Training - Researcher 2
Frequently Asked Questions
What is an export?
An export is:
- Any oral, written, electronic or visual disclosure, shipment, transfer or transmission outside the United States to anyone, including a U.S. citizen, of any commodity, technology (information, technical data, or assistance) or software/codes
- Any oral, written, electronic or visual disclosure, transfer or transmission to any person or entity of a controlled commodity, technology or software/codes with an intent to transfer it to a non-U.S. entity or individual, wherever located (even to a foreign student or colleague at WKU)
- Any transfer of these items or information to a foreign embassy or affiliate
What are Export Control Laws/Regulations?
Export Control Laws are federal regulations that restrict the transfer of certain materials, technology, related technical data, and certain services outside the United States in the interest of protecting the national security and domestic economy. These laws have been in existence for many years, but the recent events of 9/11 have resulted in heightened concerns about national security and stricter interpretation and enforcement of export control laws.
Who controls exports?
Most export control issues fall under the jurisdiction of the Department of Commerce
through its Export Administration Regulations (EAR, see 15 CFR 730-774), the Department of State under the International Traffic in Arms Regulations (ITAR, see 22 CFR 120-130), and the Department of Treasury through its Office of Foreign Assets Control (OFAC).
EAR is primarily responsible for controlling the export of dual use technologies. In other words, items that are used, or have the potential to be used, for both military and non-military purposes that could adversely affect national security if exported. ITAR regulates military or defense-related articles, technologies, and services. OFAC controls the transfer of items and services of value to embargoed nations and imposes trade sanctions, and trade and travel embargoes aimed at controlling terrorism, drug trafficking and other illicit activities.
Is anything excluded from export control laws?
There are several exclusions, but two are particularly relevant to academic research: the fundamental research exclusion and the public domain exclusion. These exclusions can become void, if researchers make side agreements that contain publication restrictions or restriction on who may participate in the research. It is crucial that you do not enter into any side agreements that mention export controls without guidance from the Office of Research and/or Office of Research Integrity.
What is considered fundamental research?
Fundamental research (as it pertains to export controls) includes basic or applied research in science or engineering at an accredited institution of higher learning in the U.S. where the information is ordinarily published and shared openly in the scientific community or is about to be published.
What is considered published information?
EAR and ITAR have different regulations on what is considered published information. For EAR,
information is considered published if it has been, is about to be, or is ordinarily
published. The ITAR requirement is that the information has been published.
Information is considered published when it appears or is generally accessible to the interested public through the following ways:
- Electronic or any other media available for general distribution to any member of the public
Published or ordinarily published material also include the following:
- Readily literature available at libraries open to the public
- Issued patents
- Releases at an open conference, meeting, seminar, or trade show
A conference is considered "open" if all attendees are allowed to take notes and make a person record of the presentations. In all cases, access to the information in question must be free or for a fee that does not exceed the cost to produce and distribute the materials or conduct the conference.
How will I know if export controls apply to my grant or contract?
Export controls apply if the topic of the research appears on either the ITAR Munitions List or the EAR Commerce Control List. ITAR places strict controls on the export of "defense articles" and "defense services." Defense articles include any item or technical data on the United States Munitions List (USML), and defense services include the furnishing of assistance to foreign persons, whether or not in the United States, with respect to defense articles, and the furnishing of any technical data associated with a defense article.
The following categories of defense articles and services are included on the ITAR Munitions List (USML):
- Artillery projectors and armaments
- Launch vehicles, guided missiles, ballistic missiles, rockets, torpedoes, bombs, and mines
- Explosives, propellants, incendiary agents, and their constituents
- Vessels of war and special naval equipment
- Tanks and military vehicles
- Aircraft and associated equipment
- Military training equipment
- Protective personnel equipment
- Military electronics
- Fire control, range finder, optical and guidance and control equipment
- Auxiliary military equipment
- Toxicological agents and associated equipment
- Spacecraft systems and associated equipment
- Nuclear weapons, design, and testing equipment
- Classified articles, technical data and defense services not otherwise enumerated
- Directed energy weapons
- Submersible vessels, oceanographic and associated equipment
- Miscellaneous articles not listed above with substantial military applicability and which were designed or modified for military purposes.
More details on the Munitions List
The EAR Commerce Control List is more complicated. Restricted technologies are divided into ten broad categories, and the specific restrictions depend on the specifics of the technology and where it's being exported. Just so you know, here are the categories:
0 - Nuclear Materials, Facilities and Equipment and Miscellaneous
1 - Materials, Chemicals, ''Microorganisms,'' and Toxins
2 - Materials Processing
3 - Electronics
4 - Computers
5 - Telecommunications and Information Security
6 - Lasers and Sensors
7 - Navigation and Avionics
8 - Marine
9 - Propulsion Systems, Space Vehicles and Related Equipment.
What kinds of projects raise export control concerns?
Any research activity may be subject to export controls if it involves the actual export or "deemed" export of any goods, technology, or related technical data that is considered dual use (commercial in nature, but can be used in military applications as well) or inherently military in nature.
Projects in the following areas have a high risk to being subjected to export controls:
- Space sciences
- Computer science
- Biomedical research with lasers
- Research with encrypted software
- Research with controlled chemicals, biological agents, and toxins
In addition, any of the following may subject your research to export control regulations:
- Sponsor restrictions on the participation of foreign national in the research
- Sponsor restriction on the publication or announcement of research results
- Confirmation from the sponsor that export controlled information or technology will be furnished for export of controlled use in the research
- The physical export of controlled goods or technology is expected
What happens if we do not comply with export control laws?
The consequences for noncompliance are very serious for both the university and the researcher.
- Criminal: up to 10 years in prison
- Civil: seizure and forfeiture of articles, revocation of exporting privileges, fines of up to 500K per violation
- Criminal: $50K- $1M or five times value of export, whichever is greater, per violation, up to 10 years in prison
- Civil: loss of export privileges, fines $10K-$120K per violation
Is any of the operating software developed by Microsoft export controlled? I usually take my laptop out of the country. Should I be concerned?
Maybe. Microsoft provides information under their website listing their different software products that are subjected to export regulations.
What do I need to do?
You need to inform and educate yourself about export controls. Every dean, department head, PI, and research staff member should have a fundamental understanding of the subject to be able to know when to raise questions and alert WKU to a possible export control issue. The information on this website has been developed for that purpose. Also, you are strongly encouraged to attend one of the Export Controls workshops, conducted by the Office of Sponsored Programs. The workshop is offered once a semester and is vital for every researcher who may be susceptible to export control regulations. Please call (270) 745-4652.
What is involved in obtaining an export license?
A license application must be submitted to the Department of Commerce or the Department of State. Contact Paul Mooney and he will initiate the request for an export license and provide you with the necessary support to address export control and license concerns. The key is to start the process early. Typically, it normally takes 3-6 months to secure a license to export controlled materials from the U.S. or to transmit them to a non-U.S. citizen or permanent resident within the U.S.
Where can I get help?
At anytime you have a question about export controls and how it applies to your current research project, contact Paul Mooney in the Office of Research Integrity (270) 745-2129.
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