Summary of Federal Laws
Export Administration Act (EAA) and the Arms Export Control Act (AECA)
The Export Administration Regulations (EAR) and International Traffic in Arms Regulations (ITAR), as amended by the International Emergency Economic Powers Enhancement Act of 2007 and the Comprehensive Iran Sanctions, Accountablity and Divestment Act of 2010.
50 U.S.C. § 2401 et seq. (Nuclear Security)
22 U.S.C. § 2751 et seq. (Foreign and National Security Policy)
22 U.S.C. § 6701 et seq.(Arms Export Control)
15 C.F.R. § 710 et seq. (Chemical Weapons Convention Regulations)
22 C.F.R. § 120 et seq.(International Traffic in Arms Regulations)
15 CFR 730 et seq.(Export Administration Regulations)
These laws must be complied with when non-U.S. persons or foreign nationals are granted access to regulated products or technology by a company or institution of higher education in the United States. Under the "deemed export" rule, allowing non-U.S. persons or foreign nationals access to the product or technology may trigger the requirement to apply for a license prior to that access. The EAA and the EAR control the export of dual-use goods and technology (items and technical information that have both commercial and military purposes) and the AECA and ITAR control the export of products and technology with primarily military, intelligence or defense-oriented purposes.
President Obama Announces Significant Easing of Sanctions and Export Controls Applicable to Cuba (Hogan Lovells, Dec. 17th, 2014) Not yet fully implemented, but coming soon. Article is a good summary of changes in the works.
Embargoed and Sanctioned Countries-University of Pittsburgh Chart
Best graphic of which countries are a concern for either exports or deemed exports.
The Export Administration Regulations (EAR)
The Export Administration Regulations (EAR) govern export of goods and services on the Commerce Control List (CCL).
Most research done at universities should be exempt from the EAR as long as the institution has not accepted restrictions on publication of results and thus falls under the fundamental research exclusion. "Fundamental research" means basic and applied research in science and engineering, the results of which ordinarily are published and shared broadly within the scientific community. The exemption for fundamental research is codified at 15 C.F.R. § 734.8. Fundamental resesrch exlcusion covers the University up until publication. Then the public domain exclusion somes into play. With an *exclusion* the rules don't apply at all. The *exception* is narrower.
Note: While the University does not need a license for fundamental research, it can still create export control issues if using infared cameras or foreign nationals are participating in the research. In context of sponsored research, if you accept contract clauses that restrict publication, you may kick the research into export control space. With government sponsored research, their controls don't necessarily take away your fundamental research exclusion.
Export controls are frequently associated with the following areas:
Chemical, Biotechnology and Biomedical Engineering
Sensors and Sensor Technology
Remote Sensing, Imaging and Reconnaissance
Advanced Computer/Microelectronic Technology
Navigation, Avionics and Flight Control
Laser and Directed Energy Systems
Propulsion System and Unmanned Air Vehicle Subsystems
See 15 C.F.R. § 730.5 for definitions on the scope of exports. In relevant part, this regulation states as follows:
(c) Scope of "exports." Certain actions that you might not regard as an "export" in other contexts do constitute an export subject to the EAR [Export Administration Regulations]. The release of technology to a foreign national in the United States through such means as demonstration or oral briefing is deemed an export. Other examples of exports under the EAR include the return of foreign equipment to its country of origin after repair in the United States, shipments from a U.S. foreign trade zone, and the electronic transmission of non-public data that will be received abroad.
(d) U.S. person activities. To counter the proliferation of weapons of mass destruction, the EAR restrict the involvement of "United States persons" anywhere in the world in exports of foreign-origin items, or in providing services or support, that may contribute to such proliferation.
The EAR also restrict technical assistance by U.S. persons with respect to encryption commodities or software.
The International Traffic in Arms Regulations (ITAR)
The International Traffic in Arms Regulations govern the export of defense articles and defense services, i.e. those items with a military application, or to put it more succinctly, as Carol Carr states in her memo (see below under resources) "goods and technology defined to kill people or defend against death in a military setting." The licensing conditions for materials covered as military products and technology are set forth at 22 U.S.C. § 2778. The Department of State administers this law. China is not subject to economic sanctions, but is subject to an arms embargo under ITAR.
