Export Controls at UNH:

The Basics

The Purpose of this Module

• Provide an introduction to the nature, purpose, and scope of the major Export Control regulations in the United States;
• Define key terms and concepts; and
• Identify major impacts of Export Controls on research in institutions of higher education.

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:

• Restricting the export of technologies that have actual or potential military applications
  and could contribute to the military potential of U.S. adversaries;
• Advancing U.S. trade protection and economic goals;
• Implementing U.S. foreign policy, including honoring treaties (such as The Treaty on the Non-Proliferation of Nuclear Weapons [NPT] or the Biological and Toxin Weapons Convention [BTWC]); and
• Preventing the proliferation of weapons of mass destruction and terrorism, particularly to countries, organizations, individuals, end-users or end-uses of concern.

UNH Compliance with Export Controls

The University of New Hampshire (UNH) 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 presentation/discussion of unpublished research at conferences and meetings where foreign nationals may be in attendance;
• Research collaborations with foreign nationals and technical exchange programs;
• Travel to embargoed countries;
• Transfers of research equipment abroad; or
• Laboratory visits by foreign scholars.

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:

• Export Administration Regulations (EAR), administered by the U.S. Department of Commerce;
• International Traffic in Arms Regulations (ITAR), administered by the U.S. Department of State; and
• Country-specific economic and trade sanctions and embargoes administered by the U.S. Department of Treasury’s Office of Foreign Assets Control (OFAC).

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. or containing U.S. origin technology or software is subject to
regulation under the EAR.

Export Administration Regulations (EAR) (cont.)

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)

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 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 many instances, application for OFAC licenses are subject to a government policy of denial.

IMPORTANT EXPORT CONTROLS DEFINITIONS

Export

Deemed Export

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 person who is a citizen of that foreign country).

Thus, an “Export” includes:

• Sending or taking/carrying an Export-Controlled item, material, or technical information out of the U.S.;
• Transferring Export Controlled technical information (including by digital or electronic transmission, such as email or a website download) to a Foreign Person or foreign entity or to a U.S. person you know to be acting on behalf of a Foreign Person or entity;
• Any release or disclosure, including verbal disclosures or visual inspections, of any Export-Controlled technology, software or technical data to any Foreign Person or entity or to a U.S. person you know to be acting on behalf of a Foreign Person or entity; or
• Performing defense services, or the actual use or application of an Export-Controlled technology, in the U.S. or abroad, on behalf of or for the benefit of a Foreign Person or entity.

“Release”

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

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

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.

EXCEPTIONS TO EXPORT CONTROLS

EXCEPTIONS TO EXPORT CONTROLS (cont.)

• Has already been or will be made generally available to the public by being published

  Reference: 15 CFR § 734.7.

  , i.e., in the public domain;
• Arises during, or results from, certain Fundamental Research

  Reference: 15 CFR § 734.8.

  (as discussed further in this module);
• Is released by instruction

  Reference: 15 CFR § 734.3(b)(3)(iii) & 22 CFR § 120.10(b).

  in catalog courses and associated teaching laboratories at academic institutions; or
• Is included in certain patent applications

  Reference: 15 CFR § 734.10.

  .

Note: OFAC sanctions and embargoes may preclude use of any EAR or ITAR exemption that applies to a technology.

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, sets 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

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:

• Traveling abroad with or sending scientific equipment, or confidential, unpublished, or proprietary information or data;
• Traveling with a laptop computer, certain “smart” phones and other personal electronic equipment (such as GPS);
• Travel to embargoed countries;
• Using of third-party Export-Controlled technology or information, especially if it is subject to a confidentiality agreement;
• Involving foreign students or researchers in research using Export-Controlled technology;
• Laboratory visits by foreign scholars;
• Research that includes contractual restrictions on publication and dissemination, or restrictions on access to, or participation by, foreign nationals;
• International financial transactions and international shipments;
• International collaborations and presentations; and
• International field work.

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, or 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

• Anytime UNH accepts confidential or proprietary data, information or software source code from a sponsor during the conduct of a research project, that confidential or proprietary item should always be treated as if subject to Export Controls.
• If the terms and conditions of sponsored project allow to the sponsor the right to prior review and approval of publications describing the results from research, those research results should always be treated as if subject to Export Controls.*

  Limited (e.g., 90 days) prepublication reviews to prevent inadvertent disclosure of a research sponsor’s proprietary information or to insure that publication will not compromise sponsor’s patent rights are allowable and will not negate the fundamental research exclusion.

• Likewise, if a researcher agrees in an informal side arrangement (whether in writing or tacitly) with a sponsor that the results from a study will not be published without prior sponsor approval, or that certain information is confidential or proprietary, these results/information should always be treated as if subject to Export Controls.

*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, Economic Engagement and Outreach.

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 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 Control compliance perspective, travelers should consider three principal matters:

• Their destination
• The business purpose for their trip; and
• The equipment or information they plan to take with them.

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 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 individuals with
complying with these regulations.

Congratulations!

To Certify completion of this training module click on ’Certify Completion’.

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.