Export Controls at UNH: The Basics

Export Controls at UNH:


The Basics

The Purpose of this Module

What are US Export Controls?

Export Controls are a complex set of laws and implementing regulations through which the U.S. Government controls the physical export of, and limits access by certain foreign entities and foreign persons to, sensitive equipment, software, technical data, technology and services, in order to promote several of the Government’s objectives and interests, such as:

UNH Compliance with Export Controls

The University of New Hampshire intends to comply fully and completely with all U.S. Export Control laws and regulations.

Certain elements of Export Control compliance may seem to conflict with traditional values and practices of an academic culture in that they tend to discourage free and open exchange of information and they institutionalize barriers to collaboration with foreign colleagues. However, Export Control laws apply to all activities and technologies –not just sponsored research– and they constitute a major element of the University’s overall compliance program. Violations can result in significant civil and criminal penalties for the individual as well as the institution.

Why do UNH researchers, faculty, staff and students need to know about Export Controls?

Researchers are on the front-line of Export Control issues because they define the elements of a research project, which in turn establish how Export Controls apply to that project (e.g., technologies under consideration and involvement by foreign personnel).

Why do UNH researchers, faculty, staff and students need to know about Export Controls? (Cont.)

In addition to the considerations concerning research projects, Export Controls can impact scholarly activities by limiting:

The European Union, Japan and other international governments also have similar export control laws and regulations.

US EXPORT CONTROL REGULATIONS

There are three major regimes of U.S. Export Control regulations that may impact University research and instruction:

In addition, researchers, faculty and staff at UNH should be aware that there are additional federal statutes and regulations that govern the export of specific equipment, materials, and technology, such as regulations of the U.S. Department of Agriculture concerning animals, plants and “select agents,” and the U.S. Department of Energy and Nuclear Regulatory Commission concerning nuclear materials, technology and assistance to foreign nuclear activities.

Export Administration Regulations (EAR)

The U.S. Department of Commerce, through its Bureau of Industry and Security (BIS), administers the Export Administration Regulations (EAR) (codified at 15 CFR §§730 - 774). The EAR governs the export or transfer of “dual use” items; that is, materials, technology, and software that may have both military and significant commercial/civilian applications (e.g., acoustic systems, lasers, and magnetometers).

In effect, unless subject to another agency’s jurisdiction (e.g., ITAR controlled) any item made in the U.S. and/or containing U.S. origin technology or software is subject to regulation under the EAR.

Export Administration Regulations (EAR) (Cont.)

Items for which export is controlled under the EAR are identified in the Commerce Control List (CCL) with a 5-digit alphanumeric sequence (e.g., 7A994). The CCL is organized into ten broad categories of technology,

EAR Commodities
Category 0 - Nuclear Materials, Facilities, and Equipment [and Miscellaneous Items]
Category 1 - Special Materials and Related Equipment, Chemicals, “Microorganisms,” and “Toxins”
Category 2 - Materials Processing
Category 3 - Electronics
Category 4 - Computers
Category 5 Part 1 - Telecommunications
Category 5 Part 2 – “Information Security”
Category 6 - Sensors and Lasers
Category 7 - Navigation and Avionics
Category 8 - Marine
Category 9 - Aerospace and Propulsion

and each category includes five product groups.

Product Groups
A: Systems, Equipment and Components
B: Test, Inspection and Production Equipment
C: Material
D: Software
E: Technology



The export of items listed in the CCL may be subject to one or more different “Reasons for Control.”

Reasons for Control
Chemical & Biological Weapons (CB)
Nuclear Nonproliferation (NP)
National Security (NS)
Missile Technology (MT)
Regional Stability (RS)
Firearms Convention (FC)
Crime Control (CC)
Anti-Terrorism (AT)

Depending on the item and reason for control, a license may be required for export to specific individual country destinations or end-uses, unless one of several exemptions is applicable to the export.


Items that do not appear on the CCL but are still controlled under the EAR are classified as “EAR99,” and may be exported without a license to most destinations.

International Traffic in Arms Regulations (ITAR)

The U.S. Department of State, through its Directorate of Defense Trade Controls (DDTC), administers the International Traffic in Arms Regulations (ITAR) (codified at 22 CFR §§120 - 130). The ITAR governs the provision of “defense services” and the export of defense articles that are inherently military in character, or “specially designed” for military applications and enumerated on the U.S. Munitions List (USML). Defense items and defense services identified on the USML are items, technologies, software, and services with primary specific military uses or purposes. The USML has 21 different categories. A license is required for export of defense articles and services regulated by the ITAR to any country outside the U.S.

