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Institutional Services |Purchasing and Contracts |Research Funded Purchasing | Export Controls

Export Controls

  • Introduction
  • Definitions
  • Regulations      
  • Exemptions and Exclusions
  • Penalties and Sanctions 
  • Traveling with Laptops, GPS and Other Equipment
  • Links

  • Introduction

    The export of controlled items such as commodities, technology, software, or information to restricted foreign countries, persons, and entities fall under export control regulations. 

    There are three federal government agencies responsible for implementing the export control regulations. They are as follows:   

    • The Department of Commerce:  Export Administration Regulation - applies to dual use technologies, technical data and commodities that have both commercial and military/security applications.
    • The Department of State: International Traffic in Arms Regulation - applies to inherently military/satellite technologies or items that can be used in a defense/military application.
    • The Department of Treasury: Office of Foreign Assets Control - prohibits transactions with countries subject to boycotts, trade sanctions, embargoes, and/or restricted persons.

    The University at Albany, the Research Foundation for The State University of New York and the Office of Purchasing and Contracts are committed to ensuring compliance with federal export control regulations.

    Definitions

    Export controls: U.S. federal government laws and regulations requiring federal agency approval before the export of controlled items, commodities, technology, software, or information to restricted foreign countries, persons, and entities (including universities).

    Export:  Any item that is sent from the U.S. to a foreign destination to anyone outside the U.S., including U.S. citizens or to foreign entities, individuals, embassies, or affiliates at any location, including the U.S. 

    "Items" include, but are not limited to, commodities, software or technology, retail software packages and technical information. 

    Foreign National: A person who has not been granted permanent U.S. residence, as demonstrated by the issuance of a permanent residence card, i.e., a "Green Card"; or granted U.S. citizenship; or granted status as a "protected person" under 8 U.S.C. 1324b(a)(3), e.g., political refugees, political asylum holders, etc.

    Re-export: The shipment or transmission of an item subject to regulation from one foreign country to another foreign country.

    A re-export can occur when there is a "release" of technology or software (source code) subject to regulation in one foreign country to a national of another foreign country.

    Deemed export:  The federal definition of a deemed export is an export of technology or source code (except encryption source code) that is "deemed" to take place when it is released to a foreign national within the U.S.

    A "deemed" export situation can occur by access/use in research or training, visual inspection, or an oral exchange of information.

    Regulations

    Department of Commerce

    The Bureau of Industry and Security within the Department of Commerce is responsible for implementing and enforcing the Export Administration Regulations (EAR). EAR applies to dual use technologies, technical data and commodities that have both commercial and military/security applications. The Commerce Control List (CCL) identifies the ten categories of controlled items.  The categories are as follows:

    • Category 0 - Nuclear materials, facilities and equipment
    • Category 1 - Materials, chemicals, microorganisms, toxins
    • Category 2 - Materials processing
    • Category 3 - Electronics
    • Category 4 - Computers
    • Category 5 - (Part 1) Telecommunications
                           (Part 2) Information security
    • Category 6 - Sensors and lasers
    • Category 7 - Navigation and avionics
    • Category 8 - Marine
    • Category 9 - Propulsion systems, space vehicles and related equipment

    EAR prohibits the unlicensed export of the 10 categories on the CCL to restricted foreign persons, entities (including universities) and countries. The reasons include but are not limited to preventing terrorism and the proliferation of weapons of mass destruction, guarding against contributions to adversaries' military potential, protecting U.S. foreign policy and national security, and promoting U.S. economic growth and objectives.

    Department of State

    Within the Department of State, the Directorate of Defense Trade Control is charged with the controlling the export and temporary import of defense articles and defense services controlled by the U.S. Munitions list and it therefore responsible for the enforcement of the International Traffic in Arms Regulations (ITAR).  The items on the U.S. Munitions list include, but are not limited to the following:

    • Firearms
    • Guns and Armaments
    • Ammunition/Ordnance
    • Missiles
    • Explosives

    Under ITAR the term export includes (1) sending or taking a defense article outside the U.S.; (2) transferring registration to a foreign person of any items covered by the U.S. Munitions list; (3) disclosing or transferring a defense article to a embassy, agency or subdivision of a foreign government; (4) disclosing or transferring technical data to a foreign person; (5) performing a defensive service on behalf of or the benefit of a foreign person; and (6) any sale, transfer, or proposal to sell or transfer defense articles or defense services.

    Department of Treasury

    The Office of Foreign Assets Control (OFAC) within the Department of the Treasury is responsible for administrating and enforcing trade sanctions based on U.S. foreign policy and national goals against targeted foreign countries and regimes, terrorists, international narcotics traffickers, those engaged in activities related to the proliferation of weapons of mass destruction, and other threats to the national security, foreign policy or economy of the U.S.

    OFAC prohibits financial transactions and trade, the transfer of asset, and travel to sanctioned persons, countries and entities on specialty designated lists and financial advisories.

    The Department of the Treasury maintains a listing of sanctioned countries, specialty designated nationals and financial advisories.

    Exemptions and Exclusions

    Export controls do not apply to information that is already published and widely available.

    National Security Decision Directive (NSDD) 189 allows for fundamental research exclusion (FRE).  NSDD defines fundamental research as basic or applied research in science and engineering at an accredited institution of higher learning in the U.S. where the resulting information is ordinarily published and shared broadly in the scientific community.

    FRE generally applies provided there are no:

    • restrictions to access or dissemination of the research or information;
    • restrictions to access by foreign nationals; or
    • restrictions on proprietary/confidential information.

    FRE may not apply and an export license may be necessary if a project involves shipping controlled items to a sanctioned country and/or restricted person.

    FRE is void if the university:

    • accepts any restrictions on the publication of information;
    • gives a sponsor the right to approve publications;
    • limits access of foreign nationals; or
    • applies these limitations to any sponsor.

    Penalties and Sanctions

    Each of the three governmental agencies has their own set of penalties and sanctions for violating export control regulations.  The table below gives a brief overview of the civil and criminal penalties.

     

    Penalty Type

    EAR

    ITAR

    OFAC

    Civil

    Fines up to $250,000 per violation or twice the transaction amount

    Fines up to $500,000 per violation

    Fines up to $250,000 per violation.

    Criminal

    Fines up to $1 million per violation plus up to 20 years imprisonment

    Fines up to $1 million per violation plus up to 10 years imprisonment

    Fines up to $1 million per violation plus up to 10 years imprisonment

     

    Additional penalties and sanctions include the suspension or debarment from government contracts, the revocation of export privileges, seizure, or forfeiture of the article and the loss of federal funds.

    Traveling with Laptops, GPS and Other Equipment

    An export license may be required when traveling outside the U.S. with a laptop, PDA, cell phone, data storage devices and/or encrypted software.  Under EAR and ITAR a laptop is generally exempted from the lists of controlled items/equipment. However, a license is required when a laptop with controlled research data or encrypted/proprietary software is hand-carried or shipped abroad to a restricted country and/or to a denied person/entity. When traveling you MUST retain exclusive control of the equipment at all times and you MUST not let the equipment be used by anyone in the foreign country.

    Links:

    Research Foundation Decision Tree

    Research Foundation: What Principal Investigators Need to Know

    Export Control Training Videos:

     


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