XV. Export Controls
INTRODUCTION:
Over the past few years the Federal government has become
increasingly involved with protecting information and technology
from disclosure by universities, the release of which could hamper
U.S. economic vitality or contributes to the military personnel of
the U.S. international adversaries. Export laws and regulations
promulgated by the U.S. Department of Commerce, the U.S. Department
of State and the Treasury Department's Office of Foreign Assets
Control are the bases for restricting use and access to this
information and technology. These laws impact research, foreign
travel and the transfer of technology and information to certain
countries. The laws also impose severe criminal and civil fines for
noncompliance. It is important that all persons involved in
sponsored research understand the regulations and implementation
requirements.
This information sheet provides an overview of the Department of
Commerce's ITAR and EAR regulations, the Office of Foreign Assets
Control embargoes, principal investigator responsibilities,
examples for LU faculty and staff, penalties for non-compliance and
important links for further information.
OVERVIEW OF 'ITAR' AND 'EAR':
Export Control is regulated by the Department of Commerce's
Export Administration Regulations (EAR) and by International
Traffic in Arms Regulations (ITAR). These regulations control the
export of commodities, software, technical data, and information to
foreign countries.
Export commonly refers to the shipment or transmission of items,
services, or technical data out of the United States. However,
under EAR and ITAR export can also refer to the release of
technology or software technical data to a foreign national in the
United States (deemed export). Software or technical data is
considered released for export through:
- visual inspection by foreign nationals of equipment and
facilities that originated in the United States;
- oral exchanges of information in the United States and abroad;
or,
- the application to situations abroad of personal knowledge or
the experience acquired in the United States.
EAR uses the regulations in the Commerce Control List maintained
by the Bureau of Industry and Security (BIS) that includes items,
commodities, software, and technology subject to the authority of
BIS. ITAR regulations focus on the export of defense articles and
defense services and use a list of categories called the U.S.
Munitions List.
ITAR and EAR cover items of U.S. origin, such as:
- equipment
- chemicals
- biological substances
- other materials
- software code
- computers
ITAR and EAR issues usually do not pertain when your research
and the information you are working with:
- is in the public domain
- is not encrypted software
- does not have sponsor restrictions on publication; and/or
- is not related to space or missile technologies, military
technologies, or military applications.
An export license may be required before a controlled item or
material may be exported. A license could take 3-6 months to
acquire. For example, you cannot ship computers to restricted
countries without licenses. There are severe penalties for
non-compliance.
THE OFFICE OF FOREIGN ASSETS CONTROL:
In addition to ITAR and EAR, the Office of Foreign Assets
Control (OFAC) of the U.S. Department of the Treasury administers
and enforces economic and trade sanctions based on U.S. foreign
policy and national security goals against targeted foreign
countries, terrorists, international narcotics traffickers, and
those engaged in activities related to the proliferation of weapons
of mass destruction. OFAC prohibits payments or providing anything
of value to sanctioned countries, nationals of some countries and
specified entities.
OFAC also prohibits travel to and other activities with
embargoed countries and entities. In general, OFAC "trumps"
export controls. The countries where U.S. policy is normally
to deny licenses is: Afghanistan, Belarus, Cuba, Iran, Iraq, Libya,
North Korea, Syria, Vietnam and to countries where the U.S. has an
arms embargo (Burma, China, Haiti, Liberia, Rwanda, Somalia, Sudan,
Zaire) and in certain circumstances also Armenia and
Azerbaijan.
PRINCIPAL INVESTIGATOR RESPONSIBILITIES:
Every principal investigator should ask him/herself the
following questions:
- Does the research involve any EAR categories?
- Does the research involve any item on the ITAR munitions
list?
- Does the research involve technology or devices designed for
use in military, security, and intelligence applications?
- Does the research involve anything else with a substantial or
dual-use military application?
- Will you collaborate in any way with a foreign national as a
research or commercial partner?
- Will you use a research assistant who is a foreign
national?
- Will you send your research results to a foreign country or
foreign citizens?
- Do you anticipate any foreign travel associated with the
project?
If you answer affirmatively to any of these questions,
then there is a possibility that export control does apply to your
project. You must consult with the Office of Sponsored Projects to
determine if export controls pertain to your project and if a
license is required.
Examples when export controls may apply to a LU employee:
- A LU employee carries a laptop computer into one of the
OFAC/embargoed countries.
- A LU employee carries a cellular phone that has a GPS system
into a restricted country.
- A LU employee accepts an award from the U.S. government that
has propriety restrictions on the release of data.
- A LU employee ships computers or encrypted software to a
foreign country.
- A LU employee collaborates with a foreign national or releases
information to a foreign national on a research project for the
federal government.
PENALTIES FOR NON-COMPLIANCE:
Faculty members are criminally liable for violating the
ITAR/EAR/OFAC export controls or embargo's.
ITAR PENALTIES
- Criminal: up to $1 million per violation and up to 10 years in
prison
- Civil: seizure and forfeiture of articles, revocation of
exporting privileges, fines of up to $500,000 per violation.
EAR PENALTIES
- Criminal: $50K-$1million or five times the value of export,
whichever is greater, per violation, or 10 years in prison.
- Civil: loss of export privileges, fines $10K-$120K per
violation
OFAC PENALTIES
- Criminal: Up to $1 million and 10 years in jail
- Civil: $12K-$55K per instance
IMPORTANT LINKS FOR FURTHER INFORMATION: