MEMORANDUM
TO: Deans, Department Chairs, and Center Directors
FROM: John D. Weete, Vice President for Research
Alan B. Martin, Director, Sponsored Programs
SUBJECT: Export Control Laws and Regulations
DATE: November 16, 2004
During the past five years, West Virginia University has experienced unprecedented growth in external funding for research. This growth is the result of the hard work of WVU faculty and staff in identifying areas of opportunity for funding and aggressively building capabilities in those areas. A significant area of research has involved biometrics and homeland security which may bring requirements dealing with export control and access by foreign nationals to data and research results. These requirements may be found in agreements for work in other areas as well.
Export control laws, federal 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 more than twenty years. They are the law of the land. As such, institutions of higher education and their employees are required to comply with these laws and regulations. If WVU research involves covered technologies, the EAR and/or ITAR may require WVU to obtain prior approval from State or Commerce before allowing foreign nationals to participate in the research, partnering with a foreign company and sharing research-verbally or in writing-with persons who are not United States citizens or permanent resident aliens.
Criminal sanctions (including money and/or prison sentences for individuals) can apply in the case of violations.
Following the events of September 11, the export control regulations have become more prominent and scrutiny concerning the level of compliance with these regulations has heightened. It is important that faculty and other researchers in WVU departments, laboratories and centers understand their obligations under these regulations and adhere to them.
The regulations cover virtually all fields of science and engineering. However, they prohibit the unlicensed export of only certain materials or information for reasons of national security or protection of trade. In the case of academic or research institutions, there is an exclusion for fundamental research, the results of which are or are about to be or, in some cases, ordinarily are publicly available. Understanding three basic concepts related to export controls is essential: (1) the nature of the technology that is export controlled and how it is recognized, (2) the fundamental research exclusion, and (3) what is a deemed export. A few items deserve special emphasis:
- The vast majority of exports do not require government licenses. Only exports that the U. S. government considers “license controlled” under the EAR and ITAR require licenses (note that some controlled exports don’t require a license). Export controlled transfers usually arise for one or more of the following reasons:
- The nature of the export has actual or potential military applications or economic protection issues
- Government concerns about the destination country, organization, or individual, and
- Government concerns about the declared or suspected end use or the end user of the export
- Even if an item appears on one of the lists of controlled technologies, generally there is an exclusion for fundamental research (as long as there are no restrictions on publication of the research or other restrictions on dissemination of the information) or, in some cases, as long as the research or information is made public or is intended to be made public.
- When an item is controlled, a license may be required before the technology can be exported. This requirement relates not only to tangible items (prototypes or software) but also to the research results themselves. Further, the term “export” can mean not only technology leaving the shores of the United States (including transfer to a U.S. citizen abroad whether or not it is pursuant to a research agreement with the U.S. government), but also transmitting the technology to an individual other than a U.S. citizen or permanent resident within the United States. Even a disclosure to a foreign researcher or student in a WVU laboratory is considered a “deemed export”.
- There are certain countries where it is the policy of the United States generally to deny licenses for the transfer of these items. These countries are currently Afghanistan , Armenia , Azerbaijan , Belarus , Cuba , Iran , Iraq , Libya , North Korea , Sudan , Syria , Tajikistan , and Vietnam .
Clearly most of the research activities in which WVU is involved are excluded from export controls because WVU can assert the fundamental research exclusion. However, when this is not the case (such as when one needs to export a tangible research item, such as a prototype or software) it is critically important to begin the process of seeking a license from either the Department of Commerce or State (as applicable) early, since it can take as long as 6 months to receive a license after the submission of the license application.
It is important to err of the side of caution in regards to these issues. Should you have any questions or require additional information please contact Alan Martin at 3-7398. The Office of Sponsored Programs will take the lead in assessing whether or not export control laws apply to a particular situation.
