Export Controls

Of all of the various rules and regulations that PIs keep at the forefront of their consciousness, our guess is that those concerning export controls are generally tucked away in some dark recess of the mind, rarely, if ever, given consideration.  To be fair, navigating the labyrinthine laws that determine what is and isn’t a subject act requires substantial effort, so PIs can’t be blamed too much for focusing their mental energies on other, more straight-forward matters.  However, running afoul of any export control parameters can result in serious penalties, and thus it is important that everyone be aware of the scope and specifics of all such laws.

The first step would probably be to learn exactly what export controls are.  Specifically, they govern the dissemination of certain information, services and products to foreign nationals and countries, and are encompassed under the areas of national security and foreign trade policy.  The actual “export” can come in many forms, be it an actual physical transfer outside of the United States, a visual presentation of the subject matter, or even an oral or written disclosure.  Before you think that export controls are limited to actions that occur outside of the fifty states, the above-noted actions are also covered when done for the benefit of a foreign person within the United States (referred to as a “deemed export”).  Consequently , even having a conversation with a foreign student in your University lab may be considered a “deemed export” and subject to restrictions.

As far as the actual content of restricted distributions is concerned, export controls generally apply to disclosures have actual or possible military applications, or that may touch on economic protection concerns.  Further, the distribution may be to a foreign place or recipient for whom the Government has concerns, such as those countries currently under some form of U.S. sanction.

Once you’ve sorted through the Who and the What, it’s time to figure out what rules are going to control your actions.  At present, there are three main areas:

International Traffic in Arms Regulations (Department of State) – For inherently military technologies.

Office of Foreign Assets Control (Department of the Treasury) – For dealings with countries subject to embargo, sanction or boycott.

Export Administration Regulations (Department of Commerce) – For technologies that can be used both in civil and military/other strategic applications (“dual use”).

Each of the above has specific regulations concerning what can and can’t be distributed, and have their own processes for determining what actions an interested “exporter” must take before moving forward.

With each law comes, of course, possible exclusions from coverage.  The first is the Public Domain Exclusion, which applies to certain information that has already been made available through publication and dissemination to the public at large.  The second, and to Universities more important, is the Fundamental Research Exclusion (FRE), which applies to information made available through research in science and engineering that is regularly published to the scientific community.

Penalties for failing to comply with the appropriate regulations range from fines to even imprisonment.  Yes, you read that correctly – You could go to prison for running afoul of ITAR, OFAC and/or EAR, and the Roth case should serve as a warning for PIs and departments everywhere.

We’ve done our best to efficiently touch on and summarize the main points and considerations, but we’re fully aware that we’ve only scratched the surface of such a complex issue.  Consequently, our faithful followers are encouraged to do further research on their own to make sure they’re aware of the regulations as well as the policies of their respective institutions.