The primary United States regulations controlling export activities are the International Traffic in Arms Regulations (ITAR) administered by the Department of State; the Export Administration Regulations (EAR) administered by the Department of Commerce; and the foreign asset control regulations administered by the Office of Foreign Assets Control (OFAC) in the Department of the Treasury.
If an activity is controlled under the export regulations, then a license or other approval is needed from the relevant agency unless an exemption applies. Even if approval is not needed, there might be requirements for government review prior to conduct of the activity, for giving notice to the government, or for keeping special records. Also, if an activity is controlled, there likely will be restrictions as to who can participate in the activity.
There are potentially severe civil and criminal penalties, including fines and imprisonment, for violating the export laws. Both the organization and the individuals involved are subject to these penalties.
What is controlled and considered an export?
Under both the EAR and ITAR, transferring information ("technical data"), a physical item, or a computer program to a foreign country is an export. This includes making information or computer software available over the Internet. Providing controlled information to a foreign person in the United States would also be deemed to be an export. A deemed export might take place verbally, in writing or by allowing a foreign person access to a physical item, such as equipment or devices, or computer software from which the person can obtain the controlled information from inspection or use.
The export regulations also control certain services, even if all of the information used or transferred in association with those services is publicly available and not otherwise controlled under the regulations. For the most part, such controlled services have to do with assistance for military or space projects, assistance with encryption commodities or software, or assistance to embargoed countries.
The export regulations have a variety of exclusions and exceptions. For universities, a very important exclusion is for certain publicly available information, including among others, exclusions for information resulting from fundamental research activities or transferred in certain educational activities.
Contractual restrictions on the dissemination of research results, e.g., sponsor approval before publication is allowed, or the participation of foreign nationals in research projects would generally eliminate the information resulting from such research projects from being considered publicly available and thus would eliminate the fundamental research exclusion.
As a consequence, particular care must be exercised in the negotiation and acceptance of research projects that may be subject to restrictions on the export (dissemination) of such data and information. A more detailed delineation of the provisions of these Acts and a discussion of their consequences for sponsored research at the University of Michigan is provided in Export Control Regulations and Restrictions on Access by Foreign Nationals.
The University may accept research agreements that:
If the sponsor exercises further restrictions on the publication of these data or on the access to, or the participation in, the research by foreign nationals, the University may elect to decline or terminate the agreement if these restrictions are deemed unreasonable under the circumstances. Any agreement that goes beyond these basic parameters--which specifically indicates that the technical data resulting from the project shall be subject to export control and/or reserves sponsor approval in connection with the hiring of foreign nations--must be evaluated on a case-by-case basis through established University procedures.
Reviewed: December, 2004
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