Export Control Regulations
ABOUT EXPORT CONTROL
* All PSU employees who travel internationally, work with foreign students or colleagues, or who are involved in research should read the following so that they are aware of export control regulations as those apply to their activities.
Federal laws restrict the export of certain goods, information and technology in ways that affect Portland State University (PSU). The laws primarily focus on export of technology that could have military, nuclear or aerospace applications, but in some instances, they can apply to less obvious items such as laptop computers, cell phones and GPS devices. The restrictions on export are not just about physical export, but also about giving restricted information to foreign nations on U.S. soil (deemed export). Federal agencies with responsibility for enforcing export control laws have increasingly turned their attention to compliance in higher education, particularly in academic research institutions.
Fortunately, most universities can qualify for exemptions included in the export control laws. If information is published or imminently publishable, it is not subject to export control. Because PSU is committed to maintaining academic freedom to publish and disseminate knowledge developed by students, faculty and staff engaging in research, instruction and public service at PSU, we rely extensively on this exemption. At the same time, there are fields of knowledge for which we cannot rely on this exemption: specifically encryption software and items having a military use.
In all cases, PSU is fully committed to complying with all applicable export control laws and regulations. Follow this link to APPLICABLE REGULATIONS. The regulations control access to and dissemination of items and information regulated for reasons of national security, foreign policy, anti-terrorism or non-proliferation. Export regulations may apply when faculty travel abroad to work; work with foreign persons, including students and colleagues in the U.S.; or conduct research involving items, technology, data, commodities, software or information that are controlled items under the regulations.
PSU maintains an open academic setting where scientific data and results are freely disseminated and published. In such a setting, PSU’s research and other activities generally qualify as fundamental research, which does not trigger export control issues. Even so, PSU is required to demonstrate that it has a program of due diligence in export control and to document its compliance with U.S. export controls and trade sanctions laws.
If activities are found to not be exempt under the fundamental research exclusion, or one of the other exclusions described below, export control regulations apply and PSU is required to obtain authorization from the US Government in the form of an export license in order to avoid the potential unauthorized and illegal export or deemed export of controlled material or information.
VIOLATIONS of export control regulations are serious matters that can lead to significant civil and criminal penalties for the university and its employees, including:
Civil fines of up to $500,000 per violation for both the university and its employee.
Criminal fines of up to $1,000,000 per violation and/or
Prison sentences of up to ten years for employees.
Seizure/forfeiture of goods, technology or research products.
Loss of export privileges.
Loss of federal funding.
In U.S. v Roth, http://www.fbi.gov/knoxville/press-releases/2009/kx070109.html a professor and leading researcher in plasma physics at the University of Tennessee was found guilty of wire fraud, conspiracy and allowing research assistants from China and Iran to access sensitive data from a U.S. Air Force contract, in violation of the Arms Export Control Act. He was sentenced to 48 months in prison and fined $250,000. He was 72 at the time of his conviction in 2009.
See also, http://export.stanford.edu/penalty.html
State Department – International Traffic in Arms Regulations (ITAR) –items, technologies, data, and information (ITAR listed) that is inherently military in nature. Such items, technologies, data, and information are referred to as “defense articles” and “technical data.” http://www.pmddtc.state.gov/regulations_laws/itar.html
Commerce Department – Export Administration Regulations (EAR) - regulates technologies, commodities and software that are considered dual use. Such items have a valid scientific or commercial purpose but misuse of the items could cause a threat to national security. http://www.bis.doc.gov/policiesandregulations/index.htm.
Treasury Department – Office of Foreign Assets Control (OFAC) – enforces trade, anti-terrorism, narcotics, human rights and other national security and foreign policy based sanctions that prohibit providing anything of value, either tangible or intangible, to sanctioned countries, organizations or individuals.
Controlled Items – U.S. export controls are built around two somewhat different lists of controlled materials, equipment, software and technologies. The U.S. Munitions List under ITAR controls items or technologies of primarily military significance (such as firearms, ammunition, explosives, tanks and military vehicles, aircraft, missiles, rockets), items and associated software or technology intended for space launch, and satellite instrumentation of a non-military, scientific nature. The Commerce Control List under the EAR includes, but is not limited to, nuclear materials, facilities and equipment, chemicals, microorganisms, toxins, electronics, computers, sensors and lasers, navigation and avionics.
Export – to send or take controlled tangible items, software or information out of the U.S. in any manner, to transfer ownership or control of a controlled tangible items, software or information to a foreign person, or to disclose information about controlled items, software or information to a foreign government or foreign person. The controlled tangible item, software or information being sent or taken out of the U.S. is also referred to as an “export.” Generally, an export includes (1) actual shipment of covered goods or items from the U.S. to a foreign destination (including to a U.S. citizen abroad); (2) an electronic or digital transmission of covered goods or items; (3) release or disclosure, including verbal disclosures or visual inspections, of any technology, software or technical data related to export controlled items to any foreign national within the U.S.; or (4) actual use or application of covered technology on behalf of or for the benefit of a foreign entity or persons anywhere. Re-export is actual shipment or transmission of controlled tangible items, software or information from one foreign country to another foreign country. The export or re-export of controlled tangible items, software or information that will transit through a country or countries, or will be unloaded in a country or countries for reloading and shipment to a new country , or are intended for re-export to a new country, are deemed to be exports to the new country.
Deemed Export – a term used by the Commerce Department to describe a situation where a foreign national on U.S. soil may be exposed to, or have access in any manner to, an export-controlled item or export-controlled software or information. The State Department does not use this term, but includes the concept in its definition of “export.” PSU uses the term “deemed export” to refer to access by foreign nations to controlled information on U. S. soil without regard to which agency may have oversight of the action.
