Export Control Policy

Brown University Export Control Policy

pdf of policy

I Purpose of Policy
II Definitions
III Types of Export Control Regulations
IV To Whom Does the Policy Apply
V Export Controls at Brown University
VI Exclusions and Exceptions
VII Security and Technology Control Plan
VIII Failure to Comply with this Policy

I Purpose of Policy
The purpose of this policy is to provide awareness of the Federal export control laws and regulations, Brown's policy for complying with those laws, and each individual community member's responsibility and obligation under these laws and regulations and University policy.

Following the events of 9-11, export control regulations have become prominent, and federal scrutiny concerning the level of compliance with these regulations has heightened. It is important that faculty and other researchers at Brown University's departments, laboratories, and centers understand their obligations under these regulations and adhere to them.

Export control laws, implemented both by the Department of Commerce through its Export Administration Regulations (EAR) and the Department of State through its International Traffic in Arms Regulations (ITAR), have been in existence for many years. In addition, the US Treasury Department through the Office of Foreign Assets Control (OFAC), prohibits or restricts certain activities with embargoed countries, sanctioned entities, and sanctioned individuals. Together they comprise the body of laws and regulations we refer to in this policy as export controls. Institutions of higher education including their faculty, staff, students, and visiting scholars are required to comply with these laws and regulations. Criminal sanctions, including fines, penalties and/or prison sentences for individuals; as well as fines, penalties, and desist orders for future institutional activities or authorizations, can apply in cases of violation. It is the responsibility of all faculty members, staff and students to safeguard data, equipment, and/or technology controlled by these federal laws.

II Definitions
Deemed Export – Items or information provided to a foreign individual in this country who is not a "U.S. Person" as defined below is considered a "deemed export" to that individual's country of citizenship.

Empowered Official – A U.S. Person employed by Brown with management authority who is legally able to sign export licenses and other related requests. This person understands the export regulations and the criminal and civil liabilities and administrative penalties for violating federal export control regulations of military and defense articles.

Encryption Items – The process of converting data or information into code is encryption. The phrase encryption item includes all encryption commodities, software, and technology that contain encryption features subject to export controls. Though most of these items are controlled through the EAR, items having a specific military function may be controlled through ITAR.

Export –taking or sending out of the United States in any manner any articles controlled under the export regulations. The term includes video and audio disclosures as well as transfers and disclosures of controlled items and technology in this country ("deemed exports") to a foreign person. The term also applies to re-exports or retransfers of controlled items for a use, end user, or destination not previously authorized (e.g., an item shipped from one foreign country to another).

Foreign Persons – Any person or entity that does not meet the definition of a U.S. Person as defined below.

Technical Data – Information, other than software, that takes the form of blueprints, plans, diagrams, models, formulae, tables, engineering designs, specifications, manuals, and instructions written or recorded on other media or devices such as disk, and read-only memories that is necessary for the design, development, production, manufacture, assembly, operation, repair, testing, maintenance or modification of controlled items.

U.S. Person – a lawful permanent resident - green card holder - or citizen of the United States or other protected individual (e.g., a political refugee); or, corporations, businesses, partnerships or other entities incorporated to do business in the United States as well as all governmental agencies (federal, state or local).

III Types of Export Control Regulations
There are three primary sets of Federal regulations currently governing export controls with additional miscellaneous restrictions as follows:

A) The Export Administration Regulations (EAR). The EAR is a set of regulations administered by the Commerce Department through the Bureau of Industry and Security (BIS). These regulations control "dual use" items and the technology related to these items that often have both civilian and military uses, such as computers, toxins, and chemicals. A listing of the items controlled by the EAR is called the Commerce Control List (CCL). The CCL includes essentially all civilian science,

technology, and engineering dual use items. For goods and technology listed on the CCL, a license will be required for export, unless an exclusion or exemption applies. Where embargoed countries under OFAC are involved a license generally will be denied by the government.

Those items not explicitly included on the CCL are included in the broad category known as "EAR99". Though a license may not generally be required for EAR99 designated items, a license will be required if the item will be shipped or otherwise transferred to a comprehensively embargoed country, currently Cuba and Iran (see description of OFAC below).

