Sponsored Programs
Export Controls Law Memo
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The devastating events that occurred on September 11th, 2001, coupled with this country's continuing war on terrorism have brought with them myriad new federal regulations and stronger enforcement of existing regulations for conducting research, most notably export controls, which may affect collaborations with researchers outside the United States. The regulations are subdivided into three categories – International Traffic in Arms Regulations, Export Administration Regulations and Office of Foreign Asset Control Regulations – administered by three separate entities – the State Department, the Commerce Department and the Treasury Department, respectively. Violations of these rules carry both personal (Investigator) and Institutional (The Research Foundation and SUNY) penalties of jail time and monetary fines. The level of university compliance is being scrutinized closely these days due to the intersection of cutting edge science, technology and engineering research with national security, foreign policy and homeland security in university laboratories.
Generally stated, export controls regulate the disclosure, shipment, use, transfer or transmission of any commodity, material, technology, information or software appearing on the U.S. government's controlled technologies lists for the benefit of a foreign person or foreign entity anywhere. Additionally, export controls regulate transactions or the provision of services involving prohibited countries, persons or entities based on trade sanctions, embargoes and travel restrictions imposed by the US Treasury Department (see Foreign Travel Information below). Specifically:
International Traffic in Arms Regulations (ITAR) control the export and temporary import of ITAR controlled military items like defense articles and defense services covered by the U.S. Munitions List (http://pmdtc.org/reference.htm), inclusive of space and satellite technologies.
Export Administration Regulations (EAR) control the export and re-export of dual use (commercial and military/security applications) items appearing on the Commodities Control List (CCL) (www.bxa.doc.gov/licensing/exportingbasics.htm). EAR also covers encrypted software.
Office of Foreign Asset Control Regulations (OFAC) enforces economic and trade sanctions based on U.S. foreign policy and national security goals against foreign targeted countries or entities, terrorists, international narcotics traffickers and those engaged in activities related to the proliferation of weapons of mass destruction. (www.access.gpo.gov/nara/cfr/waisidx_03/31cfr500_03.html)
The targeted countries include those appearing on the T-7 list of terrorism-supporting countries (www.ustreas.gov/offices/eotffc/ofac/sanctions/index.html) and to a lesser extent India, Pakistan, China, Russia and Israel. Please note that individual faculty and staff members should consult with the Office of Sponsored Programs or Grants Management if they intend to have foreign visitors in their labs from any of these countries or are anticipating traveling to or providing services to these countries. Regulatory interpretation is not necessarily transparent: for example, the Treasury Department has recently ruled that if a U.S. faculty member is editing a publication for a collaborator in one of these countries this could constitute an OFAC violation.
There is some good news in all of these burdensome and scary regulations. Even if the research you are conducting appears on the list, export may still be permissible if the "fundamental research exemption" pertains. Fundamental research is defined as basic and applied research in science and engineering conducted at a university located in the U.S. where the resulting information is ordinarily published (EAR) or is published (ITAR) and shared broadly within the scientific community (excluding encrypted software and research conducted outside the U.S.). Please note that for the exemption to be in force, the institution cannot agree to any publication restrictions on an award.
A test scenario: If Prof. A is a faculty member at Stony Brook and he/she is conducting research that appears on the CCL and the research is covered under the fundamental research exemption, he or she should ask a three-pronged question. 1) Is the item on the controlled list? Yes. 2) What country am I exporting to? If it’s not one of the countries referenced/listed above you are in good shape. 3) Who is the intended recipient? If the individual is not a known terrorist or drug trafficker you again are in good shape. Under this scenario, the faculty member would be permitted to export and would be deemed to be a recipient of an EAR99 unilateral license from the Commerce Department. If the responses aren't as clear cut as those above, the faculty member should consult with his/her sponsored programs office for guidance, and that office might have to initiate a license application to the Commerce Department to export. This three-pronged test can be used for ITAR controlled technologies as well.
The Office of Sponsored Programs and the Research Foundation's Central Office have put together quite a bit of documentation to steer faculty in the right direction for compliance with these complex regulations. On the Office of Sponsored Program's website (www.stonybrook.edu/research/spo/export-controls.pdf) you can view a presentation from a prominent D.C.-based law firm that specializes in export control issues. The Research Foundation's Central office has dedicated an entire webpage (www2.rfsuny.org/comply/controls/) to export controls (menu list down left side), which include an Advisory Memo from Executive Vice-President Tim Murphy (see Communications), Frequently Asked Questions, and Decision Trees to test applicability (see Research Guidance). The Chancellor has also sent a notice to University Presidents on the applicability of export controls to SUNY researchers which will be posted on this website in a few days. Should you have any questions concerning this issue please contact Ivar Strand, Director of Sponsored Programs, at 632-4402 or via e-mail at IStrand@notes.cc.sunysb.edu.