Research Export Controls

Export control laws are federal laws that govern the sharing of information with foreign governments or non-U.S. citizens or entities, and laws that govern the export of tangible items outside the U.S.  The U.S. export control laws are spread across several different federal agencies and acts of Congress.  The three most common export control laws are administered by three independent agencies:

• Department of Commerce Regulations: Export Administration Regulations (EAR) Administered by the U.S. Department of Commerce Bureau of Industry and Security. EAR covers "dual use" civilian/military items and technology and some items that have solely civilian use.
• Department of State Regulations: International Traffic in Arms Regulations (ITAR) Administered by the U.S. Department of State Directorate of Defense Trade Controls. ITAR regulates items and services related to military/defense applications, including spacecraft and satellites.
• Department of the Treasury Regulations: Office of Foreign Assets Control (OFAC) Administered by the U.S. Department of the Treasury, OFAC covers restrictions due to foreign trade embargoes and economic sanctions. It also has regulatory authority over travel and the transfer of funds, services, and items to certain countries, entities, and individuals.

Additionally, the EPA administers various laws related to the export of chemicals, plastics, and other potentially hazardous material.

Export control laws apply when a UA employee, student, or affiliate does any of the following:

• Travels on official UA business;
• Travels on personal business, but takes UA equipment, including a UA computer;
• Travels on personal business, but accesses UA information, such as their UA email or UA one drive account;
• Sends (or personally takes) UA-owned tangible items overseas; and
• Collaborates within the U.S. with a foreign person and shares export-controlled information, items, or software with that individual (also known as a "deemed export").

First, if the travel is for UA business, you must register for the travel.  More information may be found at the Traveling Abroad webpage.

Second, if the travel is personal, but you will be taking UA equipment, or accessing UA information (such as UA email or One Drive account), contact IT to ensure you are following the required processes for doing so.  More information may be found at the Information Security for International Travel webpage.

Finally, if you are conducting research that does not fall under the Fundamental Research Exemption and collaborating with foreign persons within the U.S., contact the Research Compliance Officer to discuss.

The FRE is an exclusion that exempts sharing of controlled information (but not tangible items) from the Export Control laws.  The FRE applies when basic research is conducted, driven by a scientist’s curiosity or interest in a scientific question. The main motivation is to expand human-kind’s knowledge, not to create or invent something. There is no obvious commercial value to the discoveries that result from basic research.

There are 5 conditions that must be met in order to apply the FRE:

• No publication restrictions can be accepted as part of the research agreement, either verbally or in writing.
• No foreign person restrictions can be accepted as part of the research agreement, either verbally or in writing.
• The scope of the project must constitute either basic or applied research.
• The scope of the project does not constitute development.
• The research project must be conducted at an accredited institution of higher learning in the United States.

Applied research is designed to solve practical problems of the modern world, rather than to acquire knowledge for knowledge’s sake. One might say that the goal of the applied scientist is to improve the human condition.  Thus, applied research does not typically fall into the FRE.

Remember that the FRE applies just to information; even if all 5 conditions are met, export controls may still apply to actual materials, items, or technologies involved in or resulting from the research.

A foreign person is any person who is not a lawful permanent resident of the United States, citizen of the United States, or any other protected individual as defined by 8 U.S.C. 1324b(a)(3). It also means any business (e.g. a corporation, business association, partnership, trust), or any other entity that is not incorporated in the United States or organized to do business in the United States.  Finally, it also means any international organizations, foreign governments and any agency or subdivision of a foreign government (e.g., diplomatic mission).

“Foreign person” is synonymous with “foreign national,” as used in the EAR, and “foreign person” as used in the International Traffic in Arms Regulations (22 CFR 120.16). This definition does not apply to part 760 of the EAR (Restrictive Trade Practices or Boycotts).

Violations of the Export Administration Regulations (EAR)

• Civil Penalties:
  
  • At least $12,000 for each violation
  • $120,000 if the item/information involves national security
  • Up to $300,000+ for each violation
• Criminal Penalties:
  • Individual: $50,000 up to $250,000 per violation, plus up to 20 years in prison
  • University: $50,000 up to $1,000,000 per violation
• Additional sanctions such as denial of export privileges, loss of federal funds, seizure of goods
• See BIS Penalties for more information regarding sanctions.

Violations of the International Traffic in Arms Regulations (ITAR)

• Civil Penalties: Up to $1,000,000+ for each violation
• Criminal Penalties: Up to $1,000,000 per violation or up to 20 years in prison per violation
• Additionally, suspension or debarment from government contracts, revocation of export privileges

Violations of Foreign Asset Control Regulations (OFAC)

• Civil Penalties: Up to $300,000+ per violation
• Criminal Penalties: Up to $1,000,000 or 20 years in prison (or both) for each violation
• Additional sanctions such as denial of export privileges, seizure of goods

• University researcher sentenced to prison for failure to disclose involvement with foreign research programs.
• U.S. citizens working with ITAR-controlled services agree to pay over $1.68 million in penalties for failure to procure license to provide such ITAR-controlled services.
• Company fined for illegal export of technology (information) to foreign national within the U.S.
• University charged with violating export control laws for exporting EAR99 items to company on the entity list.
• Princeton University settles allegations of export control violations for shipping pathogens without export licenses.

Research security is the set of practices that are required by the Federal granting agency, sponsor, or contract/subcontract, in order to protect export controlled tangible items, software, or information.  The practices are being put in place by Federal agencies, as required by the CHIPS & Science Act and other Federal communications.

NSF has an office of research security, and provides training on research security.

Depending on the funder and level of export control of items or information, there are various Research Security requirements, including:

• Foreign interest disclosures (Click below for more information on the specific requirements for each agency)
  
  • NSF
  • NIH
  • DOD
  • DOE
• Technology control plans
• Higher levels of physical and cyber security (above the "typical" UA environment)
• Training on research security
• Limiting access to information or items
• Annual updates to disclosures

For more information, navigate to the UA Research Security webpage (Under Construction).