Notes for Faculty & Researcher’s Relating to Export Regulations: ITAR and EAR:
Export control laws, federal laws implemented both by the Department of Commerce through its Export Administration Regulations (EAR) and the Department of State through its International Traffic in Arms Regulations (ITAR), have been in existence for more than twenty years. Institutions of higher education and their employees are required to comply with these laws and regulations. Criminal sanctions (including money and/or prison sentences for individuals) can apply in the case of violations.
Following the events of September 11, the export control regulations have become more prominent and scrutiny concerning the level of compliance with these regulations has heightened. It is important that faculty and other researchers in Kansas State University departments, laboratories and centers understand their obligations under these regulations and adhere to them.
The regulations cover virtually all fields of science and engineering. However, they prohibit the unlicensed export of only certain materials or information for reasons of national security or protection of trade. In the case of academic or research institutions, there is an exclusion for fundamental research, the results of which are or are about to be or, in some cases, ordinarily are publicly available. Understanding three basic concepts related to export controls is essential: (1) the nature of the technology that is export controlled and how it is recognized, (2) the fundamental research exclusion, and (3) what is a deemed export.
The sponsored research project identified below involves the use of Export-Controlled Information (defined below). As a result, the project implicates the International Traffic in Arms Regulations (ITAR) (under the jurisdiction of the State Department) or the Export Administration Regulations (EAR) (under the jurisdiction of the Department of Commerce). It is unlawful under the Export Regulations to send or take export-controlled information out of the U.S., disclose, orally or visually, or transfer export-controlled information to a foreign person inside or outside the U.S without proper authorization. A foreign person is a person who is not a U.S. citizen or permanent resident alien of the U.S. The law makes no exceptions for foreign graduate students.
In general, Export-Controlled Information means activities, items and information related to the design, development, engineering, manufacture, production, assembly, testing, repair, maintenance, operation, modification, demilitarization, destruction, processing or use of items with a capacity for substantial military application utility. Export-controlled information does not include basic marketing information on function or purpose, general system descriptions, or information concerning general scientific, mathematical or engineering principles commonly taught in schools, colleges and universities or information in the public domain. It does not matter if the actual intended use of Export-Controlled Information is military or civil in nature.
Technical information, data, materials, software, or hardware, i.e.; technology generated from this project, must be secured from use and observation by unlicensed non-U.S. citizens. Security measures will be appropriate to the classification involved.
Reasonable Care. Researchers may be held personally liable for violations of the ITAR and the EAR. As a result, they should exercise care in using and sharing Export-Controlled Information with others. For example, PIs should identify whom among proposed research assistants and collaborators are foreign persons. Unless the State Department grants a license authorizing those persons access to export-Controlled Information, a prerequisite to accessing it is a security clearance. In the absence of that clearance, PIs should not leave Export-Controlled Information unattended. They should clearly identify Export-Controlled Information and make only that number of copies of the material as is absolutely necessary. PIs also should store Export-Controlled Information in a locked file cabinet or drawer or under password protected computer files. Finally, PIs should avoid moving the information from one location to another.
Some examples of security measures are as follows:
Penalties. The penalty for unlawful export and disclosure of Export-Controlled Information under the ITAR is up to two (2) years imprisonment and/or a fine of one hundred thousand dollars ($100,000), and unlawful export and disclosure of information controlled under the EAR, the greater of (i) a fine of up to one million dollars ($1,000,000) or (ii) five times the value of the exports for a corporation and imprisonment of up to ten years and/or a fine of up to two hundred fifty thousand dollars ($250,000) for an individual.
United States Export Control Laws
Export control decisions depend on a correct understanding of the following terms. The official regulatory definition should be consulted in specific applications.
Questions for PI:
After reviewing the information regarding ITAR and EAR, do you feel that the work that will be performed by you under this Contract is covered by ITAR or EAR? (See overview discussion regarding export-controlled information)
Will any foreign nationals be appointed to perform the work, or have access to the information generated by the work to be performed under this Agreement?
If yes, then in all likelihood, an export license will need to be obtained, and you may be required to obtain security clearances for any foreign nationals.
The exception to these regulations resides in the notion that if we can claim that this activity is fundamental research and public domain procedures (methodologies previously published and results will be published without restriction) exist, then no export license will be required. This is why PreAward Services goes to great lengths to attempt to exclude from sponsored project contracts, restrictions that would deem an activity to be other than “Fundamental Research”.
How does Export Control Regulations affect faculty who submit requests through the Confidential/Sensitive Research Committee (CSRC)?
Requests submitted to the CSRC and the CSRC’s subsequent approvals/decisions could directly affect the faculty and their projects. A positive decision on the part of the CSRC to grant an exception to the “fundamental research” criteria, by definition, automatically classifies the activity in question to be under the auspices of one of the federal export-control oversight agencies. Given this, when a decision is granted by the CSRC to grant an exception to the standard publication procedures, then the faculty must be directed toward guidance and resources regarding their responsibility to comply with the applicable export regulations, including the classification of the technology, determination of appropriate oversight agency, and the subsequent application for export license, or license exception, whatever the case might be.