In order to ensure compliance with export control regulations, it is critically important for Ohio State personnel to identify when their activities may trigger export controls. When export controls may apply, work with the Office of Secure Research to obtain any required governmental licenses, monitor and control access to restricted information, and safeguard all controlled materials.
Ohio State seeks to comply with applicable export control regulations in all university activities including innovative research and collaborative efforts to further the creation and dissemination of knowledge for the public good while simultaneously protecting national security, advancing economic interests and supporting United States foreign policy objectives.
What do Ohio State personnel need to do?
- Be familiar with the Export Control Policy;
- Know what an Export Control is;
- Identify when your activities may trigger export controls by reviewing University Activities;
- Engage the Office of Secure Research for support; and
- Immediately report any suspected or actual violations of export control regulations or the Export Control Policy to the Office of Secure Research or report anonymously through EthicsPoint. If your activity is subject to a Technology Control Plan, you must immediately report any known or suspected violations of the TCP and/or export control regulations to the Office of Secure Research.
How are Export Controls regulated?
The United States Department of State, United States Department of Commerce and United States Department of the Treasury are the main federal bodies that have regulatory oversight for export controls in the United States.
|Overseeing United States Department||Department of State||Department of Commerce||Department of the Treasury|
|Empowered Agency||Directorate of Defense Trade Controls (DDTC)||Bureau of Industry and Security (BIS)||Office of Foreign Assets Control (OFAC)|
|Legal Basis||Arms Export Control Act (1976)||Export Administration Act (1979)
Export Control Reform Act (2018)
|International Emergency Economic Powers Act (IEEPA)
Comprehensive Iran Sanctions, Accountability, and Divestment Act (CISADA)
|Regulations||International Traffic in Arms Regulations (ITAR)||Export Administration Regulations (EAR)||Foreign Assets Control Regulations (FACR)|
|Scope||Permanent and temporary exports, and temporary imports of:
– Defense articles
– Defense services
– Technical Data
|Permanent and temporary exports, reexports, and retransfers (in-country) or:
|Services of value to certain countries, regimes and other parties on which economic and trade sanctions have been issued.|
|Control List||United States Munitions List (USML)||Commerce Control List (CCL)||OFAC Sanctions Lists|
|Classifications||USML Categories||Export Control Classification Numbers (ECCN)||Sanctions Programs|
|Restrictiveness||Most restrictive, but relatively straightforward in application||More permissive, but more complex in application||Typically restrictive, and typically complex in application; depends on individual sanctions program|
|Cost of Non-Compliance||Civil penalties:
$10,000 to $120,000/violation
There are other federal agencies regulating exports in one way or another. Examples include:
Nuclear Regulatory Commission (NRC)
The NRC was established by the Energy Reorganization Act of 1974 and regulates the import and export of nuclear equipment and material. These regulations can be found in 10 CFR Part 110.
Department of Energy
The National Nuclear Security Administration (NNSA) within the Energy Department controls assistance to foreign atomic energy activities. The Atomic Energy Act of 1954 is the legal basis for these regulations. These regulations can be found in 10 CFR Part 810. Violations of the Atomic Energy Act may result in fines up to $10,000 or imprisonment up to 10 years, or both. If the offense is committed with intent to injure the United States or to aid any foreign nation, the penalty could be up to life imprisonment or a $20,000 fine, or both.
Department of Justice (DOJ)
The DOJ investigates and enforce violations of export control regulations through a variety of its branches including, but not limited to, the Federal Bureau of Investigation (FBI). DOJ recommends that when any organization violates export control regulations they: (A) voluntarily self-disclose the violations; (B) fully cooperate with the National Security Division (NSD); and (C) appropriately remediate in a timely fashion.
A deemed export occurs when controlled technical data or technology is transferred to a foreign person in the United States. Access to, or the use of, a controlled item in the United States may release the technology associated with that controlled item to a foreign person in the form of a deemed export. The ITAR and EAR have separate definitions of when the technology associated with physical items is ‘released’ to another person.
Visual Access to a USML item can release technical data and, therefore have deemed export licensing implications.
A release to a foreign person of EAR export-controlled “technology” is considered a deemed export. “Technology is information necessary for the “development,” production,” “use” operation, installation (including on-site installation), maintenance (checking), repair, overhaul or refurbishing (or other terms specified in ECCNs on the CCL that control “technology”) of an item. The “export of technology” is controlled according to the provisions of each Category. The EAR further states that “technology required for the development, production, or use of a controlled product remains controlled even when applicable to a product controlled at a lower level. Please note that the terms “required,” “development,” “production,” “use,” and “technology” are all defined in the EAR. Controlled Technology is that which is defined in the Commerce Control List.
What information is not subject to Export Controls at Ohio State?
The majority of university activity is exempt from export control regulations, but not all of it. The following types of information are exempt from export control regulations:
- Defined in NSDD 189 as “Basic and applied research in science and engineering, the results of which ordinarily are published and shared broadly within the scientific community”
- In order to qualify for this, there can be no proprietary research or research with national security restrictions. The research must be free from requirements for sponsor approval prior to publication or citizenship restrictions for the researchers.
- Information released by instruction in a catalog course or associated teaching laboratory of an academic institution
- General scientific, mathematical or engineering principles commonly taught at academic institutions
- Information that is generally available to the public without restrictions upon its further dissemination falls under this exclusion
- Examples include: Information at bookstores, at libraries open to the public, in published patent applications and through unlimited distribution at conferences, meetings or seminars in the United States
What information is subject to Export Controls at Ohio State?
Information that does not qualify for one of the above exclusions is controlled. This typically occurs when we receive confidential or proprietary information from an outside party or when we generate information that is subject to access and dissemination controls.
- Typically received from an entity outside of the university and covered by a NonDisclosure Agreement (NDA) or Confidentiality Agreement (CDA), etc.
- Proprietary research (even if it is self-imposed)
Agreements that contain requirements for research results to remain confidential or to be reviewed an approved prior to publication
Restrictions based on citizenship
All physical items are subject to export control regulations. Those can be exported in a variety of ways including, but not limited to: hand carrying them out of the United States and shipping them outside of the United States.
In addition to controlling dual use items, the EAR also prohibits United States participation in certain restrictive trade practices and foreign boycotts.
The anti-boycott provisions of the EAR prohibit any United States person or business from participating in any non-United States sanctioned foreign boycott. Examples of the types of restrictive trade practices that are considered “participation” in a boycott include being asked to:
- refuse to engage in a business transaction with the boycotted country
- agree to not use certain “black-listed” suppliers
- provide information regarding current customers
- refuse to employ or otherwise discriminate against any United States person on the basis of nationality or origin
- certify that an item or shipment contains no items from a boycotted country
In principal, the anti-boycott regulations apply to any foreign boycott; however, in practice, the primary target of these regulations is the Arab League’s on-going boycott of Israel. Ohio State is required to promptly report any occurrences of restrictive trade practices to the government. Contact the Office of Secure Research at email@example.com immediately if you believe that you have encountered any anti-boycott activities.