Division of Research
Export Controls
As Brown University is an accredited U.S. academic institution, the vast majority of the University’s activities are shielded from export controls under the Fundamental Research, Educational Information and Public Information exclusions.
All Brown University faculty, students and staff are responsible for understanding and complying with U.S. export control laws and regulations and with Brown’s Export Control and U.S. Economic Sanctions Policy. Brown has established a network of internal controls to alert compliance officers when an activity may require export control review.
Controlled Unclassified Information (CUI) is federally regulated information that must be protected from unauthorized access or accidental public disclosure.
Updates
The Bureau of Industry and Security (BIS) has released new export control regulations for advanced semiconductors and integrated circuits going to U.S. Arms Embargoed Countries, which are specified in BIS Country Group D:5.
What Are Export Controls?
Export controls are federal laws that regulate the shipment or transfer, by whatever means, of controlled items, software, technology or services out of the U.S. Export controls also restrict the release of certain information to foreign nationals here in the U.S. — also known as a “deemed export.” Export controls apply to all international activities regardless of funding status or source. The two main regulations are the Export Administration Regulations (EAR) and the International Traffic in Arms Regulations (ITAR).
Additionally, Brown University has to comply with U.S. embargoes and sanctions regulations, which are overseen by the Office of Foreign Asset Controls (OFAC) within the U.S. Treasury Department.
Export Control Definitions
An export occurs whenever any item (i.e., any commodity, software, technology or equipment) or information is sent from the U.S. to a foreign destination or provided to a foreign national here or abroad. The manner in which the transfer or release of the item or information occurs does not matter.
For example, a product does not have to travel across the U.S. border to be considered an export, and an export may not involve a product at all. Just exposing a non-U.S. citizen to information about export-controlled technology, even on U.S. soil, may fall under U.S. export control regulations. Such a disclosure of information, if made without a proper license, is potentially a violation of federal law that could result in harsh penalties.
Some examples of export activities include: the shipment of items, written or oral communications, hand-carrying items when traveling, providing access to or visual inspection of equipment or facilities, and providing professional services.
Every product in the U.S. has an export control classification. The classification determines the level and type of export restrictions. Products listed on the U.S. Munitions List fall under the International Traffic in Arms regulations (ITAR) and are highly controlled. They have Roman numeral export classifications, going from Category I to Category XXI.
Products listed on the Commerce Control List are controlled under the Export Administration Regulations and will generally have a five-digit alpha-numeric export control classification number (ECCN), such as 3C005 or 6A003. Many products that are used on a daily basis have an export control classification number of EAR99, which is a catchall designation for products subject to the Export Administration Regulations but not listed on the Commerce Control List.
A “deemed export” refers to the release or transmission of controlled information or technology to any foreign national in the U.S., including students, postdocs, faculty, visiting scientists or training fellows. A deemed export is treated as an export to that person’s home country.
Deemed exports are a primary area of export control exposure for the University. Export-controlled technology is "released" for export when it is made available to foreign nationals for visual inspection, exchanged orally, and/or made available by practice or application under the guidance of persons with knowledge of the technology.
Examples of a “release” include:
- Allowing reading of controlled technical specifications, plans, blueprints, etc.
- Providing a tour of a facility that uses controlled technology
- Allowing someone to inspect a diagram of controlled technology
- Instructing someone on how to use controlled technology
- Giving a presentation about controlled technology
Collaborations with foreign nationals, here at Brown, involving the use of export-restricted information or controlled/restricted areas (e.g., defense items or services, satellite technology, encryption) may trigger the need for a license for deemed exports unless it falls under an exclusion. This applies to all activities at Brown, not just sponsored research.
Dual-use items are items, information and software that are primarily commercial or civil in nature but also have potential military applications (e.g., GPS units). Dual-use items may require an export license depending on the item, the recipient, the recipient's citizenship or country of destination and the item's application. Dual-use items that are identified on the Export Administration Regulations Commerce Control List have an ECCN and are of elevated strategic concern.
An export license is a written authorization provided by the federal government granting permission for the release or transfer of export controlled information or item under a defined set of conditions. Determining when you need an export license can be very complicated. Brown’s Export Control team, part of Research Integrity, will determine if a license is required or if there is a valid license exception or other exclusion that may apply. It is important to note that obtaining an export license can take three to six months and there is no guarantee that a license will be granted.
In most cases, low-end items that are commercially available do not require export licenses. There are some important exceptions, including items containing strong encryption technology or software (e.g., laptop computers, web-enabled cell phones) and items that have dual-use applications or are restricted under other regulations or sanctions.
