An export is:
- Any oral, written, electronic or visual disclosure, shipment, transfer or transmission outside the United States to anyone, including a U.S. citizen, of any commodity, technology (information, technical data, or assistance) or software/codes
- Any oral, written, electronic or visual disclosure, transfer or transmission to any person or entity of a controlled commodity, technology or software/codes with an intent to transfer it to a non-U.S. entity or individual, wherever located (even to a foreign student or colleague at WKU)
- Any transfer of these items or information to a foreign embassy or affiliate
Export Control Laws are federal regulations that restrict the transfer of certain materials, technology, related technical data, and certain services outside the United States in the interest of protecting the national security and domestic economy. These laws have been in existence for many years, but recently at the federal level there has been heightened concerns over national security and stricter interpretation and enforcement of export control laws.
Most export control issues fall under the jurisdiction of the Department of Commerce through its Export Administration Regulations (EAR, see 15 CFR 730-774), the Department of State under the International Traffic in Arms Regulations (ITAR, see 22 CFR 120-130), and the Department of Treasury through its Office of Foreign Assets Control (OFAC).
EAR is primarily responsible for controlling the export of dual use technologies. In other words, items that are used, or have the potential to be used, for both military and non-military purposes that could adversely affect national security if exported. ITAR regulates military or defense-related articles, technologies, and services. OFAC controls the transfer of items and services of value to embargoed nations and imposes trade sanctions, and trade and travel embargoes aimed at controlling terrorism, drug trafficking and other illicit activities.
There are several exclusions, but three are particularly relevant to academic research: the Fundamental Research Exclusion, Public Information Exclusion, and Educational Information Exclusion. These exclusions are voided, if researchers make side agreements that contain publication or participation restrictions based on nationality. IT IS CRUCIAL THAT YOU DO NOT ENTER INTO ANY SIDE AGREEMENTS THAT MENTION EXPORT CONTROLS WITHOUT GUIDANCE FROM RESEARCH INTEGRITY AND COMPLIANCE.
Fundamental research (as it pertains to export controls) includes basic or applied research in science or engineering at an accredited institution of higher learning in the U.S. where the information is ordinarily published and shared openly in the scientific community or is about to be published.
EAR and ITAR have different regulations on what is considered published information. For EAR, information is considered published if it has been, is about to be or is ordinarily published. The ITAR requirement is that the information has been published.
Information is considered published when it appears or is generally accessible to the interested public through the following ways:
- Electronic or any other media available for general distribution to any member of the public
Published or ordinarily published material also includes the following:
- Readily literature available at libraries open to the public
- Issued patents
- Releases at an open conference, meeting, seminar or trade show
A conference is considered "open" if all attendees are allowed to take notes and make a person record of the presentations. In all cases, access to the information in question must be free or for a fee that does not exceed the cost to produce and distribute the materials or conduct the conference.
Any research activity may be subject to export controls if it involves the actual export or “deemed” export of any goods, technology, or related technical data that is considered dual use (commercial in nature, but can be used in military applications as well) or inherently military in nature.
Projects in the following areas have a high risk to being subjected to export controls:
- Space sciences
- Computer science
- Biomedical research with lasers
- Research with encrypted software
- Research with controlled chemicals, biological agents, and toxins
In addition, any of the following may subject your research to export control regulations:
- Sponsor restrictions on the participation of foreign nationals
- Sponsor restrictions on the publication or announcement of research results
- Confirmation from the sponsor that export controlled information or technology will be furnished for use in the research
- The physical export of controlled goods or technology is expected
The consequences for noncompliance are very serious for both the university and the researcher.
- Criminal: up to 10 years in prison
- Civil: seizure and forfeiture of articles, revocation of exporting privileges, fines of up to 500K per violation
- Criminal: $50K- $1M or five times value of export, whichever is greater, per violation, up to 10 years in prison
- Civil: loss of export privileges, fines $10k-$120k per violation
Is any of the operating software developed by Microsoft export controlled? I usually take my laptop out of the country. Should I be concerned?
Possibly, Microsoft provides information under their website (http://www.microsoft.com/exportinG/default.htm) listing their different software products that are subjected to export regulations.
You need to inform and educate yourself about export controls. Every dean, department head, PI and research staff member should have a fundamental understanding of the subject to be able to know when to raise questions and alert RIC to a possible export control issue. The information on this website has been developed for that purpose. Also, you are strongly encouraged to attend one of the Export Controls workshops, conducted by RIC.
A license application must be submitted to the Department of Commerce or the Department of State. Contact the RIC Director, Sean Rubino (firstname.lastname@example.org), and he will initiate the request for an export license and provide you with the necessary support to address export control and license concerns. The key is to start the process early. Typically, it normally takes 3-6 months to secure a license to export controlled materials from the U.S. or to transmit them to a non-U.S. citizen or permanent resident within the U.S.
At any time you have a question about export control regulations and how they apply to your research contact the RIC Director, Sean Rubino, at email@example.com or (512) 245-2314.