Export License - permits "controlled" tangible items or software to be sent outside of the U.S. or for controlled information or software code to be shared with foreign persons in the U.S. or abroad.
Foreign Person – anyone who is not a U.S. person. A foreign person also means any foreign corporation, business association, partnership or any other entity or group that is not incorporated to do business in the U.S. Foreign persons may include international organizations, foreign governments and any agency or subdivision of foreign governments such as consulates.
U.S. Person – a citizen of the U.S. a lawful permanent resident alien of the U.S., (Green Card Holder), a refugee, or someone in the U.S. as a protected political asylee or under amnesty. U.S. persons also include organizations and entities, such as universities, incorporated in the U.S.
Dual Use – items, information and software that are primarily commercial or civil in nature but also have potential military applications.
ITAR Listed – items, information and software “specifically designed, developed, configured, adapted or modified” for a military, spacecraft or intelligence application. These items, information and software are identified on the ITAR Munitions List. http://www.fas.org/spp/starwars/offdocs/itar/p121.htm
Fundamental Research Exclusion – excludes basic and applied research in science and engineering where the resulting information is to be shared broadly within the scientific community from export control. Research that carries access, participation, or dissemination restrictions will not qualify as fundamental research for purposes of the export control regulations.
Public Domain Exclusion – Under ITAR, this exclusion applies to information which is already published and generally accessible to the public. Information that is available through books, periodicals, patents, open conferences in the U.S. websites accessible to the public with no access controls or other public release authorized by the U.S. government, is considered in the public domain and does not generally require a license under the ITAR.
Under EAR, this exclusion applies to publicly available technology and non-encryption software, such as information that is the subject of an open patent application, published book or periodical, released at an open conference anywhere, available on a website accessible by the public with no access controls or information that will be published. This includes submission of manuscripts to journals for consideration with the understanding that the article will be published if favorably received. Such information or technology is considered in the public domain and the government license is not generally required to transfer such information or technology.
Education Instruction Exclusion – Under ITAR, this exclusion applies to information concerning general scientific, mathematical, or engineering principles commonly taught in schools, colleges and universities. Under EAR, this exclusion applies to information that is released by instruction, in catalog courses and associated teaching laboratories. A license is generally not required to transfer information that falls under this exception.
These three exclusions DO NOT apply to encryption software exceeding 64-bits. Transfer of encryption software exceeding 64-bits to a foreign national requires agency approval or a license.
Additionally, the ITAR education exclusion only applies to courses taught on U.S. soil and DOES NOT apply to courses covering nuclear technologies/information.
Agreements – Agreements are reviewed by the Contract Officers to ensure that exceptions from export control laws are maintained. Exceptions can be lost if the following contractual terms are accepted:
Agreements that may contain the above terms include, but are not limited to:
- restrictions on the use of foreign persons
- publication restrictions or pre-publication review for anything other than confidential or patentable information
- access or dissemination controls
Material Transfer Agreements
Technology Transfer Agreements
H-1B Visas – A person applying for an H-1B Work Visa (beneficiary) is a “foreign person” for purposes of export control regulations. As part of the H-1B petition process, PSU is required to determine whether it would need to acquire an export control license in order to transfer controlled information, data, technology, services, or software to the intended beneficiary. In order to make that determination, PSU requires completion of a Deemed Export Memorandum and Attestation.
Link to the H1-B process and Attestation Form
Travel - PSU faculty, researchers and staff often travel to foreign countries on behalf of PSU. While such travel generally presents few problems or delays, there is heightened government scrutiny of foreign travel by university personnel. Items such as laptops, flash drives and smart phones taken to foreign countries should be free of export controlled technical know-how (schematics, non-public technical data). You should keep your laptops in your possession at all times while in a foreign country. You should not allow foreign persons to use or have possession of your laptop for any reason, including “repairs.” Other tangible research items such as equipment, samples and prototypes may also be subject to export controls. If you are traveling to a foreign country, please review the Travel Considerations Page.
Link to Travel Considerations Page
Shipping - The Commerce Department has export jurisdiction over all goods and all "technology" (Commerce Department term for information) in the United States, unless some other agency has expressly been given such authority. This does not mean that an export license must be obtained before any item or piece of information can be shipped. In order to determine whether it is necessary to obtain an export license from the relevant federal agency to send tangible items or to transfer or transmit software code or information outside the United States, the researcher preparing the shipment or transfer the should consider:
- whether the software code or information is proprietary or disclosure-restricted and thus possibly export controlled, or whether it resulted from fundamental research to which export controls do not apply;
- the description of the tangible item, software or information;
- the technical characteristics and specifications of the item, software or information
- its intended end-use and end-user; and
- its destination.
All tangible items, software code and information not on a US export control list (ITAR or EAR) and recommend linking to the two lists may be shipped or transmitted to any country, individual or entity that is not sanctioned, embargoed or otherwise restricted for export. Such items, code and information may be exported under "No License Required" provisions. Overseas shipments or transmissions being handled on a "No License Required" basis will require an explanation and justification for that classification.
Links to FAQs:
If you have questions about export control issues, the following persons can serve as a resource:
Martha Kierstead - Contract Officer, Research and Strategic Partnerships
Tina Frost - Contract Officer, Research and Strategic Partnerships
Lorraine McConnell - Direct of Research Integrity, Research and Strategic Partnerships
Karen Thomson - Assistant General Counsel, Research and Strategic Partnerships
David Reese - General Counsel