Sanctions and Embargoes

The U.S. Department of the Treasury, through its Office of Foreign Assets Control (OFAC), administers the U.S. embargoes and sanctions programs (codified at 31 CFR §§500 - 599). These programs regulate the transfer of items and/or services of value to embargoed nations; they impose trade and travel embargoes aimed at controlling terrorism, drug trafficking and other illicit activities; and they prohibit payments to nationals of sanctioned countries, as well as some specific entities and individuals -- both public and private sector and private citizens, in some cases. The sanctions and embargoes change over time both with respect to countries impacted and the scope of the specific sanctions.

To engage in such activities in a country or with an individual subject to sanctions or an embargo requires a license from OFAC, even if those activities otherwise would be allowed under the EAR or ITAR. In most cases, application for OFAC licenses are subject to a government policy of denial.

IMPORTANT EXPORT CONTROLS DEFINITIONS

Export

In the context of Export Control regulations, the term “Export” is more expansive than the prevailing concept of a tangible article being shipped out of the United States. As defined in the EAR, an “export

Reference: 15 CFR § 734.2(b)(1); see also 22 CFR § 120.17 for ITAR-controlled items.

” is an actual shipment or transmission of EAR-controlled items out of the United States, or the release of EAR-controlled technology or software to a foreign national (a “deemed export,” defined next), whether such release occurs in the U.S. or elsewhere.

Deemed Export

Any release of Export-Controlled technology or source code to a Foreign Person is “deemed

Reference: 15 CFR §734.2(b)(2)(ii); see also 22 CFR §120.17 for ITAR-controlled items.

” to be an export to the home country or countries of that person. Thus, technology or software source code may be deemed to be exported even if it never physically leaves the borders of the United States.


Deemed exports commonly take place through an oral or written disclosure of information or through visual inspection -- including email, telephone conversations, websites, laboratory tours, and foreign research collaborations. Deemed exports are the principal Export Control issue facing university researchers.

If a license is required under the EAR or ITAR for the physical export of technology or software source code to a given foreign country, a license is also required for the deemed export (i.e. release to a Foreign Person who is a citizen).

Thus, an “Export” includes:

“Release”

Export-Controlled technology or software is “released

Reference: 15 CFR § 734.2(b)(3); see also 22 CFR § 120.17 for ITAR-controlled items.

” for export through:

  1. Visual inspection by Foreign Persons of U.S.-origin equipment and facilities;
  2. Oral exchanges of information in the United States or abroad; or
  3. The application to situations abroad of personal knowledge or technical expertise acquired in the United States.

Re-Export

Re-export

Reference: 15 CFR § 734.2(b)(4).

means the export of a controlled item from one foreign country to another foreign country; or release of Export-Controlled technology or software to a Foreign Person outside the United States.

It is a violation of Export Controls regulations to export an item to an allowed foreign country when the exporter knows (or reasonably should know) that the item will be re-exported to a foreign country that would require a license.

U.S. Person

Reference: 15 CFR § 744.6(c); see also 22 CFR § 120.15 for ITAR-controlled items.

Any U.S. citizen, lawful permanent resident (a/k/a “green card” holder) of the U.S., or an individual who has been granted asylum or refugee status in the U.S.

Reference: 8 U.S.C. § 1324b(a)(3).



This definition also includes any corporation, society, or other entity or group that is incorporated or organized to do business in the U.S., and any federal, state, or local government entity in the U.S.

Thus, a “Foreign Person

Reference: 22 CFR § 120.16.

” is anyone who is not a U.S. Person.

EXCEPTIONS TO EXPORT CONTROLS

Any information, technology, technical data, and software, that cannot be freely shared, distributed, or published is likely to be subject to Export Controls.

However, it is important to recognize that the EAR and ITAR do not apply to all exports and deemed exports: Both the EAR

Reference: 15 CFR § 734.3(b)(3).

and ITAR

Reference: 22 CFR § 125.4.

exclude large classes of “publicly available” items from their scope of regulation.


EXCEPTIONS TO EXPORT CONTROLS (Cont.)