An export license exception is a special authorization that allows you to export or re-export, under very specific conditions, items that would otherwise require an export license.
A foreign national is defined as any natural person who is not a U.S. citizen, or is not a lawful permanent resident of the U.S. (i.e., does not have a green card), or who does not have refugee or asylum status.
A foreign entity is any corporation, business, or other entity that is not incorporated to do business in the U.S. This includes international organizations, foreign governments or any agency of a foreign government.
A restricted party is an individual, company, organization or vessel with which certain interactions and transactions are restricted. U.S. persons or entities (including their subsidiaries and agents in other countries) are generally prohibited from dealing with a restricted party without a specific license. Brown has an institutional site license to a comprehensive software program to perform restricted party screening on any outside party doing business or collaborating with Brown.
A Technology Control Plan is a document drafted by the Export Control team in collaboration with the researcher specifying procedures that will be taken in order to safeguard and control access to information or items that are export restricted. In general, a Technology Control Plan will outline what the restricted information or item is, who will have access to it, how access will be monitored and controlled, how the information/item will be physically and electronically stored, what information about it can be shared or presented, and what will be done with the information/item once the project is completed.
U.S. 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 department is responsible for different areas of export controls. It is important to note that jurisdiction on some items may be shared by more than one department.
Department of State
The Department of State, through the Directorate of Defense Trade Controls, administers ITAR. ITAR governs the export of information related to military, weapons and space-related items and services (e.g., missiles, satellites, firearms) as enumerated on the U.S. Munitions List.
Department of Commerce
The Department of Commerce, through the U.S. Bureau of Industry and Security, administers the Export Administration Regulations. These regulations control the export or transfer of dual-use items. 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 Export Administration Regulations 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 Export Administration Regulations, only a very small number of items actually require a license to export.
Anti-Boycott Provision
In addition to controlling dual-use items, the Export Administration Regulations also prohibit U.S. participation in certain restrictive trade practices and foreign boycotts. The anti-boycott provisions of the Export Administration Regulations 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; and
- certify that an item or shipment contains no items from a boycotted country.
The anti-boycott regulations apply to any foreign boycott. The University is required to promptly report any occurrences of restrictive trade practices to the government. Contact the Export Control team promptly if you believe that you have encountered any anti-boycott activities.
U.S. Department of Commerce Entity List
The U.S. Department of Commerce Entity List contains foreign persons including businesses, research institutions, government and private organizations, and individuals and other types of legal persons that are subject to export and transfer restrictions.
Research collaborations and the exchange of items or information with any listed institution, as well as visitors to Brown who are employed by, representatives of, or affiliated with any institution on the Entity List, must be vetted by the Export Control team.
Unverified List
The Unverified List is a precursor to the Department of Commerce Entity List. Parties are added to the Unverified List when there may not be sufficient information to add the foreign person/entity at issue to the Entity List. Parties listed on the Unverified List are ineligible to receive items subject to the Export Administration Regulations by means of a license exception, and there are additional filing and documentation requirements if items are transferred to a party on the list.
Department of the Treasury
The Department of the Treasury, through OFAC, is responsible for enforcing all U.S. embargoes and sanctions programs. Special care must be taken when dealing with sanctioned and embargoed countries. Depending on each country’s embargo or sanction program, different activities may or may not be prohibited without a specific government authorization or license.
In some cases, all activities are subject to strict licensing requirements and in many cases, licenses will not be granted.
OFAC Licenses
A license is an authorization from OFAC to engage in a transaction that otherwise would be prohibited. There are two types of licenses: general licenses and specific licenses. A general license authorizes a particular type of transaction (e.g., undergraduate educational exchange) without the need to apply for a specific license. A specific license is a written document issued by OFAC to a particular person or entity, authorizing a particular transaction in response to a written license application. Individuals engaging in transactions pursuant to general licenses or specific licenses must make sure that all conditions of the licenses are strictly observed.
Penalties for Noncompliance with U.S. Export Controls
Fines for noncompliance with export controls are quite severe and can be levied against both the individual and 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 Brown University’s Export Control and U.S. Economic Sanctions Policy.
| Regulation Type | Civil Penalties | Criminal Penalties |
|---|---|---|
| Export Administration Regulations (EAR) | $295,141 per violation | $50,000 to $1 million per violation. Up to 20 years in prison. |
| International Traffic in Arms Regulations (ITAR) | $1,094,010 per violation | Up to $1 million per violation. Up to 20 years in prison |
| Office of Foreign Assets Control (OFAC) | $289,238 per violation | Up to $1 million per violation. Up to 20 years in prison. |