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DISCUSSION:
In general, the most relevant U.S. export controls are grounded in three
separate sets of federal regulations:
- The embargo laws and regulations are codified
at 31 CFR Part 500
et seq. and are administered by the Office of Foreign Assets Control
(OFAC), a unit of the U.S. Department of the Treasury, and so they are
usually called generically the “OFAC Regulations.” The OFAC
Regulations affect commerce with a specified list of embargoed countries
and with certain “specially designated nationals” (SDNs).
The OFAC Regulations can change from time to time, often on little or no
notice, because the statutory powers given the President are designed to
be used for difficult and delicate foreign policy situations where urgent
action may be needed to protect U.S. national foreign policy or national
security interests;
- The ITAR are codified at 22 CFR Part 120
et seq. The ITAR govern the production of “defense articles”
and provision of “defense services” by U.S. persons as those
terms are defined within the ITAR. A core part of the ITAR is the U.S.
Munitions List (USML) (22 CFR Part 121),
which defines a number of categories of such items [3]. The
ITAR is administered by the U.S. Department of State’s Directorate
of Defense Trade Controls (DDTC); and
- The U.S. Export
Administration Regulations (EAR) are codified at 15 CFR Part 730
et seq. The EAR govern the export of “dual use” items [4]
that are listed within the Commerce Control List (CCL) (15 CFR Part 774,
Supplement No.1). The EAR are administered by the U.S. Department of
Commerce’s Bureau of Industry and Security (BIS).
As a practical matter, there are two points in the
academic traveler’s travel planning process where U.S. export control
laws may apply to an international trip: when evaluating what may be taken
along as personal baggage and when determining what may need to be sent or
shipped separately to the foreign destination. For instance, if the traveler
intends to perform some field research with a colleague in another country or
to provide a technological demonstration at a conference, he or she may need
to send to the site separately certain equipment (e.g., computers, sensors,
measuring instruments, reagents, etc.), data or software.
Academic personnel must consider the
potential effect of each set of U.S. export control regulations on the
proposed international travel to assure that both the institution and the
individual traveler are in compliance. U.S. export control laws are
principally concerned with whether the academic traveler will take and then
disclose any controlled technology or other controlled information to
non-U.S. persons (e.g., in papers or on their laptop computers) or will
export any controlled items (e.g., sensors, test instrumentation, reagents,
biological materials or other similar tangible goods) to non-U.S. persons.
Generally speaking, the EAR considers the shipment or delivery of a tangible
good to a non-U.S. person an “export” and regards the disclosure
of controlled information to a non-U.S. person a “deemed export [5].”
However, in the case of academic
travel to Cuba, the current OFAC embargo against Cuba also regulates travel per se by U.S.
nationals to Cuba, even if there is no planned disclosure of any controlled
information or export of a controlled item. So, in the case of any proposed
Cuban travel, the institution and the academic traveler need to take the
additional steps outlined below in Step 4.
Here are the steps to consider in
connection with international travel.
Step 1: Identify the Applicable Regulations
The essential first step in planning
international academic travel is to determine which of the above regulations
apply to the proposed trip. This requires the academic traveler to assess
whether he plans to take any controlled information or materials, or to send
or deliver any controlled goods, to non-U.S. persons outside the United
States. If the academic traveler cannot make that determination, the traveler
should consult the institution’s export control compliance officer and,
if necessary, discuss the identified deemed export or export with the
relevant U.S. regulatory agency.
Moreover, given the current
wide-spread use of laptops and the expansion of laptop memory capacity via
internal and external drives or portable “thumb” or flash drives,
a traveler needs to consider whether his or her laptop or other separate
storage device contains material that has nothing to do with the planned trip
but one or more of the U.S. export regulations. The fact that the academic
traveler merely carries certain information or software to another
country on a laptop or other storage device may be sufficient for federal
agencies to consider that the information or software was
“exported” to that country, even if not actively used by the
traveler in a presentation, discussion, or research in that country.
Step 2: Identify any Applicable Exclusions or Exemptions
If one or more of the regulations
applies to a proposed trip, then the academic traveler must determine if
those regulations provide an express exclusion or exemption for the type of
disclosure or physical export that permits the proposed activity without
getting an export license from the relevant agency. The OFAC regulations, the
ITAR, and the EAR each contain unique forms of exclusions or exemptions and
it is beyond the scope of this Note to cover them all [6].
However, it is vital for institutions and academic travelers to understand
that the so-called “fundamental research” exemption articulated
in various ways by these three sets of regulations does not directly
apply to any settings outside the United States. In other words, what can be
lawfully done with non-American colleagues or students on the home campus
inside the United States is not automatically extended to a laboratory
or field research site in another country with respect to a deemed export or
export, but the EAR will usually permit the presentation at foreign meetings
or conferences of the fruits of academic research undertaken within the
United States. (See
Supplement
No. 1 to Part 734—Questions and Answers—Technology and Software
Subject to the EAR, Questions B (1) and B (4).)
