International Activities Basics: Export Controls and Economic Sanctions in the University Context
All U.S. individuals and institutions must comply with federal export control and sanctions laws. These laws restrict the sharing of certain controlled materials and information outside the U.S., and prohibit doing business with certain specified persons or countries, or persons resident in certain countries. It is important to keep these laws and regulations in mind whenever you are engaging in international activities or with international visitors. MIT maintains a website with detailed information on MIT policies and procedures in this space.
Export control laws are chiefly designed to manage exports of weapons, and other sensitive equipment, software, and technology that could have military applications. By restricting access to these sensitive technologies, the federal government seeks to prevent weapons proliferation, promote regional stability, and provide for national security.
The three current export control regimes that are most relevant to universities are the Export Administration Regulations (EAR), administered by the Department of Commerce, the International Traffic in Arms Regulations (ITAR), administered by the State Department, and the National Nuclear Security Administration Foreign Technical Assistance Restrictions (known as Part 810), administered by the Department of Energy.
In addition to export control laws, you must also be aware of economic sanctions laws. These broad prohibitions against business are designed to punish bad actors, such as terrorists or violators of human rights, and to put economic pressure on certain countries and regimes that sponsor activities inconsistent with U.S. policies. The Treasury Department administers economic sanctions laws through its Office of Foreign Assets Control (OFAC). The OFAC website currently lists thirty active sanctions programs.[1] One of the sanctions regulations that is most relevant to universities is OFAC’s list of Specially Designated Nationals and Blocked Persons (SDNs), which contains the names of over six thousand individuals and companies blocked through various sanctions programs. OFAC also has broad-based sanction programs covering the Crimea region, Cuba, Iran, North Korea and Syria.
EAR
The EAR controls the sharing of “dual use” technologies—technologies that can have both civilian and military uses, such as certain computer and electronic equipment, sensors and lasers, and space technology. All specially controlled technologies can be classified through use of a hierarchical list promulgated by the Commerce Department to derive that item’s Export Control Classification Number (ECCN).[2] Arriving at an ECCN for an item allows a user to determine the specific purposes for which the item is restricted (such as national security, regional stability, etc.) and any exceptions. Using this information, a user can determine if the item can be exported to a certain country by referencing the Commerce Country Chart.[3] If a particular item is restricted for export to a particular country, then the export is prohibited unless the user applies for and is granted a special license from the U.S. government. If sought, then it may take several months to obtain a license, if one is granted at all.
In addition to the specially controlled technologies that are designated with an ECCN, virtually all other goods from or within the U.S. are subject to the EAR. These include low-technology and commercially available goods (e.g. off-the-shelf components and retail goods), and such goods are designated as “EAR99.” Generally, these items will not require a license to be exported, but they may still be restricted if being shipped to an embargoed or sanctioned country, to a party of concern as defined by the Commerce Department, or in support of a prohibited end-use (such as for military, nuclear, or weapons uses). Thus, even in cases of normal course international shipments, it is important to confirm that the recipient or destination country is not barred by utilizing the resources available here.
ITAR
The ITAR control the dissemination of defense and military related technologies that do not have material commercial applicability. The ITAR operate much like the EAR, with items being classified via a hierarchical list. There is no “catch-all” for the ITAR like there is for EAR99 items, however. Also, restrictions on the export of items classified under the ITAR are more stringent, which is expected due to their more sensitive nature.
Both the EAR and ITAR cover not just the physical sharing of restricted items outside the U.S., but also “deemed exports” to foreign persons of software or technical information regarding these items or their use. A deemed export of this type exists even if the foreign person is located in the U.S. at the time of disclosure. This restriction is to protect the information from the foreign persons who could return to their home country with sensitive technical information and enable the use of the underlying controlled item.
In general, if the export of certain software or an item to a certain country is restricted, then sharing of such software or technical information on the item to a foreign person from that country is also going to be restricted. This restriction on deemed exports is particularly relevant to the MIT community, given our commitment to open research and the many students and researchers from foreign countries that are studying and working on campus. For this reason, and to support MIT’s policy on open research and free interchange of information,[4] MIT generally only allows export-controlled materials on campus when the work is crucially important to MIT's educational mission. In such cases, a “technology control plan” must be put into place to ensure that the applicable regulations are complied with.
Research and Educational Exemptions
Each of the EAR and ITAR contain similar exemptions that are helpful for universities that carry out educational and research activities. In addition, the EAR and ITAR include exemptions for the sharing of publicly available information.
The most important university-focused exemption to these restrictions is the “fundamental research” exemption. “Fundamental research” is defined as basic or applied research in science and engineering—as opposed to proprietary research or industrial application—where the resulting information is ordinarily published and shared broadly in the scientific community. Under the ITAR, to obtain this exemption the research must be performed in the U.S. at an accredited institution of higher learning.
The fundamental research exemption does not apply to physical materials created during fundamental research (e.g. prototypes, specimens). It also does not include any equipment or technical information that may be used as an “input” to the research. The fundamental research exemption also does not apply to certain controlled encryption software.
National Nuclear Security Administration Foreign Technical Assistance Restrictions
The Department of Energy administers these restrictions on providing technology transfers or assistance to foreign persons with respect to certain nuclear fuel-cycle activities, commercial nuclear power plants, and research and test reactors. Exemptions for publicly available information and fundamental research, similar to the above, apply. However, due to the sensitive nature of nuclear technologies, projects should be considered on a case-by-case basis to ensure compliance.
Economic Sanction Restrictions
Material interactions with those on the SDN list are generally prohibited outright. In contrast, with respect to any proposed interactions (e.g. online classes, donations, commercial relationships) with persons ordinarily resident in the Crimea region, Cuba, Iran, North Korea or Syria, the individual circumstances must be carefully studied to determine if an applicable exemption is available. Importantly, foreign students on campus under student visas can generally be taught like any other student. Also, certain general and edX-specific licenses have been granted that allow specified types of online classes to be provided to learners in sanctioned regions.
MIT Resources and Who to Contact
MIT maintains a website dedicated to export control resources, containing more detail on the above topics and related MIT policies and operational procedures. If you need help, you can contact the MIT Export Control Officer, Janet C. Johnston, by email at exportcontrolhelp@mit.edu, by phone at 617-253-2762. For complex or high-risk issues, the Export Control Officer will work with the Office of the General Counsel for a resolution.
[1] https://www.treasury.gov/resource-center/sanctions/Programs/Pages/Programs.aspx