Laws and Exclusions
A myriad of regulations exist for export control. Boston University is committed to complying with all United States export control laws and regulations and also fulfilling our educational and research missions as a university.
Laws and Open Access
Statement of Compliance with Export Control Laws
All members of the University community must comply with all applicable export control laws and regulations. Current federal export regulations apply to a wide range of designated controlled items, including materials, services, and information. Exports include not only the shipment or transfer of materials and information to another country, but also the release of technical data or information subject to export controls to a foreign national, whether it occurs in the United States or abroad. Transfer of technical data or information to foreign nationals who are within the United States constitutes a deemed export to the foreign national’s home country. Members of the University community will not:
- accept terms, in agreements with external parties, that limit participation of foreign nationals in research, that limit access of foreign nationals to equipment used in research, allow censorship of research results, or are otherwise inconsistent with the University’s Policy on Open Research; or
- ship or carry outside of the United States equipment or information or provide services in violation of export control laws.
Research-Related Procedures Concerning Open Access Plan
Boston University is committed to openness in research—freedom of access by all interested persons to the underlying data, the processes, and the final results of research. Research at Boston University generally should be widely and openly published and made available through broad dissemination or publication of the research results. As evidence of that commitment, on February 11, 2009, the University Council passed a resolution concerning the free and open exchange of scholarship. Openness requires that, in general, Boston University not undertake, on the campus, classified research or research whose results may not be published without prior approval by the sponsor. Openness also requires that no restriction on participation in research be based on country of origin or citizenship.
Any exceptions to this must be approved by the associate vice president of research compliance and the University or Medical Campus provost, as appropriate. In considering whether an exception will be permitted, the associate vice president of research compliance and provost shall consider the impact of the proposed restriction, if any, including whether access to controlled data is so centrally related to the research that a member of the research group who was not privy to the controlled data would be unable to participate fully in all of the intellectually significant portions of the project.
Civil and Criminal Penalties
Violations of export control regulations are subject to criminal and civil penalties for Boston University and the individual employee, student, or faculty member.
Export Administration Regulations
Criminal Penalties
Willful Violations
- University: a fine of up to the greater of $1,000,000 or fives times the value of the export for each violation.
- Individual: a fine of up to $250,000 or imprisonment for up to 10 years, or both, for each violation.
Knowing Violations
- University: a fine of up to the greater of $250,000 or five times the value of the export for each violation.
- Individual: a fine of up to the greater of $250,000 or five times the value of the export or imprisonment for up to five years, or both, for each violation.
Civil Penalties
The imposition of a fine of up to $250,000 for each violation.
Additionally, for each violation of the EAR, any or all of the following may be imposed:
- Denial of export privileges
- Exclusion from practice
- Seizure/forfeiture of goods
- Inability to obtain federal contracts
International Traffic in Arms Regulations
Criminal Penalties
- University: a fine of up to $1,000,000 for each violation.
- Individual: a fine of up to $1,000,000 or up to 10 years in prison, or both, for each violation.
Civil Penalties
- University: a fine of up to $500,000 for each violation.
- Individual: a fine of up to $500,000 for each violation.
Additionally, for any violation of the ITAR, either or both of the following may be imposed:
- Denial of export privileges
- Seizure/forfeiture of goods
- Inability to obtain federal contracts
Office of Foreign Assets Control Regulations
Criminal Penalties
- University: a fine of up to $1,000,000 for each violation.
- Individual: a fine of up to $1,000,000 or up to 20 years in prison, or both, for each violation.
Civil Penalties
- University: a fine of up to $250,000 for each violation.
- Individual: a fine of up to $250,000 for each violation.
Additionally, for any violation of the OFAC regulations, seizure and forfeiture of goods may result.
Export Control Laws and University Courses
Export control laws govern the release of certain controlled technology, technical data, and provision of certain services to foreign persons in the US or abroad. Although the vast majority of the content of University courses and associated teaching laboratories are exempt from these regulations, faculty who teach courses in the following areas that are likely to be controlled should consult with the Office of Research Compliance:
- Controlled Technology and Software including software specially designed or modified to use cryptography employing digital or analog techniques to ensure information security or mass market encryption software with symmetric key length exceeding 64-bits.
- Military articles and technologies, military robots, space articles, sounding rockets, satellites, including space-qualified hardware of any type.
- Nuclear power, including the design, construction, fabrication, operation, or maintenance of a uranium enrichment or nuclear fuel reprocessing facility or a facility for the production of heavy water.
If you teach courses in these areas please contact the Export Control Officer for assistance in identifying and addressing any export control issues.