The EAR’s baggage (BAG) and
temporary export (TMP) license exemptions, which are applicable to all
international travel, are especially useful to academics traveling abroad.
The BAG license exception in 15 CFR Part §740.14
permits an American who is temporarily traveling abroad (for example,
teaching or studying as a visiting scholar) to take his or her personal
laptop with normal and customary application software and data for the
traveler’s personal use, provided the laptop is kept under the
traveler’s control and is brought back to the United States at the end
of such travel. Similarly, under the TMP license exception, Part §740.9
an American traveler may take an institution-owned laptop abroad, provided
the laptop is kept under the traveler’s control and is brought back to
the United States not more than one year after the original departure date.
Subject to certain limitations, these license exceptions also allow U.S.
academic travelers to receive shipments, transmissions or releases of
technology exported to them from the United States. However, these EAR
license exceptions do not apply to laptops taken or the receipt of technology
exported to Cuba, Iran, North Korea, Sudan and Syria. Academic travelers
should consult their institution’s export control officer to insure
that the BAG or TMP exception applies to their travel.
In addition, the BIS has also
published a handy FAQ, Supplement
No. 1 to Part 734—Questions and Answers—Technology and Software
Subject to the EAR that contains many familiar instances of academic
travel and relatively clear guidance on how the BAG and TMP exceptions would
treat the incidental disclosure of research findings or other similar data in
the course of such travel.
Step 3: Obtain any Necessary Export License
If the applicable exemptions or
exclusions are insufficient to authorize the type of disclosure or physical
export contemplated by the academic traveler, then the planned activity will
require an export license from the relevant regulatory agency. Each agency
has its own unique application process. License applications under the ITAR
and the EAR usually require processing through an online account maintained
only by the institution itself. So, there should be careful coordination
between the academic traveler and the institution’s export control
officer to insure that the license application is prepared and submitted in a
timely manner and in accordance with the applicable agency’s specific
procedures. These licensing agencies have their own processing schedules, and
an academic traveler will be frustrated if the institution files a license
application on a “last minute” basis because the processing times
for such licenses can often exceed 30 days. In sensitive cases involving
certain technology or particular countries, complete processing within the
BIS or the DDTC may take 60, or even 90, days. Moreover, occasionally, the
government issues the license subject to specific terms and conditions. The
academic traveler needs to understand and abide by these limitations, which
may alter or restrict the planned international activity.
Step 4: Determine if the Travel Itself is Controlled
Neither the EAR nor the ITAR regulate
academic travel itself. These regulations only prohibit the export of
tangible goods or the deemed export of certain forms of technology or
information that impinge upon U.S. national security interests if shared with
non-U.S. persons. However, under the OFAC regulations, the government retains
the right to regulate travel itself to certain destinations, as a matter of
U.S. foreign policy. Under the OFAC embargoes in place as of August 2009,
only travel to Cuba is per
se regulated.
At the present, OFAC may issue
licenses to authorize Cuban travel and specific related transactions for
certain educational activities by students or employees at U.S. undergraduate
or graduate institutions. If OFAC issues a license, it must be renewed after
one year. Once an academic institution receives a specific license, the
following categories of travelers affiliated with that academic institution
are authorized to engage in travel-related transactions incident to the
following activities without seeking further authorization from OFAC:
- Undergraduate or graduate students
participating in a structured educational program lasting at least ten
weeks in Cuba as part of a course offered at a U.S. undergraduate or
graduate institution [7].
- Persons conducting non-commercial Cuba-related
academic research in Cuba for the purpose of qualifying academically as
a professional (e.g. research toward a graduate degree) [8].
- Undergraduate or graduate students
participating in a formal course of study lasting at least ten weeks at
a Cuban academic institution provided the Cuban study will be accepted
for credit toward a degree at the licensed U.S. institution [9].
- Persons regularly employed in a teaching
capacity at a licensed U.S. undergraduate or graduate institution who
plan to teach part or all of an academic program at a Cuban academic
institution for at least ten weeks [10].
- Cuban scholars teaching or engaging in other
scholarly activities at a licensed college or university in the United
States. Licensed institutions may sponsor such Cuban scholars, including
payment of a stipend or salary and the Cuban scholar may carry all such
stipends or salary payments back to Cuba [11].
- Full-time employees of a
licensed institution organizing or preparing for the educational
activities described above [12].
Overall, these U.S. export control regulations are probably
more tedious to understand and follow with respect to academic travel than
they are actually burdensome in practice, once properly analyzed. However, as
illustrated in the Roth case
outlined at the beginning of this Note, the Department of Justice has
effectively served notice to all U.S. academic institutions that it will deal
firmly with U.S. export control violations that occur in relation to such
academic travel and in interactions with non-U.S. persons.
FOOTNOTES
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