The munitions list includes such items as firearms, ammunition, explosives, military vehicles, spacecraft, military and space electronics, protective equipment, guidance and control equipment, and some nanotechnology/new materials and sensors. Certain software is also covered. Note that defense services covers furnishing controlled technical data to foreign nationals anywhere, even if such technical data may be in the public domain.
The International Emergency Economic Powers Enhancement Act of 2007 significantly increases penalties for export violations, including deemed export violations. See the Oct. 16, 2007 article titled Increase in Fines for Export/Sanctions Violations: President Bush Signs IEEPA Enhancement Act, by Steptoe and Johnson. The penalty increase applies to almost all economic sanctions programs administered by OFAC, and the anti-boycott and export control rules in the Export Administration Regulations. Click here for a summary of how the IEEPA provides the statutory authority for the continuation in force of the EAR.
Regulations and Proposed Regulations relating to either ITAR or EAR
Interim Final Rule, ITAR: Revisions to Definition of Export and Related Definitions, 81 Fed. Reg. 35611, June 3, 2016, effective September 1, 2016.
Revises fundamental research exception but scope is same. Expands definition of *published* to include posting to internet, submission to journal editors and conference organizers. New provision related to transfer of encrypted software and technology: Encrypted end to end, no transfer till decrypted. See the FAQ for June 3, 2016 on this rule.
Assitance to Foreign Atomic Engery Activities, August. 2, 2013, Supplemental Notice of Proposed Rulemaking. This proposed rule identifies destinations where assistance would be authorized, and destinations that would require Dept. of Energy approval. See the list of countries at the end
Revisions to the Export Administration Regulations to Make the Commerce Control List Clearer, Proposed Rule, 77 Fed. Reg. 71214, Nov. 29, 2012
USA v. John Reece Roth, 6th Circuit, No. 09-5805, Jan. 5, 2011
The court held that in ordre to prove a willful violation of the Export Control Act, the government only needs to prove the defendant acted with knowledge that his conduct was unlawful, not the the specific items were on the Munitions List. Summary from case:
"Defendant-appellant John Roth worked as a consultant on a United States Air Force defense research project, which had been awarded to Atmospheric Glow Technologies, Inc. in Knoxville, Tennessee. The project entailed developing plasma technology for use on military aircraft. The government charged Roth with exporting data from the project on a trip to China and allowing two foreign nationals in Knoxville access to certain data and equipment in violation of the Act. A jury in United States District Court for the Eastern District of Tennessee convicted him of one count of conspiracy, fifteen counts of exporting defense articles and services without a license, and one count of wire fraud."
The 6th Circuit affirmed. Roth was a professor of electrical engineering at the University of Tennessee.
Homeland Security PowerPoint on Export Control by Chris Roth,Special Agent, Homeland Securirty
CUA Office of General Counsel PowerPoint on Export Control by Scott Goldschmidt (co-creator Stephen Fey, law clerk) 2-24-15.
March 29, 2011 Export Control Training by Bob Hardy, Director, Contracts and IP, COGR and David Dunbar, Export Compliance Officer, University of Maryland. Excellent overview, posted with permission of the authors.
Cooley Update on Cuban and Iranian Embargoes dated 2-16-16
Great summary of what is and is not allowed in the realm of higher education and research.
Hogan Lovells International Trade Alert, Jan. 19, 2016 Implementation Day: Certain EU Sanctions and U.S. Secondary Sanctions Lifted But Broad U.S. Sanctions Remain**Summary of what sanctions against Iran remain in place.
University of Chicago Export Compliance Overview: See footnote 1 for explanation of publication restrictions.
By definition, fundamental research means that no publication or citizenship restrictions are accepted from any sponsor (industry or government agency) by any means (prime contract or flow down), explicitly or unofficially. A publication restriction is one in which a sponsor requires withholding of research results for any reason other than a) to make sure that no proprietary data provided to the PI is disclosed in the published research results or; b) the time necessary to file a patent application. A sponsor’s general requirement that publication be withheld “pending review” or review for a period of time beyond what is reasonably required to filter out proprietary data would constitute a publication restriction and disqualify UChicago from FRE protection.
Hogan Lovells Energy and Export Controls Alert, Feb. 2015, DOE issues final rule amending its nuclear export control regulations.