Specifically, “publicly available

Reference: 15 CFR § 734.3(b)(3), and 22 CFR § 120.11.

” technology and software are not subject to Export Control regulation. This includes technology, technical data, information and software that:


Note: Even if one of these exclusions or exemptions from the EAR and ITAR applies, the OFAC sanctions/embargoes will still apply.

Fundamental Research Exclusion (FRE)

As defined in the regulations, “Fundamental Research” includes basic or applied research in science and/or engineering at an accredited institution of higher learning in the United States where the resulting information is ordinarily published and shared broadly in the scientific community. In the case of the ITAR, the expectation is that the resulting information has been or is about to be published. The expectation that research results will be broadly shared marks Fundamental Research as distinct from research results that are restricted for proprietary reasons (industrial development, design, production, and product utilization) or pursuant to specific U.S. government access and dissemination controls (for national security reasons).

National Security Decision Directive 189 (NSDD-189), signed by President Reagan in 1985, set the basis for the FRE as official national security policy for the guidance of the defense, intelligence, and foreign policy establishments of the U.S. government.

Educational Exemption

The ITAR

Reference: 22 CFR §120.10(b).

exempts information concerning general scientific, mathematical, or engineering principles commonly taught in schools, colleges, and universities. Similarly, the EAR

Reference: 15 CFR § 734.9.

exempts information released by instruction in catalog courses and associated teaching laboratories of academic institutions. Dissertation research must meet the standards for “fundamental research” to be exempt.

IMPACT OF EXPORT CONTROLS ON UNH

Most activities at UNH will fall under the fundamental research exclusion or education exemption, and thus fall outside of the Export Control requirements of the regulations; that said, compliance often requires the University to document its determination that an exclusion/exemption is being used appropriately.

Similarly, certain activities carried out in support of UNH’s research and education objectives should be considered export compliance red flags, warranting discussions with UNH’s Export Controls personnel (listed at the end of this module).

IMPACT OF EXPORT CONTROLS ON UNH (Cont.)

These compliance “red flags” include:

IMPACT OF EXPORT CONTROLS ON UNH (Cont.)

If an activity (research, coursework, presentation, travel, etc.) does not qualify as Fundamental Research, or for an education or publicly-available exception, UNH’s Export Controls Staff will work with the UNH faculty/staff member to assess the compliance burden and determine if the activity can proceed. If the activity can be managed without any actual or “deemed” exports and without disruptive restrictions on the use of facilities by faculty, staff and students, regardless of their nationality, it may be possible to undertake the activity without a license even if it is outside the exclusion. Otherwise, it may be necessary for the University to secure an export license from the appropriate government agency before the activity can proceed.

Some Cautions in Sponsored Research

Acceptance of such restrictions will negate any application of the Fundamental Research exclusion, and requires specific approval of the UNH Senior Vice Provost for Research.

International Travel & Activities

International travel and activities are an important part of UNH’s research and educational programs. It is UNH Policy that every traveler going abroad on University business must complete the International Travel Registry.

International travelers also need to consider that there are important regulations regarding certain proposed destinations, equipment they plan to take along with them, the activities they will undertake while traveling, and the individuals and/or institutions with whom they plan to collaborate. Government licenses may be required for certain exports, collaborations, or exchanges of information -- and federal regulations and embargoes/economic sanctions may prohibit collaborations with certain universities, companies, and individuals altogether.

International Travel & Activities (Cont.)

From an export compliance perspective, travelers should consider three principal matters:

Consequences of Violating Export Controls Regulations or OFAC Sanctions

Violation of Export Control regulations is serious (and expensive) and can result in criminal and/or civil penalties against you, as an individual, as well as against UNH. These penalties may include, but are not limited to, loss of export privileges, significant monetary fines for institutions and individuals, and lengthy periods of incarceration for individuals.

Staff within the UNH Office of Contracts and Export Controls (CEC) and Research Integrity Services (RIS) are responsible for developing and implementing export compliance measures for all UNH activities and are available to assist you in complying with these regulations.

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Contact Us

Compliance is an institution-wide effort, and we are here to help!
Contact us if you have any questions regarding Export Controls at UNH.

Victor Sosa, Director
UNH Export Controls and Contracts
victor.sosa@unh.edu
603-862-2001
Melissa McGee, JD
Compliance Officer
melissa.mcgee@unh.edu
603-862-2005