TO:
University Colleagues
FROM: Stephen
W.S. McKeever, Vice President for Research
SUBJECT: Export Control Laws and Regulations
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. They are
the law of the land. As such,
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
The regulations cover virtually all
fields of science and engineering.
However, they prohibit the unlicensed export of only certain
materials or information[1]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. A few items deserve special
emphasis:
The vast majority of exports do not
require government licenses. Only
exports that the
(note that some controlled exports
don't require a license). Export
controlled transfers
usually arise for one or more of the
following reasons:
á
The
nature of the export has actual or potential military applications or economic
protection issues
á
Government
concerns about the destination country, organization, or individual, and
á
Government
concerns about the declared or suspected end use or the end user of the export
Even if an item appears on one of
the lists of controlled technologies, generally there is an
exclusion for fundamental research
(as long as there are no restrictions on publication of
the research or other restrictions
on dissemination of the information) or, in some cases as
long as the research or information
is made public or is intended to be made public.
When an item is controlled, a license
may be required before the technology can be exported. This requirement relates not only to tangible
items (prototypes or software) but also to the research results themselves.
Further, the term "export" can mean not only technology
leaving the shores of the United States (including transfer to a U.S. citizen
abroad whether or not it is pursuant to a research agreement with the U.S.
government), but also transmitting the technology to an individual other than
a U.S. citizen or permanent resident within the United States.
Even a disclosure to a foreign researcher or student in an OSU laboratory
is considered a "deemed export".
Under
the ITAR, there are certain countries where it is the policy of the United
States generally to deny licenses for the transfer of these items. These countries
are Belarus, Cuba, Iran, Libya, North Korea, Syria, Vietnam, Burma, China,
Haiti, Liberia, Somalia, and Sudan.
Clearly most of the research activities in which OSU is involved are excluded
from export controls because OSU can assert the fundamental research exclusion.
However, when this is not the case (such as when one needs to export
a tangible research item, such as a prototype or software) it is critically
important to begin the process of seeking a license from either the Department
of Commerce or State (as applicable) early, since it can take as long as six
months to receive a license after the submission of the license application.
There is more explicit general information available on the Office of
University Research Services website under the Export/Import Regulations link
at: http://research.okstate.edu/.
For questions or further information, the OSU contact point is Jada Bruner
Gailey, extension 744-9995 or email jada.gailey@okstate.edu