Export Control and Embargoes
Three Regulatory Regimes in the U.S.
Office of Foreign Assets Control (OFAC)
Department of Treasury
- Payments or Providing Value to Nationals of Sanctioned Countries
and Some Specified Entities/Individuals
- Travel and Other Activities
with Embargoed Countries and Individuals
Export Administration Regulations (EAR)
Department of Commerce, BIS
- Export of "Dual Use" Technologies, Goods, Software,
and Information about those
International Traffic in Arms Regulations (ITAR)
Department of State
- Export of "Munitions" and other technolgies with "inherently
military properties"
Why the Growing Concern for Universities?
- Changes since 9/11
- Growing concerns about homeland security, terrorism
- The university and the global economy
- Sensitive but unclassified (NSDD-189)
- Universities are perceived as "sieves" of information to the
rest of the world
- OIG reports from DoD and DoC
OFAC Embargoes
- Rule: "U.S. persons," whether in the U.S. or abroad, are subject
to specific prohibition with regard to sanctioned:
- Countries
- Individuals
- Organizations
- Rule applies to all "U.S. persons"
- U.S. citizens, permanent rsident aliens
- Non-U.S. citizens on U.S. soil
- Entities organized under U.S. law
- For Cuban embargoes, includes controlled foreign subsidiaries
- There are no exclusions/exemptions
OFAC Embargoes apply to faculty, researchers, and students
(even when exempt under EAR and ITAR) in context of:
- Payments: compensation, honoraria, contracts,
services, value to embargoed countries, nationals, or entities
- Payments/Services/Value: to specifically listed individuals
- Travel: attendance at, or planning of, international conferences,
classes, field trips, etc., to sanctioned countries
- Editing, reviewing, joint authorship: or articles of/with nationals
of ambargoed countries
Questions About OFAC Embargoes
- Can I travel to an embargoed country?
- Can I send to an embargoed country:
- Scholarship funds?
- Funds to organize a conference?
- Payment to attend a conference?
- Payment for surveys and interviews?
- Payment for research project support?
- Check for restricted programs, countries, and persons at http://www.treas.gov/offices/enforcement/ofac/
Countries of Concern
- T-6 Countries: Cuba, Iran, Libya, Sudan, North Korea, and Syria
- OFAC embargoes apply to the T-6 countries as well as Burma/Myanmar,
Liberia, and Zimbabwe
- Embargoes vary by country and are subject to change. Verify
on the web.
- Note that ITAR and EAR regulations can also vary by country.
Questions for Analysis under ITAR and EAR
- Does an exclusion or exemption apply?
- If not, ask the following:
- Is there a proposed export of items, materials, technology,
technology data out of the U.S. by any medium?
- Is there a
deemed export by transfer of same within the U.S. to a
foreign national?
- If either is yes, ask: Is the export on the Commerce Control
or U.S. Munitions Lists?
http://fas.org/spp/starwars/offdocs/itar/p121.htm
http://www.access.gpo.gov/bis/ear/ear_data.html
- If yes, ask: Is the foreign national or the destination country
controlled for that export?
- If yes, ask: Can you get a license (permission)?
What is an "Export" under ITAR and EAR?
- Actual shipments or transmission of controlled items out of
the United States
- Disclosing (including oral or visual disclosure) "technical
data" or "technology" (including software source code) to a "foreign
person," whether in the United States ("deemed export") or abroad
- Performing technical assistance, training, or other "defense
services" for, or on behalf of, a "foreign person" (including
foreign corporations), whether in the United States ("deemed
export") or abroad
- Re-exporting from foreign countries U.S.-origin goods or technical
data, goods incorporating U.S. components, or goods manufactured
from U.S. technology or re-exporting U.S.-origin "technical data"
or software
Better to be Excluded or Exempted from Controls
- Public Domain Exclusion
- Fundamental Research Exclusion (FRE)
- Educational Exclusion (General science, math, and engineering
commonly taught at universities and conveyed in courses listed
in course catalogues - but excluding encrypted software)
- Bona fide full time employee exemption
Publicly Available / Domain Exclusion
- Exclusion applies to information and research results already
published and actually available (not just ordinarily published)
through:
- Libraries, bookstores, and newsstands
- Trade shows, meetings, and seminars open to the public
- Published in certain patent applications
- Websites accessible to the public
- Courses listed in a university catalog and of a general
nature
Fundamental Research Exclusion (FRE)
FRE, based on NSDD 189, applies to:
- Information
- That is publicly available and shared broadly
- That arises from basic and applied learning conducted at
an institution of higher learning located in the U.S.
