Export Control Regulations
The U.S. Departments of State, Commerce, and Treasury are the primary administrative branches of the government charged with the implementation and enforcement of export regulations. Each of the Departments is responsible for different areas of the export controls though it is important to note that jurisdiction on some items may be shared by more than one Department.
The U.S. Department of State
The Department of State, through the Directorate of Defense Trade Controls (DDTC) administers the International Traffic in Arms Regulations (ITAR) (22 CFR §§120-130). The ITAR governs the export of or information related to military, weapons, and space related items and services (e.g., missiles, satellites, firearms) as enumerated on the U.S. Munitions List (USML).
The U.S. Department of Commerce
The Department of Commerce, through the U.S. Bureau of Industry and Security (BIS), administers the Export Administration Regulations (EAR) (15 CFR §§730-774). The EAR controls the export or transfer of “dual use” items. Dual use items are those that have a potential military as well as commercial or civilian application (e.g., GPS units, centrifuges, mapping software). In general, any item made in the U.S., or made outside the U.S. but with U.S. parts, technology, software, or know-how will be subject to regulation under the EAR unless the item is solely under another agency’s jurisdiction (e.g., ITAR controlled). While almost every item located in the U.S. is subject to the EAR, only a very small number of items actually require an export license.
In addition to controlling dual use items, the EAR also prohibits U.S. participation in certain restrictive trade practices and foreign boycotts. The anti-boycott provisions of the EAR prohibit any U.S. person or business from participating in any non-U.S. 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 U.S. 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. The university is required to promptly report any occurrences of restrictive trade practices to the government. Contact the Export Control Administrator at firstname.lastname@example.org promptly if you believe that you have encountered any anti-boycott activities.
The U.S. Department of the Treasury
The Department of the Treasury, through the Office of Foreign Assets Control (OFAC) (31 CFR §§500-599) is responsible for enforcing all U.S. embargoes and sanctions programs. Special care must be taken when dealing with sanctioned and embargoed countries. In some cases, all activities are subject to strict licensing requirements and in many cases, licenses will not be granted. For more information on specific OFAC sanction programs see International Collaborations.
Penalties for Non-Compliance with Export Controls
Fines for non-compliance with export controls are quite severe and can be levied at both the individual as well as the university. In addition to significant monetary fines and lengthy prison sentences, the potential loss of all federal funding and loss of export privileges would be crippling to the university. University personnel may not transfer any items, information, technology or software contrary to U.S. export control laws or the university’s policy on Export Control.
Violations under the EAR can bring civil penalties of $10,000 to $120,000 per violation and criminal penalties of $50,000 to $1 million per violation along with up to 10 years in prison.
Violations under the ITAR can bring civil penalties of $500,000 per violation and criminal penalties of up to $1 million per violation along with up to 20 years in prison.
Violations under OFAC regulations can bring civil penalties of $250,000 per violation and criminal penalties of up to 20 years in prison.
Recent Enforcement Cases
The University of Tennessee
On September 3rd, 2008, the U.S. government convicted retired University of Tennessee professor Dr. J. Reece Roth of illegally exporting information regarding U.S. Air Force sponsored research to one or more foreign nationals without an appropriate export license. One of the foreign nationals in question was a Chinese graduate research assistant in Dr. Roth’s laboratory. Dr. Roth was convicted on 18 counts and was sentenced to 48 months in prison. For more information on this case see:
- Retired University of Tennessee Professor Convicted of Arms Export Violations
- Retired University Professor sentenced to four years in prison for Arms Export Violations involving citizen of China
Department of Commerce Actions
The Department of Commerce publishes a booklet containing summaries of recent export enforcement cases. For more information see: Don’t let this happen to you.