Winfred M. Phillips, Vice President for Research
Federal laws restricting exports of goods and technology can impact research training, and other activities conducted by university faculty. Export control laws apply not only to the actual export of goods and technology outside the United States, but also to the disclosure of certain technical data or information to foreign persons while in the United States (referred to as “deemed exports”).
Universities are required to comply with these regulations. Individuals who violate export regulations are subject to civil and criminal sanctions (including fines and/or prison sentences for individuals) as well as administrative sanctions (loss of research funding or export privileges). Therefore, it is vitally important that university faculty and administrators understand their obligations under these regulations and adhere to them.
There are two main bodies of export control law. One is implemented by the U.S. Department of Commerce through its Export Administration Regulations (EAR) and is concerned primarily with commercial goods that may also have military or strategic applications (known as dual use items). The second is implemented by the U.S. Department of State through its International Traffic in Arms Regulations (ITAR) and is concerned primarily with military articles and services. Related to both the EAR and the ITAR are the laws pertaining to trade with embargoed or sanctioned countries, which are administered by the Treasury Department’s Office of Foreign Assets Control (OFAC).
The purpose of all of these regulations is to restrict exports of goods and technology that could have an adverse impact on the United States economy, contribute to the military potential of international adversaries, or otherwise interfere with United States foreign policy objectives. Because export control regulations restrict the sharing of goods and technology, they may conflict with the University’s tradition of academic freedom and openness in research and present challenges that are more likely to occur with heightened concerns about national security.
Exclusions or Exemptions
While export controls apply to virtually all fields of science and engineering, they do not have an impact on all university research because of the existence of several significant exclusions or exemptions:
* In general, information that is readily available and accessible to the public is not subject to export control laws. The EAR use the term “publicly available,” while the ITAR use the term “public domain.” This category includes information that is or will be published in periodicals, books, or electronic media, that is readily available at public or university libraries, or that is released at open conferences, seminars, or trade shows, as well as patents and open (published) patent applications.
* A specific category of publicly available information that is excluded from export controls and is particularly relevant to universities is “fundamental research.” As used in export control regulations, the term “fundamental research” refers to both basic and applied research in science and engineering. It generally will not be subject to export control laws provided the research is carried out openly and without restrictions on publication or access to, or dissemination of, the research results. This fundamental research exclusion applies primarily to “deemed exports” (transfers of information to foreign persons inside the United States). It enables the conduct of fundamental research (collaborations, seminars, conferences, informed scientific exchanges) to proceed largely unfettered by the restrictions that might govern other exchanges of scientific information.
* Another category of publicly available information that is exempted from export control laws is educational information. This includes the sharing of general scientific, mathematical or engineering information commonly taught in colleges and universities through catalog courses and associated teaching laboratories.
* In addition to excluding publicly available information, the ITAR provides an employment exemption that allows universities to disclose technical data to foreign nationals in the United States, even though such disclosure might normally require a license as a deemed export, provided those persons are the full-time, bona fide employees of the university, have a permanent home in the United States during their employment, are not nationals of certain countries the State Department has designated as terrorist countries, and the university informs the employees, in writing, that they may not disclose technical data to other foreign nationals without the prior authorization of the State Department.
If your research or other activities involve information that may be covered by export control laws and none of these exclusions apply, then you may be required to obtain a license before releasing any information to foreign nationals. The licensing process is difficult and lengthy and may result in substantial delays to your project. It is essential that you begin your review process early. If you have any questions or need assistance, you can find additional information on the General Counsel’s website at http://www.generalcounsel.ufl.edu/ExportControl.htm or you may contact Dr. Tom Walsh, Director of Sponsored Research and Compliance at 392-3516.