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Federal laws restricting exports of goods, services and technology have been in existence since the 1940s. The events of September 11th, 2001, coupled with the continuing war on terrorism, have forced the federal government to strengthen their enforcement of these laws.

It is important that Binghamton University faculty, researchers, and administrative staff understand the export control laws and regulations, the associated responsibilities, and adhere to them to assure compliance. Export controls impact a broad area of university research. The penalties for non-compliance are severe and fall on individuals as well as the institution.

What are export controls?

Export controls are U.S. laws that govern the transfer of information to foreign nationals and foreign countries for reasons of foreign policy and national security. These regulations cover virtually all fields of science and engineering.

Export controls present a unique challenge to universities because they require balancing the concerns about national security and economic vitality with the concepts of academic freedom and publication and dissemination of research findings and results.

What is an export?

An export is an actual shipment or transmission (oral, written, electronic or visual disclosure) of items, services or technical data, to:

• anyone outside the US, including a US citizen
• a non-US citizen wherever they are located (deemed export, see below)
• a foreign embassy or affiliate

What is a deemed export?

The release or disclosure of export controlled software, technologies or technical data to a foreign entity or individual inside the US is “deemed” to be an export to the home country of the foreign entity or individual.

Who controls exports?

There are three government agencies that control exports:

U.S. Department of Commerce - Export Administration Regulations (EAR) - http://www.bis.doc.gov/index.htm

U.S. Department of State - International Traffic in Arms Regulations (ITAR) - http://pmddtc.state.gov/consolidated_itar.htm

U.S. Department of Treasury - Office of Foreign Assets Control (OFAC) - http://www.treas.gov/offices/enforcement/ofac/programs

What items are regulated by EAR, ITAR and OFAC?

 Here's a brief summary
 Export Administration Regulations (EAR)  

• Regulate items designed for commercial purpose, but that can have military or security applications- including computers, pathogens and civilian aircraft. These are known as dual-use items
• Apply to dual-use items (i.e., both commercial and military applications) that are identified by 10 categories on the CCL: nuclear materials, facilities and equipment; chemicals, microorganisms and toxins; processing materials; electronics; computers; telecommunications and information security; lasers and sensors; navigation and avionics; marine; and propulsion systems, space vehicles and related equipment
• Apply to these groups of items within each category: equipment, assemblies and components; test, inspection and production equipment; materials; software; and technology
• Also apply to the re-export of items of U.S. origin outside of the U.S.
• Apply to encrypted software. The export of encrypted software should be reviewed carefully since such software is almost always export controlled under the EAR
• The export of encrypted software should be looked at carefully, because under the EAR it is almost always controlled and it does not qualify for the fundamental research exemption

 International Traffic in Arms Regulations (ITAR)

• Regulate goods and technology that are inherently military in nature or used in defense in a military setting- including tank, fighter aircraft and nerve agent defensive equipment
• Apply to military items (e.g., munitions, defense articles, defense services, etc.). Defense articles include technical data which incorporates software, unlike the 's EAR definition of technical data. Defense services include certain information to be exported that may be controlled as a defense service-even if in the public domain-because it will be used in connection with the design, production, operation, etc., of ITAR-controlled items
• Include space-related technology and research. This increases the applicability to RF and SUNY. Also, the ITAR increasingly may apply to certain research in promising new areas, e.g., nanotechnology/new materials, sensors, life sciences, etc.

 What areas are subject to export control regulations?

  Export controls are not limited to the transfer of a document or piece of equipment. They   also include any materials, technology, information or software that are subject to EAR or   ITAR. Here's a list of some of the areas that might be subject to export controls:

• Direct exports - Material transfers, encrypted software, specially designed electronic components or test equipment, the shipment abroad of prototypes or subsystems or certainly commonly used research tools or equipment that may accompany a RF or SUNY researcher when he or she travels abroad (such as global positioning system or "GPS" [GPS] equipment for field research in China or the Mideast). Also, certain contracts, for example, where the purpose or intent of the statement of work could be subject to export controls, and donations, sales or transfers of surplus equipment
• International and domestic collaborations and technical exchange programs, including lab-to-lab programs, with certain countries or end-users
• Biological Materials and Information - Export of materials that could possibly be used in chemical or biological weapons is regulated under export control regulations. Examples include human pathogens, zoonoses, toxins, animal pathogens, genetically-modified microorganisms and plant pathogens. Biological materials and information are subject to export controls if the materials are to be shipped outside the U.S.
• Publications that are not generally accessible to the interested public (e.g., restricted conference papers, abstracts, journal articles, etc.) or involve interactions with persons or entities from OFAC-embargoed countries and entities
• International and domestic presentations at conferences and symposia, especially if subject to controls by OFAC or ITAR or if the conferences are not open to the public
• Foreign national visits and assignments to the RF or SUNY
• Foreign travel by RF or SUNY employees and subcontractor personnel
• Conversations involving covered technology outside of the RF, SUNY or with a non-U.S. citizen, non-permanent resident or foreign national anywhere outside a catalog-listed course or associated teaching laboratory
• Specifications and descriptions of covered technologies in proposals or requests for quotations

How can export controls affect my research?

Unless an exclusion or exemption is available, the University may be required to obtain prior governmental approval (in the form of an export license) before allowing the participation of foreign national faculty, staff, or students in affected research. In some cases, a license may not be available at all based on the country involved.

In addition to affecting who may participate in the research project on campus, the following are examples of situations in which a license may be required:

• Presentation/discussion of previously unpublished research at conferences and meetings where foreign national scholars may be in attendance
• Research collaborations with foreign nationals and technical exchange programs
• Transfers of research equipment abroad
• Visits to your lab by foreign scholars

What are exclusions and will they pertain to my research?

Most research taking place at Binghamton University will fall under one of the following exclusions:

Fundamental Research Exclusion: Both ITAR and EAR include language that excludes the results of "fundamental research" from export requirements for export licenses or other government approvals. The exclusion applies for basic and applied research in science and engineering performed by universities so long as that research is carried out openly and without restrictions on publication, or foreign national access and dissemination restrictions.

Educational Information: authorizes the disclosure, without a license, of educational information released by instruction in catalog courses and associated teaching laboratories of academic institutions and are general scientific, mathematical, or engineering principles commonly taught in universities.

Publicly Available Information Exclusion: applies if the information is in the public domain, i.e., if it is publicly available technology and software that is generally accessible to the public through unlimited and unrestricted distribution. Special rules apply to encryption software even if "open source" or publicly available software is being developed.

As a principal investigator, what do I need to do?

The PI has the best understanding of his or her research and, therefore, the best information as to whether the particular technology, data, or information involved in that research is or may be covered by export control regulations. The PI is responsible for doing the following:

• The PI should carefully review the information on export controls provided on this web site. Additional training on export controls is provided by the Office of Sponsored Programs (OSP) and is available to PIs and their departments.

• Before preparing a proposal or beginning any research, the PI should determine whether there may be any export control issues to address.The PI should coordinate with OSP regarding their research and the provisions of the proposal solicitation and/or award agreement in order to determine if there are potential issues.

• If any such issues are identified, or if any question exists,OSP will work with the PI to determine whether any export control restrictions may apply to the research.

• If it is determined that export controls apply to the project, the PI must adhere strictly to any applicable restrictions and cooperate fully with the university’s efforts to monitor compliance.

• After work on the project has begun, the PI should notify OSP prior to implementing any changes that may give rise to the application of export controls, such as a change in the scope of work or the addition of new staff to the project.