Export Control Laws and Regulations

Probably by now, many of you are familiar with the term Export Controls. They are U.S. laws and regulations, implemented by three branches of the federal government. They essentially govern distribution of materials, information and technology to countries or citizens of foreign countries, including international students. These regulations apply to research and other activities regardless of the source of funding. The U.S. government considers this issue very serious and has created regulations across a broad spectrum. The exchange of technology, services and scientific information is viewed as having significant potential to disrupt U.S. foreign policy and national security.

It is important that WPI's research community understand the intent and do its best to comply with the letter and spirit of the regulations. A range of penalties and sanctions exist for individuals, and institutions, that do not comply with the regulations.

The best summary of government agencies with export control jurisdiction would include the following:

Department of State
International Traffic in Arms Regulations (ITAR) regulates exchange and security of defense articles, services and related technical data determined inherently military in character and identified on the U.S. Munitions List. The very extensive list can be accessed at Directorate of Defense Trade Controls.
Department of Commerce
Export Administration Regulations (EAR) regulates what are referred to as "dual use" articles, i.e., potentially commercial as well as military or security applications. (Navigation devices, information security, propulsion systems…..are just a few examples of "dual use" technologies.) Categories of such items are available at Export Administration Regulations Database.  For a thorough description of Export Controls and Deemed Exports, the U.S. Department of Commerce, Bureau of Industry and Security has an excellent website which includes training modules for the Essentials of Export Control and more detail on the referenced Deemed Exports which can be found at the Bureau of Industry and Security Seminars and Training.
Department of Treasury
Office of Foreign Assets Control (OFAC) administers and enforces economic and trade sanctions based on U.S. foreign policy and national security goals. These regulations are not directed at specific technologies but rather the "end user" embargo concept… certain foreign countries and suspected terrorists. Two websites relevant to the listing of targeted countries and potential terrorists are: Sanctions Program Summaries and SDN List.

Deemed Exports: Defined and Explained

The Export Administration Regulations (EAR) define a deemed export as the release of technology of source code subject to the EAR to a foreign national in the United States. Such a release is deemed to be an export to the home country of the foreign national.

Any foreign national is subject to the deemed export rule except:

Treatment of Dual Citizenship is handled this way. Generally, a foreign national’s most recently obtained citizenship governs the licensing requirement. For example, if an Indian foreign national becomes a citizen of the United Kingdom, but retains Indian citizenship, the most recent citizenship is with the United Kingdom and releases of technology would be viewed as releases to the United Kingdom. Permanent Residency is handled similarly, as the country of permanent residency becomes the country receiving the transfer of technology.

There are many ways that a deemed export can take place. Export controls will apply if a foreign national uses or has access to a controlled item for the following reasons: operation, installation, maintenance, repair, overhaul and refurbishing.

Situations that can involve release of U.S. technology or software include:

Researchers at Worcester Polytechnic Institute need to be aware of the implications of passing export controlled information on to a deemed export. As an institution that welcomes foreign collaboration, we must be vigilant in assuring compliance with Export Control laws and regulations. Many of the contract and grant agreements received by WPI contain specific references to the federal laws governing exports. In certain situations, foreign nationals may be precluded from participating on a research project or licensing by the Bureau of Industry and Security (BIS) may be required for participation.

Exclusions from Export Controls

Public Domain Information

Under both ITAR and EAR regulations, some information is automatically excluded from Export Controls. The exclusion is primarily for information (ITAR), including some forms of software (EAR) that is in the public domain and publicly accessible through:

Fundamental Research

Research as defined below has exclusions applying to information (ITAR) and software (EAR) that:
Note: As explained in the referenced PowerPoint presentation, this exclusion is lost if a researcher inherits export controls from a sponsor and restricts participation in the research or access and disclosure of the results.

Educational Information Exclusion

Essentially both EAR and ITAR regulations exclude export controls for instructional content of curriculums for all students, including foreign nationals, that exists in general science, math and engineering principles commonly taught through courses, and associated teaching laboratories. Further, the courses must be listed in course catalogs of colleges and universities (ITAR/EAR).

Summary

Export Controls are a very extensive set of regulations. Their intent is clear and certainly their importance heightened by the political world environment since the terrorist attacks on September 11, 2001. As stated above, it is very important that WPI employees, especially its researchers, are familiar and comply as thoroughly as possible with export laws and regulations.

Resources

In addition to the links to the Departments of State, Treasury and Commerce regarding ITAR and EAR regulations above, you should be aware of the following resources:

         Michael Curley, mjcurley@wpi.edu, Compliance Office, ext. 6919

         Christina DeVries, cdevries@wpi.edu, Office of Research Administration, ext. 6716

         Franc Lemire, flemire@wpi.edu, Office of Research Administration, ext. 5811

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Last modified: August 29, 2008 11:09:12