are severe, it is
important to recognize important clues to the potential for
export control issues and take appropriate actions
FUNDAMENTAL RESEARCH EXCEPTION
• Fundamental research is basic or applied research in science and
engineering at an accredited institution of higher learning in the U.S. where
the resulting information is ordinarily published and shared broadly in the
scientific community.
• This exception is void if the university:
accepts any restrictions on the publication of information
gives a sponsor the right to approve publications
limits access of foreign nationals
applies these limitations to any sponsor.
CLUES TO DETERMINE IF EXPORT CONTROL
COULD BE AN ISSUE?
• Is your research funded directly or indirectly by a defense related
entity?
• Is your research in a high technology area with a potential dual use
where the alternative use could be defense related?
• Is your research on a restricted technology list?
• Does your research agreement have language that restricts in any
way the distribution of the results or who may participate?
• Are you collaborating with researchers from outside the U.S.?
• Does the research require the transfer of goods outside the U.S.?
PENALTIES FOR EXPORT CONTROL VIOLATIONS
• There are both criminal and civil penalties
• The penalties can be applied to the individual as well as
Binghamton University
• Penalties can be up to one million dollars per violation
• You can be put in prison for years: Currently a University of
Tennessee faculty member is serving four years in federal
prison.
• The federal government can apply sanctions to the entire
university including loss of all federal funding
EXPORT CONTROL REGULATIONS
Export Control Regulations are complicated by the
fact that three different federal agencies are
responsible for different aspects of export .
FEDERAL EXPORT CONTROL AGENCIES
• Department of Commerce: Export Administration Regulations
(EAR)—trade protection
• Department of State: International Traffic in Arms
(ITAR)—national security
• Department of Treasury: Office of Foreign Assets Control
(OFAC)—embargoes and sanctions
EXPORT ADMINISTRATION REGULATIONS (EAR)
•
Regulates the export of restricted commercial items and items that may be seen as “dual
use” because while they may be intended for civilian use they any have military
applications.
•
If your research results in improvements in science and technology, is not yet published,
and is not available internationally these regulations may restrict your ability to export
your work.
•
Restricted items are identified on a Commerce Control List (CCL) The list is over 175
pages and contains technically complex descriptions.
•
Deemed exports are exports of technology that may take place here in the U.S. if that
technology is released to a foreign national:
• By visual inspection
• By transmission orally, by e-mail or by publication
INTERNATIONAL TRAFFIC IN ARMS REGULATIONS (ITAR)
• ITAR controls the export of defense articles covered by a U.S. Munitions List
(UML) which sets out relatively broad categories of items that are of military
importance.
• ITAR has important considerations when dealing with research and the
export of technology and other valuable commodities.
• You may believe that your research has no military applications but through
an evaluation military applications may apply that you may not have
considered.
• Items such as GPS, sensors, software and electronics may easily be
determined to be “dual use”.
OFFICE OF FOREIGN ASSESTS CONTROL (OFAC)
• Administers the Policies of the United States to enforce economic and trade
sanctions
• Transferring anything to the countries identified for sanction is illegal
• Traveling to identified countries may be illegal without a license to do so.
• It is important that anyone considering traveling to identified countries seek
appropriate approvals well in advance of any planned travel.
• Approval can take a long time.
Do I need to be concerned about export controls in this contract?
University Connected Research Foundations
Jilda Diehl Garton
April 26, 2004
1.
2.
Public domain, and
a) No equipment, encrypted
software, listed-controlled
chemicals, bio-agents or
toxins, or other restricted
technologies are involved,
and
b) Information/software is
already published, and
c) There is no contractual
restriction on export, or
Fundamental Research
1.
2.
3.
(note definitions and caveats
associated with this
exemption)
4.
NO
Equipment or encrypted software
is involved, or
Technology is not in the public
domain, and
Technology may be exposed to
foreign nations (even on campus)
or foreign travel is involved, and
a) The equipment, software
or technology is on the
Commerce Control List, or
b) Information or instruction is
provided about software,
technology, or equipment
on the CCL, or
c) The foreign nationals are
from or the travel is to an
embargoed country
The contract has terms e.g. a
publication restriction that affect
the Fundamental Research
Exemption
Probably
(further review is required)
License May Be
Required
1.
2.
3.
4.
Equipment, software, chemical,
bio-agent, or technology is on
the US Munitions List (ITAR), or
Equipment, software, chemical,
bio-agent or technology is
designed or modified for military
use, use in outer space, or there
is reason to know it will be used
for or in weapons of mass
destruction, or
Chemicals, bio-agents or toxins
on the Commerce Control List
are involved, or
The contract contains a
restriction on export or access
by foreign nationals
YES
License Will Be
Required
WHAT SHOULD YOU DO ABOUT EXPORT CONTROLS
• Don’t assume you are OK
• Contact the Associate Vice President for Compliance or the
Sponsored Programs Office
• We can provide advice, do an analysis for you or if needed
assist in requesting a license to export the technology legally .
CONTACTS
Stephen A. Gilje
Associate Vice President for Compliance
Telephone 777-6137 e-mail sgilje@binghamton.edu
Lisa Gilroy
Assistant Vice President for Sponsored Programs
Telephone 777-6136 e-mail lgilroy@bingthamton.edu