To determine whether the EAR applies to the export of a particular item, the CCL must be searched to determine the appropriate Export Control Classification Number (ECCN) by an individual knowledgeable about the item's performance specifications, characteristics and capabilities and the destination, use, and user of the exported item. The CCL can be found at Part 774 of the EAR available at the following url: http://www.gpo.gov/bis/ear/ear_data.html .

The Commerce Control List (CCL) is divided into ten general categories designated by the first digit (number) of the Export Control Classification Number (ECCN): (0) Nuclear Materials, Facilities and Equipment and Miscellaneous; (1) Materials, Chemicals, Microorganisms, and Toxins; (2) Materials Processing; (3) Electronics; (4) Computers; (5) Telecommunications and Information Security; (6) Lasers and Sensors; (7) Navigation and Avionics; (8) Marine; (9) Propulsion Systems, Space Vehicles and Related Equipment. The second character of the ECCN is from one of five letter groups: (A) Equipment, Assemblies and Components; (B) Test, Inspection and Production Equipment; (C) Materials; (D) Software; and (E) Technology.

For example, ECCN 8A001 is a Marine item dealing with ocean-going submersible vehicles. Marine is designated by the category "8" in the ECCN. The second character, "A", further defines the item as being specifically equipment, assemblies, or components of that specific Marine item. The additional characters identify the specific entries within a given category.

Once an ECCN has been identified, the next step is to identify the reasons for control that are indicated in the specific ECCN description. For example, "AT" is the designation used for anti-terrorism and "NP" is used for nuclear nonproliferation. The EAR country chart (Supplement 1 of Part 738) is then consulted to determine if the specific reason for control applies to the country of destination. This is noted by an "X" in the appropriate box of the column listed on the country chart.

After determining that the item is listed on the CCL and at least one of the reasons for control exist for the destination of the item, determination of whether a license is needed is accomplished by consulting the prohibitions (Section 736) and exceptions (Section 740) contained in the regulations. Just because an item is listed on the CCL it does not necessarily mean that a license is required, a person may still undertake these activities without a license unless the regulations affirmatively state otherwise. To make the final determination, the prohibitions and list of exceptions are then consulted for a final license determination.

Supplement 1 of Section 732 also includes a decision tree that may be referred to in completing this determination. Juliane Blyth, Associate Director of Research Operations with the Office of Research Integrity, can provide assistance in the process and may be reached at 863-3295, or by email, at Juliane_Blyth@brown.edu.

B) The International Traffic in Arms Regulations (ITAR). ITAR is a set of regulations administered through the State Department and its office of Directorate of Defense Trade Controls (DDTC). These regulations are designated for munitions and for defense articles and services as well as for certain space-related items. Military and other items controlled by DDTC are listed on the U.S. Munitions List (USML). Any service, article, or technical data specifically designed, developed, configured, adapted, or modified for a military or intelligence application, or for use in space, is generally subject to ITAR. Items controlled by ITAR do not have primarily civilian applications and do not have performance equivalents of articles used in civil applications. Designated ITAR controlled items are listed on the U.S. Munitions List (USML).

Unlike items appearing on the CCL, the intended use of an item listed on the USML after it has been exported (i.e., whether it is for civilian or military purposes) is not relevant in determining the control of the item. The ITAR regulations and the ITAR-controlled items (Section 121.1) are available at the following url: http://www.pmddtc.state.gov/regulations_laws/itar_official.html .

There are 21 categories of ITAR-controlled items – one category (XIX) is blank, reserved for future use. The ITAR categories of controlled items are listed below:

Certain specific areas of research at Brown University, because they are narrowly focused and limited, may only require a Technology Assistance Agreement (TAA) rather than a broader export license. The TAA is used for the performance of a limited specific defense service or the disclosure of limited specific technical data as opposed to an alternate agreement granting a right or license for broader transfers of defense articles. With a TAA, academic departments are responsible for developing and implementing a technology control plan for items of equipment, components, or software that are export controlled under ITAR but that may not be intended for actual export, either by shipment or as a deemed export within this country. Juliane Blyth, Associate Director of Research Operations with the Office of Research Integrity, can provide assistance in the process and may be reached at 863-3295, or by email, at Juliane_Blyth@brown.edu

If an ITAR license is required at Brown, the Vice President for Research is the Empowered Official of Brown University responsible for the execution of ITAR licenses and for the ultimate management and control of this policy as stated under the ITAR.

