Export Controls
Export Regulations have been around since 1940, restricting the export of goods and technology out of the country. Overall, these federal laws and regulations operate to restrict the use of and access to controlled information, goods, and technology for reasons of national security or protection of trade. However, in recent years, attention to the compliance with export control regulations has increased because of heightened concerns about homeland security, the proliferation of weapons of mass destruction, terrorism, drug trafficking, and leaks of U.S. technology to economic competitors.
Noncompliance
Failure to comply with these laws can have serious consequences, both for the institution and for the individual researcher. Potential penalties include fines and imprisonment. It is thus critical for UH researchers to understand their obligations under these regulations and to work with the Office for Contracts and Grants to ensure that the university is in compliance with these laws.
What is an export?
Export control laws are federal regulations that regulate the transfer of controlled information outside the United States or to foreign persons in the United States. The term “export” can mean not only technology leaving the shores of the United States (including transfer to a U.S. citizen abroad whether or not it is pursuant to a research agreement with the U.S. government), but also transmitting the technology to an individual other than a U.S. citizen or permanent resident within the United States. Even a discussion with a foreign researcher or student in a campus laboratory is considered a "deemed export." Export controls preclude the participation of all foreign nationals in research that involves covered technology without first obtaining a license from the appropriate government agency.
Regulations
There are three main sets of export control regulations: (1) The Export Administration Regulations (EAR) (also known as the Commerce Control List) as administered by the U.S. Department of Commerce, Bureau of Industry and Security (BIS), (2) the International Traffic in Arms Regulations (ITAR)(also known as the U.S. Munitions List) as administered by the U.S. Department of State, Directorate of Defense Trade Controls (DDTC), and (3) U.S. trade embargoes, sanctions, and other restrictions as administered by the U.S. Department of the Treasury through the Office of Foreign Asset Control (OFAC).
These regulations cover virtually all fields of science, engineering and technology. However, they prohibit the unlicensed export of only certain materials or information for reasons of national security or protection of trade. See 15 CFR 774, Supplement 1 (EAR) and 22 CFR 121.1 (ITAR). Most exports do not require government licenses. Only exports that the U.S. government considers “license controlled” under the EAR and ITAR require licenses. Export controlled transfers usually arise for at least one of the following reasons:
- The nature of the export has actual or potential military applications or economic protection issues,
- Government concerns about the destination country, organization, or individual, and
- Government concerns about the declared or suspected end use or the end user of the export.
When an item is controlled, a license may be required before the technology can be exported. This requirement relates not only to tangible items (prototypes or software) but also to the research results themselves. There are certain countries where it is the policy of the United States to deny licenses for the transfer of these items.
Exclusions
There are three exclusions that are available with respect to academic research: the education exclusion, public domain exclusion and the fundamental research exclusion. Even if an item appears on one of the lists of controlled technologies, there may be an exclusion for fundamental research if the results of the research are publicly available, are about to be publicly available, or in some cases, ordinarily are publicly available.
Most UH research activities are excluded from export controls because of the fundamental research exclusion. Fundamental research is defined as basic and applied research in science and engineering conducted at an institution of higher learning in the United States where the resulting information is ordinarily published and shared broadly within the scientific community, as distinguished from research the results of which are restricted for proprietary reasons or specific U.S. Government access and dissemination controls. Information which is publicly available also is not within the purview of the export control regulations.
Alternatively, when these exclusions do not apply and one needs to export a research item, it is important to plan accordingly and begin the process of obtaining an export license from either the BIS or the DDTC (as applicable), since the process of obtaining an export license from the government can be lengthy. To guarantee the application of these exclusions, researchers should always strive to publish their findings to the fullest extent possible and should not agree to confidentiality clauses or other terms that restrict the dissemination of research materials and results.
Export Controls and Travel
When traveling abroad, UH travelers should complete the Export Control and Travel Embargo Form (DOC) to help determine whether items being taken out of the country are "licensed controlled" as determined by Export Administration Regulations (EAR) and International Traffic in Arms Regulations (ITAR). The Office of Foreign Assets Control (OFAC) also may prohibit travel to embargoed countries even when exclusions to EAR and ITAR apply. For example, travel to Cuba is generally restricted because of the U.S embargo on trade with Cuba. Review this webpage to learn more about this restriction and the requirement for such travel.
Non-compliance with federal laws and regulations may result in criminal or civil penalties, loss of export privileges and negative publicity. Export controlled transfers usually arise for one or more of the following reasons:
- The nature of the export has actual or potential military applications or economic protection issues,
- Government concerns about the destination country, organization, or individual, and
- Government concerns about the declared or suspected end use or the end user of the export. You must ensure that any information that you will discuss or any items that you will take with you are either not controlled, or, if controlled, proper licenses are in place prior to leaving the country.
Summary
Export laws control the export of commodities, software or technology in a way that may have a substantial impact on research at UH. These federal regulations control how the regulated items can be transmitted overseas to anyone, including U.S. citizens, or to a foreign national on U.S. soil. The FAQ on export controls may help clarify some of the requirements.