U.S. export controls and sanctions regulations are administered and enforced by several agencies within the U.S. Government. The three most impactful to the University are the Dept. of State, the Dept. of Commerce and the Dept. of Treasury. While each agency maintains its own regulatory jurisdiction, there may be jurisdictional overlap in some real-life situations. Because of this, the application of export controls to University life and research is often nuanced and fact-specific.
The U.S. Department of Commerce’s Bureau of Industry and Security (BIS) seeks to advance U.S. national security, foreign policy, and economic objectives by ensuring an effective export control and treaty compliance system and promoting continued U.S. strategic technology leadership. BIS administers the Export Administration Regulations (EAR), which includes the Commerce Control List (CCL). The CCL captures a wide range of hardware, software, chemicals, biologicals, systems, equipment, technical information and other commodities which are subject to the export licensing authority of BIS and are assigned a specific Export Control Classification Number (ECCN). The EAR also contain certain restrictions related to the end-user and/or the end-use, sanctions, embargoes, and antiboycott provisions, which could mean that the export of a seemingly innocuous item may still require a license from BIS.
The Department of State’s Directorate of Defense Trade Controls (DDTC) administers the International Traffic in Arms Regulations (ITAR) and is charged with controlling the export and temporary import of defense articles and defense services which are listed on the United States Munitions List (USML). Within the USML, various hardware, components, systems, chemicals, biologicals, software, technical information and defense services are described and identified by a particular USML Category. In most cases, an exporter must have a license from DDTC to export defense articles and services, as the ITAR provides few exceptions or exemptions to its stringent licensing requirements.
The Dept. of Treasury’s Office of Foreign Assets Control administers and enforces the Foreign Assets Control Regulations (FACR). These economic and trade sanctions are based upon U.S. foreign policy and national security goals. Sanctions may be selective or comprehensive and can target a particular illegal activity such as terrorism, cybercrime, international narcotics trafficking, and the proliferation of weapons of mass destruction. They may also target a specific regime or geographical area. In particular, Cuba, Iran, North Korea, Syria, Sudan, Russia, Belarus and certain regions of Ukraine are comprehensively sanctioned. These regulations can control virtually all movement of items, information, services, transactions and other touchpoints with sanctioned entities or geographical areas.
These regulations apply to the export, re-export and in-country transfer of controlled items, information, and services to “Foreign Persons” who may be located internationally or domestically. In export controls, a “foreign person” is typically defined as any natural person who is not a lawful permanent resident of the United States, a citizen of the United States, or any other protected individual as defined by 8 U.S.C. 1324b(a)(3). It also means any corporation, business association, partnership, trust, society or any other entity or group that is not incorporated in the United States or organized to do business in the United States, as well as international organizations, foreign governments and any agency or subdivision of a foreign government (e.g., diplomatic mission). Please be aware that federal funding agencies may define “foreign person” differently from the above export controls definition in certain situations and research agreements.
In some cases, exports may require an approved export license from the U.S. Government or other documentation before it can occur compliantly. Depending upon which agency has jurisdiction, approvals of a license application can take anywhere from 2-12 months, and the U.S. Government may approve or deny the request. In other cases, the University may not necessarily need to seek a license prior to export if the proposed activity qualifies for a specific export license exception, exemption, or a general license. However, evaluations and determinations of these things require time and careful consideration. It is important to begin working with the Office of Export Controls early in advance of an upcoming export to allow enough time for reviews and approvals to be granted.
Penalties for violations of export controls and sanctions can be severe and could be levied against the University and/or the individual. Civil and criminal penalties are both possible, and a resulting sentence could include up to 20 years of imprisonment and up to $1 million per violation in fines. Additionally, the University and/or the individual could be denied export privileges by the U.S. Government, either temporarily or permanently.
