EXPORT CONTROLS

Export Controls are established to implement treaties and national security laws, generally protect national

security and to combat terrorism

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 ARE EXPORT CONTROLS?

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 are complicated by the fact that three different federal agencies are responsible for different aspects of export .

EXPORT CONTROL REGULATIONS

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 GartonApril 26, 2004

1. 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

2. Fundamental Research

(note definitions and caveats associated with this exemption)

1. Equipment or encrypted software is involved, or

2. Technology is not in the public domain, and

3. 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

4. The contract has terms e.g. a publication restriction that affect the Fundamental Research Exemption

NO

1. Equipment, software, chemical, bio-agent, or technology is on the US Munitions List (ITAR), or

2. 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

3. Chemicals, bio-agents or toxins on the Commerce Control List are involved, or

4. The contract contains a restriction on export or access by foreign nationals

YES

License Will Be Required

Probably(further review is required)

License May 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 .

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

CONTACTS