Compliance - Export Control Regulations
Export Control Regulations (ECR) are a body of law enacted by the federal government to protect national and economic security and advance U.S. foreign policy goals by prohibiting the unlicensed transfer to foreign nationals of items that are subject to trade restrictions or have proprietary, military or economic applications.
A number of federal agencies and departments have a degree of responsibility for administering and enforcing ECR, however, primary jurisdiction resides within the Departments of Treasury, State and Commerce. Specifically:
- The Department of the Treasury Office of Foreign Assets Control (OFAC) administers and enforces economic and trade sanctions against known terrorists, narcotics traffickers and proliferators of weapons of mass destruction as named on the Specially Designated Nationals & Blocked Persons List, and against targeted foreign countries and regimes that are hostile to the U.S. as identified on the Country Sanctions List.
- The Department of State Directorate of Defense Trade Controls (DDTC), through the International Traffic in Arms Regulations (ITAR), controls the permanent and temporary export, re-export/re-transfer, and temporary import of defense articles and defense services covered by the United States Munitions List (USML)(PDF), and restricts exports of any ITAR-controlled items to individuals and entities subject to Foreign Assets Controls or Nonproliferation Sanctions, or identified on the Debarred List, or any OFAC or EAR entity lists.
- The Department of Commerce Bureau of Industry and Security (BIS), through the Export Administration Regulations (EAR), controls the export and re-export/re-transfer of dual-use items covered by the Commerce Control List (CCL), and restricts exports of any EAR-controlled items to individuals and entities subject to Foreign Assets Controls or Department of State Nonproliferation Sanctions, or identified on the Denied Persons Lists, Entity List, Unverified List, or any OFAC or ITAR entity lists.
Impact of Export Control Regulations on University Activities
Export control regulations apply to the transfer of controlled items to foreign nationals by actual shipment out of the U.S., and also by transfer of controlled technology/technical data and/or encryption software by written, oral or visual release or disclosure to foreign nationals both in- and out- side of U.S. borders. Consequently, export controls can impact University activities on-campus as well as abroad, including:
- Payment of compensation, honoraria and contracts to embargoed countries, nationals and entities (OFAC);
- Provision of services to embargoed countries, nationals and entities (OFAC);
- Attendance at or planning of international conferences (OFAC);
- Editing or joint-authoring of articles with nationals of sanctioned countries (OFAC);
- Involvement of foreign students in research in which controlled technology is used (EAR & ITAR);
- Shipment of controlled equipment to foreign countries (EAR & ITAR); and
- Provision of services to foreign nationals, including training in the use of controlled equipment in- or out- side of the U.S. (EAR & ITAR).
Additionally, the Department of Homeland Security requires all new, renewed or amended H1-B, H-1B1 Chile/Singapore, L-1, and O-1A visa petitions filed with the United States Citizenship and Immigration Service (USCIS) include a Certification Regarding the Release of Controlled Technology or Technical Data to Foreign Persons in the United States (PDF). This ‘Deemed Export Attestation’, as it is also known, can affect the University’s ability to hire a candidate of foreign nationality and preclude an employee of foreign nationality from participating in research that involves controlled items.
Recognizing the importance of academic freedom and the sharing of research results to the furtherance of knowledge, the federal government provides exceptions to certain licensing rules under EAR and ITAR (not FAC ) for qualified research conducted at accredited U.S. institutions of higher education. License exceptions are provided for:
- Fundamental Research, defined as basic or applied research in engineering and science where the resulting information is ordinarily published and shared broadly in the scientific community;
- Information that is in the Public Domain, meaning the information is published, generally accessible, and available to the public through sales at newsstands and bookstores, or unlimited distribution at conferences, meetings and trade shows, etc., or is fundamental research;
- Technology for Temporary (‘Laptop’) export where the subject technology is a ‘tool of trade’ for temporary use abroad to conduct fundamental research;
- Educational information released by instruction in courses listed in course catalogs, or through general scientific, mathematical or engineering principles;
- Employment of foreign nationals who are bona fide and full time regular employees.
Important! Although the majority of research conducted at the University of Maine qualifies as fundamental research, neither the fundamental research exclusion nor the public domain exclusion can be invoked for physical goods, software and encryption, research when there is no intent to publish results, research conducted outside the U.S., and research involving persons or countries subject to any sanctions. Likewise, no exclusion can be claimed if the University or the researcher accepts award restrictions regarding the participation of foreign nationals, or the access to, or dissemination or publication of resulting research information.
Violations of export control regulations carry potential criminal, civil and administrative penalties for the University and the individual researcher or staff member. Penalties can range from fines in the millions of dollars and imprisonment for as much as 30 years, to the revocation or denial of licenses, seizure & forfeiture of goods, and debarment from all government contracting. Don’t Let This Happen to You! (PDF)
It is critical for University researchers, research team members and support staff to: be aware, and understand the implications of export controls for University activities; be sufficiently schooled in the regulations to recognize potential export control issues; and contact the University Compliance Officer immediately when an export control concern arises.
Training in export controls is available online in abbreviated format – ECR Quick Course (PDF), and in Blackboard as a narrated presentation with accompanying case studies and quiz.
- ECR Agencies
- ECR Glossary
- ECR Resource List (PDF)
- ECR Quick Course (PDF)
- ECR Decision Tree (PDF)
- Export.gov’s Consolidated Screening List
- H1-B Visa Deemed Export Attestation (PDF)