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DISCUSSION:
In general, the most relevant U.S. export controls are grounded in three separate sets of federal regulations:
- The embargo laws and regulations are codified at 31 CFR Part 500 et seq. and are administered by the Office of Foreign Assets Control (OFAC), a unit of the U.S. Department of the Treasury, and so they are usually called generically the “OFAC Regulations.” The OFAC Regulations affect commerce with a specified list of embargoed countries and with certain “specially designated nationals” (SDNs). The OFAC Regulations can change from time to time, often on little or no notice, because the statutory powers given the President are designed to be used for difficult and delicate foreign policy situations where urgent action may be needed to protect U.S. national foreign policy or national security interests;
- The ITAR are codified at 22 CFR Part 120 et seq. The ITAR govern the production of “defense articles” and provision of “defense services” by U.S. persons as those terms are defined within the ITAR. A core part of the ITAR is the U.S. Munitions List (USML) (22 CFR Part 121), which defines a number of categories of such items [3]. The ITAR is administered by the U.S. Department of State’s Directorate of Defense Trade Controls (DDTC); and
- The U.S. Export Administration Regulations (EAR) are codified at 15 CFR Part 730 et seq. The EAR govern the export of “dual use” items [4] that are listed within the Commerce Control List (CCL) (15 CFR Part 774, Supplement No.1). The EAR are administered by the U.S. Department of Commerce’s Bureau of Industry and Security (BIS).
As a practical matter, there are two points in the academic traveler’s travel planning process where U.S. export control laws may apply to an international trip: when evaluating what may be taken along as personal baggage and when determining what may need to be sent or shipped separately to the foreign destination. For instance, if the traveler intends to perform some field research with a colleague in another country or to provide a technological demonstration at a conference, he or she may need to send to the site separately certain equipment (e.g., computers, sensors, measuring instruments, reagents, etc.), data or software.
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 [5].”
However, in the case of academic travel to Cuba, the current OFAC embargo against Cuba also regulates travel per se by U.S. nationals to Cuba, even if there is no planned disclosure of any controlled information or export of a controlled item. So, in the case of any proposed Cuban travel, the institution and the academic traveler need to take the additional steps outlined below in Step 4.
Here are the steps to consider in connection with international travel.
Step 1: Identify the Applicable Regulations
The essential first step in planning international academic travel is to determine which of the above regulations apply to the proposed trip. This requires the academic traveler to assess whether he plans to take any controlled information or materials, or to send or deliver any controlled goods, to non-U.S. persons outside the United States. If the academic traveler cannot make that determination, the traveler should consult the institution’s export control compliance officer and, if necessary, discuss the identified deemed export or export with the relevant U.S. regulatory agency.
Moreover, given the current wide-spread use of laptops and the expansion of laptop memory capacity via internal and external drives or portable “thumb” or flash drives, a traveler needs to consider whether his or her laptop or other separate storage device contains material that has nothing to do with the planned trip but one or more of the U.S. export regulations. The fact that the academic traveler merely carries certain information or software to another country on a laptop or other storage device may be sufficient for federal agencies to consider that the information or software was “exported” to that country, even if not actively used by the traveler in a presentation, discussion, or research in that country.
Step 2: Identify any Applicable Exclusions or Exemptions
If one or more of the regulations applies to a proposed trip, then the academic traveler must determine if those regulations provide an express exclusion or exemption for the type of disclosure or physical export that permits the proposed activity without getting an export license from the relevant agency. The OFAC regulations, the ITAR, and the EAR each contain unique forms of exclusions or exemptions and it is beyond the scope of this Note to cover them all [6]. However, it is vital for institutions and academic travelers to understand that the so-called “fundamental research” exemption articulated in various ways by these three sets of regulations does not directly apply to any settings outside the United States. In other words, what can be lawfully done with non-American colleagues or students on the home campus inside the United States is not automatically extended to a laboratory or field research site in another country with respect to a deemed export or export, but the EAR will usually permit the presentation at foreign meetings or conferences of the fruits of academic research undertaken within the United States. (See Supplement No. 1 to Part 734—Questions and Answers—Technology and Software Subject to the EAR, Questions B (1) and B (4).)