C) The Office of Foreign Asset Control (OFAC). OFAC, within the Treasury Department, is responsible for the oversight of regulations pertaining to embargoed and sanctioned countries and to individual persons and entities who are from these countries or who have violated other laws. Specifically, OFAC administers and enforces economic and trade sanctions based on U.S. foreign policy and other national security goals.

A listing of OFAC countries and "Specially Designated Nationals" along with related crime enforcement advisories is available at the following url: http://www.treas.gov/offices/enforcement/lists/ .

The current list of countries (October 2010) under U.S. sanctions or embargoes is as follows: The Balkans, Belarus, Burma (Myanmar), Ivory Coast, Cuba, Congo, Iran, Iraq, Liberia, Lebanon, North Korea, Somalia, Sudan, Syria, and Zimbabwe. Embargoes may be comprehensive, such as to Cuba or Iran, and apply generally to all assets being exported to that country or to an individual from that country; or it may be more specific, such as the U.S. sanction against the former Liberian regime of President Charles Taylor where the sanctions apply to the regime and associated individuals and not to the country, government, or central banks. Because this list may change frequently, individuals should consult the most recent list at: http://www.ustreas.gov/offices/enforcement/ofac/programs/

Exclusions and exceptions available under the other export control regulations (ITAR and EAR) do not necessarily apply to OFAC designated entities. In addition to the lists for embargoed countries and Specially Designated Nationals (SDN) maintained by OFAC, a number of other Federal agencies (e.g., FBI, ATF, GSA, FDA, etc.) also maintain lists of sanctioned or wanted individuals and entities that US citizens are expected to consult when conducting business abroad.

As a means of assisting Brown in enforcing OFAC requirements, international sub-agreements issued by the Office of Sponsored Projects, and other payments made to foreign individuals or organizations, are usually made directly through wire transfer by Brown University's bank which routinely checks wire transfers against each of the restricted party screening lists (RPS) maintained by OFAC and other export control and enforcement regimes. In addition, the Brown offices mentioned in Section V of this policy can provide assistance.

D. Miscellaneous. To a more limited degree, additional regulations may also apply from the Energy Department (DOE), the Environmental Protection Agency (EPA), Nuclear Regulatory Commission (NRC), and others. For example, petroleum product technology may be controlled by DOE, international shipments of hazardous wastes by the EPA, and civilian nuclear technology may be covered by NRC regulations.  Juliane Blyth, Associate Director of Research Operations with the Office of Research Integrity, can provide assistance in the process and may be reached at 863-3295, or by email, at Juliane_Blyth@brown.edu.

IV To Whom Does the Policy Apply
This policy applies to all individuals at Brown -- faculty, staff, students, and visiting scholars -- who may be responsible for the export of goods and/or services, including deemed exports transferred within this country. All individuals at Brown having responsibility for such transfers are responsible for determining the activities and items that are covered under this policy and for complying with all Federal export control laws and University policy.

V Export Controls at Brown University
Export controls at Brown may take one of several forms. Exports occur when shipping equipment, components, technical data, or related information abroad or when the individual travels abroad and takes such items along, whether for transfer to the foreign location or for the traveling individual's own personal use while traveling abroad. Deemed exports may also occur in this country when controlled items are transferred to foreign persons on U.S. soil, including on the Brown campus.

Due to fundamental research and educational exclusions (see Section VI), most of the information exchanged on campus at Brown University is not subject to these regulations. Limits to these exclusions may exist, however, for confidential or

proprietary information received from third parties for need-to-know use in Brown research programs or for certain encryption technology. Limits to these exclusions may also exist for certain equipment located at Brown that may be used in research programs.

The Office of the Vice President for Research (OVPR) is responsible for the oversight and dissemination of this policy. However, there are other offices at Brown that are knowledgeable about export control issues and offer assistance to community members such as the Office of the General Counsel, Purchasing Office, the Technology Ventures Office (TVO), the Office of Sponsored Projects (OSP), Accounts Payable (AP), the Office of International Student and Scholarly Services (OISSS), and International Affairs (IA). Juliane Blyth, Associate Director of Research Operations with the Office of Research Integrity, can provide assistance in the process and may be reached at 863-3295, or by email, at Juliane_Blyth@brown.edu.