Regulatory Framework
Commerce Department Bureau of Industry and Security—BIS
Agency: Commerce Department Bureau of Industry and Security—BIS
Laws: Export Administration Act
Regulations: EAR—Export Administration Regulations 15 CFR Parts 700–799
Lists to Look for:
The Export Administration Regulations (EAR) (15 CFR 700–799) are implemented by the Bureau of Industry and Security (BIS) within the Department of Commerce. The BIS implements and enforces export control regulations relating to the export of goods and technologies that have solely civil applications as well as those having both civil and military applications (known as “dual use” commodities). The governing regulations, EAR, include a detailed list of items subject to the jurisdiction of BIS: the Commerce Control List (CCL). Whether a license is required to export an item on the CCL is determined by examining the precise classification of the item, the destination of the item, end-use, and the end-user. BIS also maintains the Denied Persons List and the Entity List, which identify specific persons and entities to which exports are not permitted without the prior approval of BIS. It also maintains the Unverified List, which identifies end-users subject to additional review prior to export.
The CCL includes 10 categories:
- Nuclear Materials, Facilities, and Equipment
- Materials, Chemicals, Microorganisms and Toxins
- Materials Processing
- Electronics
- Computers
- Telecommunications and Information Security
- Lasers and Sensors
- Navigation and Avionics
- Marine
- Propulsion Systems, Space Vehicles, and Related Equipment
State Department Directorate of Defense Trade Controls—DDTC
Agency: State Department Directorate of Defense Trade Controls—DDTC
Laws: Arms Export Control Act
Regulations: ITAR—International Traffic in Arms Regulations 22 CRF Parts 120–130
Lists to Look for:
The International Traffic in Arms Regulations (ITAR) (22 CFR 120–130) are implemented by the State Department’s Directorate of Defense Trade Controls (DDTC). The Department of State regulates the export of defense articles, technical data, and defense services. The ITAR include a list of regulated items, the Munitions List, which contains items developed for a military application without a predominant civilian application. The Munitions List includes such things as toxicological agents and auxiliary military equipment (including cameras and military cryptographic devices, software, and components). Unless an exemption applies, a defense article may not be exported to a foreign country or a foreign national before the government issues a license for the export. The Department of State maintains a list of debarred persons and entities whose exporting privileges have been revoked due to ITAR violations.
The Munitions List includes the following categories:
- Firearms, Close Assault Weapons and Combat Shotgun
- Guns and Armament
- Ammunition/Ordnance
- Launch Vehicles, Guided Missiles, Ballistic Missiles, Rockets, Torpedoes, Bombs and Mines
- Explosives and Energetic Materials, Propellants, Incendiary Agents and Their Constituents
- Vessels of War and Special Naval Equipment
- Tanks and Military Vehicles
- Aircraft and Associated Equipment
- Military Training Equipment
- Protective Personnel Equipment
- Military Electronics
- Fire Control, Range Finder, Optical and Guidance and Control Equipment
- Auxiliary Military Equipment
- Toxicological Agents, Including Chemical Agents, Biological Agents, and Associated Equipment
- Spacecraft Systems and Associated Equipment
- Nuclear Weapons, Design and Testing Related Items
- Classified Articles, Technical Data and Defense Services Not Otherwise Enumerated
- Directed Energy Weapons
- Reserved
- Submersible Vessels, Oceanographic and Associated Equipment
- Miscellaneous Articles
Treasury Department Office of Foreign Assets Control—OFAC
Agency: Treasury Department Office of Foreign Assets Control—OFAC
Laws:
Regulations: OFAC–Office of Foreign Assets Control
Lists to Look for:
The Treasury Department’s Office of Foreign Assets Control (OFAC) implements the economic and trade sanctions and, based on US foreign policy and national security goals, targets foreign countries, terrorists, international narcotics traffickers, and those engaged in activities related to the proliferation of weapons of mass destruction. The University typically encounters issues arising under the OFAC regulations when researchers engage in collaborations with foreign nationals overseas or seek to teach classes or perform research in foreign countries. The list of sanctioned countries changes from time to time.
The economic and trade embargoes vary for each country. For example, some countries (e.g., Cuba, Iran) are subject to an almost total embargo whereas certain BU activities in Burma or Iraq probably would be permitted without a license. OFAC also maintains lists of Specially Designated Terrorists and Specially Designated Nationals & Blocked Persons, with whom US persons may not engage in any transactions due to US foreign policy and national security concerns. Transfers of items and information to individuals or entities on these lists are prohibited without the prior approval of OFAC.
Exclusions
Please note that the exclusions below apply only to information and, in some cases, software associated with the research. These exclusions do not apply to equipment, articles, services, or encryption software.