The EAR’s baggage (BAG) and temporary export (TMP) license exemptions, which are applicable to all international travel, are especially useful to academics traveling abroad. The BAG license exception in 15 CFR Part §740.14 permits an American who is temporarily traveling abroad (for example, teaching or studying as a visiting scholar) to take his or her personal laptop with normal and customary application software and data for the traveler’s personal use, provided the laptop is kept under the traveler’s control and is brought back to the United States at the end of such travel. Similarly, under the TMP license exception, Part §740.9 an American traveler may take an institution-owned laptop abroad, provided the laptop is kept under the traveler’s control and is brought back to the United States not more than one year after the original departure date. Subject to certain limitations, these license exceptions also allow U.S. academic travelers to receive shipments, transmissions or releases of technology exported to them from the United States. However, these EAR license exceptions do not apply to laptops taken or the receipt of technology exported to Cuba, Iran, North Korea, Sudan and Syria. Academic travelers should consult their institution’s export control officer to insure that the BAG or TMP exception applies to their travel.
In addition, the BIS has also published a handy FAQ, Supplement No. 1 to Part 734—Questions and Answers—Technology and Software Subject to the EAR that contains many familiar instances of academic travel and relatively clear guidance on how the BAG and TMP exceptions would treat the incidental disclosure of research findings or other similar data in the course of such travel.
Step 3: Obtain any Necessary Export License
If the applicable exemptions or exclusions are insufficient to authorize the type of disclosure or physical export contemplated by the academic traveler, then the planned activity will require an export license from the relevant regulatory agency. Each agency has its own unique application process. License applications under the ITAR and the EAR usually require processing through an online account maintained only by the institution itself. So, there should be careful coordination between the academic traveler and the institution’s export control officer to insure that the license application is prepared and submitted in a timely manner and in accordance with the applicable agency’s specific procedures. These licensing agencies have their own processing schedules, and an academic traveler will be frustrated if the institution files a license application on a “last minute” basis because the processing times for such licenses can often exceed 30 days. In sensitive cases involving certain technology or particular countries, complete processing within the BIS or the DDTC may take 60, or even 90, days. Moreover, occasionally, the government issues the license subject to specific terms and conditions. The academic traveler needs to understand and abide by these limitations, which may alter or restrict the planned international activity.
Step 4: Determine if the Travel Itself is Controlled
Neither the EAR nor the ITAR regulate academic travel itself. These regulations only prohibit the export of tangible goods or the deemed export of certain forms of technology or information that impinge upon U.S. national security interests if shared with non-U.S. persons. However, under the OFAC regulations, the government retains the right to regulate travel itself to certain destinations, as a matter of U.S. foreign policy. Under the OFAC embargoes in place as of August 2009, only travel to Cuba is per se regulated.
At the present, OFAC may issue licenses to authorize Cuban travel and specific related transactions for certain educational activities by students or employees at U.S. undergraduate or graduate institutions. If OFAC issues a license, it must be renewed after one year. Once an academic institution receives a specific license, the following categories of travelers affiliated with that academic institution are authorized to engage in travel-related transactions incident to the following activities without seeking further authorization from OFAC:
- Undergraduate or graduate students participating in a structured educational program lasting at least ten weeks in Cuba as part of a course offered at a U.S. undergraduate or graduate institution [7].
- Persons conducting non-commercial Cuba-related academic research in Cuba for the purpose of qualifying academically as a professional (e.g. research toward a graduate degree) [8].
- Undergraduate or graduate students participating in a formal course of study lasting at least ten weeks at a Cuban academic institution provided the Cuban study will be accepted for credit toward a degree at the licensed U.S. institution [9].
- Persons regularly employed in a teaching capacity at a licensed U.S. undergraduate or graduate institution who plan to teach part or all of an academic program at a Cuban academic institution for at least ten weeks [10].
- Cuban scholars teaching or engaging in other scholarly activities at a licensed college or university in the United States. Licensed institutions may sponsor such Cuban scholars, including payment of a stipend or salary and the Cuban scholar may carry all such stipends or salary payments back to Cuba [11].
- Full-time employees of a licensed institution organizing or preparing for the educational activities described above [12].
Overall, these U.S. export control regulations are probably more tedious to understand and follow with respect to academic travel than they are actually burdensome in practice, once properly analyzed. However, as illustrated in the Roth case outlined at the beginning of this Note, the Department of Justice has effectively served notice to all U.S. academic institutions that it will deal firmly with U.S. export control violations that occur in relation to such academic travel and in interactions with non-U.S. persons.
FOOTNOTES |