University of Missouri: Exclusions/Exemptions from Export Control Regulations**
Includes an explanation of the following exclusions: Fundamental Research, Educational Instruction, Public Domain/Publicly Available, and for ITAR research only the exemption for disclosures of unclassified technical datain the US by schools to foreign nationals where 1) the foreign national is the University's bona fide full-time regular employee, 2) the employee's permanent abode throughout the period of employment is in the U.S., 3) the employee is not a national of an embargoed country, and 4) the University informs the employee in writing that information disclosed may not be disclosed to other foreign nationals without governmental approval.
Hogan Lovells: State Department Issues Advisory Opinion on Cloud Computing(June 13, 2014)
n a recent advisory opinion related to an exemption under the International Traffic In Arms Regulations (ITAR), the State Department confirmed that a company could use a data security method called “tokenization” to protect export-controlled technical data stored in the cloud on servers located outside the United States, provided the company satisfied the conditions of the exemption and took “sufficient means” to prevent foreign persons from accessing such technical data.
Hogan Lovells Sanctions Alert Feb. 7, 2014 New list to check in addition to the SDN list maintained by OFAC.
The new list is names of non-U.S. persons and entities located outside sanctioned countries with whom dealings generally are prohibited pursuant to Executive Order (EO) 13608 from 1 May 2012 and is called the Foreign Sanctions Evaders list. See the Treasury Press Release 2/6/14.
Deemed Export: Power Point posted with permission of author Helene Robertson, Director of International Student and Scholar Services, Office of International Programs, Georgetown University.
Georgia Tech Export Control Web Page (current news)
Hogan Lovells article on Presidential Authority to Modify Economic Sanctions against Cuba, Feb. 15, 2011 This is a legal analysis prepared at the request of the Cuba Study Group and released in connection with a forum on US Cuba Relations at the Brookings Institution.
NAFSA Resource Library: Form I-129 Export Control Attestation Practice Resource
NACUANOTES Export Compliance During the Visa Application Process (Feb. 11. 2011)
Consolidated Screening List: This page has links to files consolidating screenings lists of Department of Commerce, State and the Treasury into one spreadsheet as an aid to industry in conducting electronic screens of potential parties to regulated transactions.
See the Hogan Lovells Alert May 2010 Titled Defense Department Publishes Two Notices Regarding Unclassified Information and Export Controls. This deals with a March 3, 2010 proposed rule on safeguarding unclassified information and an April 8, 2010 final rule.
Fundamental Research: Department of Defense May 24, 2010 Memo issued by Under Secretary of Defense for Acquisition, Technology and Logistics. This memo affirms restrictions may be not be placed on subcontracted unclassified research that has been determined to be fundamental research under NSDD 189.
August 28, 2009 NACUANOTE: International Academic Travel and US Export Controls
Short summary paragraph from the NOTE: Academic personnel must consider the potential effect of each set of U.S. export control regulations on the proposed international travel to assure that both the institution and the individual traveler are in compliance. U.S. export control laws are principally concerned with whether the academic traveler will take and then disclose any controlled technology or other controlled information to non-U.S. persons (e.g., in papers or on their laptop computers) or will export any controlled items (e.g., sensors, test instrumentation, reagents, biological materials or other similar tangible goods) to non-U.S. persons. Generally speaking, the EAR considers the shipment or delivery of a tangible good to a non-U.S. person an "export" and regards the disclosure of controlled information to a non-U.S. person a "deemed export"..
George Washington University Export Control Policy: This policy includes an excellent project analysis tool in the Appendix.
Carol T. Carr, Negotiating the Mine Field: The Conduct of Academic Research in Compliance with Export Controls NACUA 2006 monograph (password needed)
University of Pennsylvania web page on Export Control Laws
Export Control Compliance web page at University of Minnesota
Georgia Institute of Technology Export Control Chart: This chart, reprinted with permission of Kate Wasch, Senior Attorney, Office of Legal Affairs, Georgia Institute of Technology, guides the user through the process of deciding if they need to be concerned about export controls in their research.
UC Berkeley Export Control and Research Page
Contains a concise summary of the laws, an explanation of the fundamental research exclusion for universities, and an explanation of what is considered published information for purpose of the exclusion.
CCR updated CFR links 6/1/15
updated 7-22-16 to add ITAR interim final rule