Exclusions for Information That Is Publicly Available or In the Public Domain
A “public domain” exclusion applies if the information is in the public domain and is generally accessible to the public through unrestricted distribution. [15 CFR 734.3(b)(3) under the EAR; 22 CFR § 120.11 under the ITAR.] Public domain information (ITAR) and publicly available information and software (EAR) is published and generally accessible or available to the public through:
- Publication in periodicals, books, print, electronic, or any other media available for general distribution to any member of the public;
- Subscriptions that are available without restriction to any individual who desires to obtain or purchase the published information;
- Websites available to the public free of charge or at a cost that does not exceed the cost of reproduction or distribution;
- Libraries open to the public, including most university libraries;
- Patents and open (published) patent applications;
- Release at an “open” conference, meeting, seminar, trade show, or other open gathering in the US (ITAR) or anywhere (EAR), which is generally accessible by the public for a fee reasonably related to the cost and where attendees may take notes and leave with notes;
- Fundamental research (see below); or
- Educational information (see below).
Limited government-sponsored research exclusion: Certain government-sponsored research on goods, software, or technology subject to national security contract controls under the EAR may be eligible for an exclusion provided that the university abides by the government restrictions (15 CFR § 734.11).
Exclusion Relating to Fundamental Research
The export control regulatory schemes acknowledge the importance of open, fundamental research at universities. Basic and applied research in science and engineering conducted on campus resulting in information that is ordinarily published and shared broadly within the scientific community is generally considered to be “fundamental research” and is excluded from export license requirements. Generally speaking, the results of fundamental research are in the “public domain” under ITAR and are not subject to the EAR under the provisions related to “publicly available technology,” “published information and software,” “information resulting from fundamental research,” and “educational information.”
Note that the fundamental research exclusion for universities does not apply to faculty or students who are performing research at companies, including companies that license university technology. The fundamental research exclusion applies only on campus.
In order to be considered “fundamental research,” the research cannot be subject to restrictions on the publication of the information resulting from the research and cannot exclude participation of foreign nationals. If the university or the researcher accepts broader restrictions on the publication of the results—whether formally (such as in a sponsored research agreement) or informally (such as a “handshake” agreement)—or has agreed to accept specific national security controls, then the fundamental research exclusion will not apply.
By qualifying under the fundamental research exclusions of EAR and ITAR, the university generally can avoid the problems associated with “deemed exports” of technical data. In this manner, a university can maintain its open research and education environment while also complying with the export regulations.
Educational Information Exclusion
A “teaching” exclusion allows for the disclosure of educational information that is released by instruction in courses identified in the university catalog and associated teaching laboratories of academic institutions (EAR 15 CFR § 734.9), or information concerning general scientific, mathematical, or engineering principles commonly taught in schools, colleges, and universities [ITAR 120.10(a)(5)].
Exclusion ‘Red Flags’ to watch for
If you are asked to do any of the following, you should consult with the Sponsored Programs office (Charles River Campus) or Sponsored Programs office (Medical Campus) to ensure that you do not compromise your ability to fall within the exclusions from export control regulations:
- Accept publication controls or access/dissemination restrictions (such as approval requirements for use of foreign nationals), enter into confidentiality or nondisclosure agreements on subjects that are of interest for your research, or otherwise agree to withhold results in research projects conducted at the University or that involve University facilities, students, or staff.
- Accept proprietary information that is marked “export controlled”.
- Provide citizenship, nationality, or visa status information for project staff or include such information in proposals. It may be a violation of Immigration and Naturalization Service regulations and the federal Privacy Act to provide this type of information.
- Agree to background checks or other arrangements where the external sponsor screens, clears, or otherwise approves project staff. University policy allows for background screening conducted by the University when appropriate to the position.
- Attend meetings if foreign nationals are prohibited from attending. Do not sign the DD 2345, Militarily Critical Technical Data Agreement, as a condition of attending a conference or receiving materials from the government.
- Travel to or plan collaborations of any kind with governments, entities, or nationals from sanctioned countries as listed at the following sites:
It is important that you be mindful of these red flags so as not to compromise your ability to preserve the “publicly available” and “public domain” exclusions provided by the government, including that afforded to fundamental research. Without exclusions, the EAR or ITAR licensing requirements may apply to information (technology or technical data) concerning controlled commodities or items. Unless a license exclusion applies, a license may be required before information is conveyed (even visually thorough observation) to foreign students, researchers, staff, or visitors on campus and before information is conveyed abroad to anyone. The University’s mission of education and research and the international nature of science and academic discourse require that we maintain an open academic environment without regard to citizenship or visa status. The export regulations provide appropriate “safe harbors” for fundamental research to protect the University. By remaining alert to these red flags and obtaining the appropriate guidance, you can help assure that the faculty, students, and staff of the University do not compromise our academic standards and do not violate the export regulations.