- Aside from the above, for the FRE to apply the research cannot
be subject to publication restrictions or access controls
- The FRE applies to information and data only. It does
not apply to items, equipment, materials or other embodiments
of technology
- Exclusion doesn't avoid embargoes under OFAC
- If FRE applies, then
- information is not controlled
- information can be transferred in U.S. and abroad
- no license is required for U.S. universities to include
foreign faculty and students and visitors in research that
creates controlled information if in U.S
- Caution: Don't contract with any sponsor to
- restrict publications or
- forbid participation of foreign nationals
Educational Exclusion
- Applies to General Science, Math, and Engineering
- Information commonly taught at universities
- Information conveyed in courses listed in course catalogues
- Does not apply to encrypted software
Bona Fide Full Time Employee Exclusion
No license required for:
- Unclassified technical data provided to employees who are:
- Full-time regular employees of UW
- With permanent abode in U.S. while employed at UW
- Must inform employees in writing not to transfer to other foreign
nationals
Does not apply to:
- Students with F-1 Visas
- Nationals of ITAR-prohibited or embargoed countries
If Exclusions and Exemptions Don't Apply
Ask:
- Is there a proposed export of items, materials, technology,
technology data out of the U.S. by any medium?
- Is there a deemed export by transfer of same within the U.S.
to a foreign national?
If either is yes, ask:
- Is the item, material, technology, or technical data on the
If yes, ask:
- Is the foreign national or the destination country controlled
for the export?
If yes, ask:
- Can you get a license (federal permission)?
U.S. Munitions List (USML)
http://fas.org/spp/starwars/offdocs/itar/p121.htm
- Firearms
- Artillary Projectors
- Ammunition
- Launch Vehicles, etc.
- Explosives, Propellants, Incendiary Agents and their Constituents
- Vessels of War and Special Naval Equipment
- Tanks and Military Equipment
- Aircraft and Associated Equipment
- Military Training Equipment
- Protective Personnel Equipment
- Military Electronics
- Fire Control, Range Finder, Optical and Guidance and Control
Equipment
- Auxillary Military Equipment
- Toxicological Agents and Equipment and Radiological Equipment
- Spacecraft Systems and Associated Equipment
- Nuclear Weapons Design and Related Equipment
- Classified Articles, Technical Data andDefense Services Not
Otherwise Enumerated
- Reserved
- Reserved
- Submersible Vessels, Oceanographic and Associated Equipment
- Miscellaneous Articles
Commerce Control List (CCL)
http://www.access.gpo.gov/bis/ear/ear_data.html
- Category 0 - Nuclear Materials, Facilities and Equipment and
Misc.
- Category 1 - Materials, Chemicals, Microorganisms and Toxins
- Category 2 - Materials Processing
- Category 3 - Electronics
- Category 4 - Computers
- Category 5 - Telecommunications and Information Security
- Category 6 - Lasers and Sensors
- Category 7 - Navigation and Avionics
- Category 8 - Marine
- Category 9 - Propulsion Systems, Space Vehicles and Related
Equipment
Red Flags
- Shipping equipment to a foreign country?
- Collaborating with foriegn colleagues in foriegn countries?
- Working with a country subject to a U.S. boycott?
- Training foreign nationals in using equipment?
- Using another party's proprietary information?
- Sponsor approval rights over publications?
- Sponsor approval for foriegn national participation?
What About Traveling with your Laptop or GPS?
- You "export" your laptop or GPS when you travel abroad with
it or are "deemed to export" if you allow a foreign national
in the U.S. to use it
- If your computer or GPS contains research data, or encrypted
or proprietary software, then you may need a license (or be prohibited
from taking the laptop) depending on destination and use
- Use Checklist on OSP website
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