The Vice President for Research, is the Empowered Official of Brown University responsible for the execution of licenses and for the ultimate management and control of this policy. Any licenses required under ITAR, EAR, or OFAC will be coordinated through the OVPR. Juliane Blyth, Associate Director of Research Operations with the Office of Research Integrity, can provide assistance in the process and may be reached at 863-3295, or by email, at Juliane_Blyth@brown.edu.

V I Exclusions and Exceptions
Exclusions from EAR and ITAR regulatory provisions include "fundamental research" being conducted at a college or university and educational information exchanged within a publically published course catalogue of the institution.

The fundamental research exclusion (FRE) of an accredited institution of higher learning applies to all published information already in the public domain and to all information ordinarily published and shared broadly in the scientific community resulting from basic and applied research in science and engineering. It does not apply to research, the results of which are restricted for confidential or proprietary reasons, or where specific U.S. Government access or distribution controls exist. While the Office of Sponsored Projects is dedicated to negotiating sponsored research agreements that are free of access or publication restrictions, researchers must take care to avoid additional verbal agreements or other arrangements that may limit access and dissemination activities as this will void the fundamental research exclusion and subject the research program to coverage under the export control regulations. Attention to preserving the FRE must also be given in agreement of terms provided by University personnel outside the Office of Sponsored Projects. It is important to note that the fundamental research exclusion does not apply to private consulting activities undertaken by University faculty solely on behalf of external companies or organizations, or to activities not conducted on the campus of an accredited institution of higher learning.

Information commonly taught in courses of the institution or already in the public domain is excluded from export control regulations. However, this exclusion does not cover general system descriptions and performance characteristics of defense articles.

Other exceptions contained in the regulations, beyond the exclusions noted above, also exist. Of note, a temporary exception (TMP), exists to provide a license exception for tools of the trade being used by researchers for short-term, limited personal use while abroad (e.g., laptops or other hand-held devices for short-term limited use). These exceptions may be voided for a particular country of interest, or for one of the following reasons:
For the use or user of the export or re-export (e.g., the use may be for military or defense related purposes or the user may be debarred or suspended); Because it is subject to one or more of the General Prohibitions contained in the EAR; Because the authorization to use the license exception has been suspended or revoked; Because the country is otherwise subject to a comprehensive embargo; or, For other reasons as noted in the regulations.

VII Security and Technology Control Plan
All departments at Brown that possess export controlled items (equipment, components, software, or technical data) are responsible for providing and maintaining the appropriate security of the controlled items and the related pertinent documentation. Prior to receipt of such items, a technology control plan (TCP) should be in place designating the responsible person and the appropriate location, security, access, and disposition of each applicable item. Among other things, the TCP should identify the person at Brown responsible for maintaining the information or item and monitoring compliance with the control plan. A description of the information or item to be protected, measures taken to control the information within the Brown facility, access to the information or item itself, and appropriate training required and provided to each individual with access to the information should also be included in the plan.

VIII Failure to Comply with this Policy
The penalties for violating Federal export control laws are significant and are detailed below:
ITAR: Criminal penalties can reach up to $1 million per violation and 10 years imprisonment for individual willful violations. Civil penalties imposed upon departments, agencies, and officials can reach up to $500,000 per violation. A university found to be in violation of ITAR regulations can also be debarred or suspended from contracting with the government and could lose its export privilege.

EAR: The greater of $l million or five times the value of the exports for each willful violation. Criminal penalties can reach up to $250,000 or 10 years imprisonment, or both, for individual violations. Civil penalties can reach up to $50,000 per violation.

OFAC: Penalties will range depending upon the sanction regime in question. Generally, corporate criminal penalties can reach up to $1 million, and individual criminal penalties are up to $100,000 or 10 years imprisonment, or both, per violation. Civil penalties can reach up to $55,000 per violation.

In addition to sanctions imposed by law, the University may also take action when the violation occurs in fulfillment of a normal University obligation or function. Faculty, staff, students, and visiting scholars found to be knowingly in violation of the policy may be subject to the ordinary disciplinary processes and penalties of the University if they are found to have failed to fully and truthfully comply with any Federal laws or University policy regarding export controls. Among the additional penalties that could be applied by Brown is ineligibility to submit sponsored project proposals, obtain IRB or IACUC approvals, or supervise graduate students. In particularly egregious cases the penalty could be termination of appointment or dismissal. The latter would proceed in accordance with the normal procedures for termination.