- Export Administration Regulations (EAR); U.S. Department of Commerce
- International Traffic in Arms Regulations (ITAR); U.S. Department of State
- Office of Foreign Asset Controls (OFAC) Department of Treasury Regulations
Export Control Regulations have been changed recently to move some technologies from the US Munitions List (USML), which is controlled by ITAR, into the Commerce Control List (CCL), which is under the EAR. How does this affect my research at USU?
USU has commonly relied on the USU Research Foundation’s knowledge and skill sets to carry out ITAR related research. Some technologies previously covered in the ITAR are now regulated under the EAR. This applies especially to satellite and space technologies. USU will continue to coordinate with USURF, and may rely on USURF to support export controlled projects in the future, on a case by case basis. However, USU may choose to carry out export controlled projects on USU campuses when appropriate. In general, the more easily a project can be conducted within the parameters that meet the Fundamental Research Exclusion, the more likely it could be conducted at USU’s campus.
USU researchers should focus on the similarities between the two regulator structures. Under both sets of rules, controlled technologies cannot be “exported” to individuals who are foreign nationals except under a license issued by the Federal Government.
- Familiarity with “deemed” exports when technology or source code subject to the EAR to a foreign national, regardless of location
- Fundamental Research Exclusion (FRE)
- Situations that invalidate the FRE
- Faculty start-up funds and non-sponsored research that may be included on the export control lists
- Software development involving encryption technologies
- Shipping and payments to foreign persons outside the U.S.
- International travel especially when interacting with foreign nationals and sharing research findings
Fundamental Research Exclusion (FRE)- No license is required to disclose information to foreign nationals that has been published and is accessible or available to the public. This can be for example through fundamental research where the resulting information is ordinarily published and shared broadly.
What are the possible consequences for an individual who willfully or recklessly exports a technology?
Criminal violations may be fined up to $1,000,000 and may result in up to 20 years of imprisonment. Willful violators may be subject to both criminal fines and administrative penalties.
- Language that gives the sponsor a right to approve (not just review for intellectual property disclosure) publications resulting from research
- Language that otherwise operates to restrict participation in research and/or access to and disclosure of research results, such as government clauses inappropriately flowed down that apply export control restrictions or declare research outcomes as sensitive or classified.
The second broad issue is the transfer of items or services that cannot meet the requirements of the FRE. For example:
- Operations that represent a transfer of defense articles or services
- Receipt or transfer of items (rather than technical information) to which the FRE does not apply. Any tangible item that is associated with a ECCN or a USML classification will not qualify for the FRE.
Education exclusion – “Information concerning general scientific, mathematical or engineering principles commonly taught in universities or information in the public domain” does not require a license to share with foreign nationals. However, any controlled equipment needed to conduct research needs to be registered for instructional uses in credited research classes.
Employment exclusion – Under the EAR, no license is required to share covered technical data with a foreign national that is:
- Not a national of certain countries (depending on the ECCN)
- A full-time employee of USU
- Has a permanent U.S. address while employed
- Advised in writing not to share covered technical data with any foreign nationals
A person with specific knowledge of the international regulatory environment, or that has experience with facilitating communications among individuals with diverse languages and backgrounds would clearly be integral to the team, so long as the extent of the work was sufficient to require support on a relatively long-term basis at a substantial level of commitment (say .50 FTE or greater). However, an additional individual that was handling the normal work within the departmental office to support the same project would not qualify.
- Identify areas at USU that are impacted by export control regulations
- Develop export control procedure guidance to maintain compliance
- Educate inventors, principal investigators, research centers and academic units about export control regulations
- Educate business managers, purchasing, travel, international students and Human Resources about export control regulations
- Monitor and interpret export control legislation
- Assist investigators, researchers when research involves export controlled equipment or information
- Assist the PI in developing a technology control plan for research that requires it
- Apply for export licenses, commodity jurisdiction and commodity classification requests
- Advise and assist with record keeping for export controlled activities
Grant Coordinators & Administrators (Sponsored Programs Division)
- Provide assistance to PIs in reviewing terms of sponsored program agreements, material transfer agreements and other non- monetary agreements to identify restrictions on publication and dissemination of research results. The will also flag such restrictions in agency requests for proposals
- Provide assistance to PI in identifying international components of sponsored program agreements, identifying potential export control issues in the proposed international component
- Communicate identified potential export control issues to the PI and the Director of Export Compliance
- Coordinate any changes in awards that necessitate a re-review of the project for export controls
The school and department business administrators assist in ensuring compliance with export control regulations by identifying potential export issues in unit activities. Such issues may include:
- Reviewing invoices for statements that items may not be exported
- Ensuring international shipping is compliant with export control laws
- Ensuring that payments do not go to, or contracts are not entered into, anyone on the then-current Specially Designated Nationals (SDN) list
- Ensuring that international travel is compliant with applicable export control regulations
- Ensuring that visa export certification information has been completed
PIs, by nature of their profession, have expert knowledge of the type of information and technology involved in a research project and other university activities such as presentations and collaboration. PIs must ensure that they do not disclose controlled information that has been provided them under a corporate non-disclosure agreement or transfer controlled articles or services to a foreign national without prior authorization. Each PI must:
- Understand his/her obligations under the export control laws
- Assist the USU research compliance office in correctly classifying technology and items that are subject to export control laws
- Assist in developing and maintaining the conditions of a technology control plan for any activity, data or equipment where the need for such a plan is identified
- Ensure that research staff and students have been trained on the technology plan and on the export control regulations should any apply.