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U-M’s export controls compliance guidelines are articulated in a memorandum from the Vice President for Research. The guidelines express the goal of adhering to the federal export controls regulations while maintaining U-M’s “openness in research” policy (Regents' Policy Concerning Research Grants, Contracts, and Agreements; SPG 303.01).
The export control laws primarily consist of three separate federal regulations, administered by separate federal agencies. These regulations outline restrictions and licensing requirements for exporting items, technology, services, and/or data. Each agency maintains various lists that identify the items under its jurisdiction (see References and Resources below).
International Traffic in Arms Regulations (ITAR) – administered by the U.S. Department of State Directorate of Defense Trade Controls, ITAR regulates items and services related to military/defense applications, including spacecraft and satellites.
Export Administration Regulations (EAR) – administered by the U.S. Department of Commerce Bureau of Industry and Security, EAR covers "dual use" civilian/military items and technology and some items that have solely civilian use.
Office of Foreign Assets Control (OFAC) - administered by the U.S. Department of the Treasury, OFAC covers restrictions due to foreign trade embargoes and economic sanctions.
Some items might be covered by more than one regulation and agency. Always check the resource lists for each regulation when considering a specific activity (e.g., shipping, travelling internationally, research).
Exclusions & Exemptions
The export controls regulations have a variety of exclusions and exemptions. For universities, the most pertinent is the Fundamental Research Exclusion (FRE) as identified in the National Security Decision Directive (NSDD) 189. This directive defines fundamental research and declares that federally sponsored university research should be unimpeded by export controls unless there are legitimate national security concerns at stake.
Fundamental Research Criteria
In general FRE applies to:
- Basic and applied research in the sciences and engineering
- Research conducted at an accredited institute of higher learning within the U.S.
- Research in which:
- The results will be maintained in the “public domain” (i.e., information which is generally available or accessible to the general public via any media or form)
- There are no contractual clauses or informal agreements to restrict the dissemination of results
- There are no restrictions on who can participate in the research
Fundamental research status is not affected when a sponsor of U-M research requires prepublication review of research results or a temporary delay in publication to ensure that the publication would not:
- Inadvertently divulge proprietary information that the sponsor has furnished, or
- Compromise patent rights
Export Control Criteria
FRE does not apply, and the research is considered “export controlled,” when:
- The subject matter of the research deals with military or dual-use technologies listed within the export control regulations; and
- The university accepts restrictions on the publication of scientific and technical information resulting from the project or activity, or
- The grant contract contains specific restrictions on persons of specific nationalities from participating
At U-M, our default position is that all research is fundamental and we initially presume that all research can proceed free of any export controlled restrictions. U-M also takes exception on three basic grounds to potential restrictions on access by foreign nationals:
- Other applicable laws, regulations, guidelines, and clauses, to which the University complies, adequately protect the concerns of the federal government regarding the export of sensitive information.
- Acceptance of participation restrictions in research contracts and agreements would be in violation of the U-M nondiscrimination policies and State of Michigan nondiscrimination laws (specifically, MCLA 37.2202).
- The inability to allow access to data by foreign nationals is a de facto restriction on the ability of the faculty to publish the results containing such data in publicly available journals or to present such data at professional meetings.
However, ITAR and EAR apply the fundamental research exclusion differently and the items themselves (e.g., technology, technical data, etc.) remain subject to export controls even if the research with them is deemed fundamental. This impacts research activity, including international travel, open access, shipping of items, proper use of information technology, and more.
The Export Controls Officer works with ORSP to conduct a case-by-case review of pending sponsored awards to verify potential export controls requirements as initially identified on the U-M Proposal Approval Form (see PAF Process). Investigators work with the Export Controls Officer to develop a Technology Control Plan as applicable (see TCP Process).
Fines & Sanctions
Potential criminal and civil penalties can be severe for a U-M researcher who either willfully or knowingly violates the export control regulations and for the university. Each federal regulation has its specific fine structure, but the maximum penalty among the agencies is:
- 20 years in prison (for the individual), and/or
- $1 million fine per violation (for the individual and the university)
Civil sanctions involve lower fine amounts but may include denial of export license(s), forfeiture of research funds and/or activities, etc.
Violations of the export control regulations include, but are not limited to:
- Export (including deemed exports) of controlled items or technology to a restricted country or embargoed destination
- Re-export of a foreign-produced direct product of U.S. technology or software
- Transfer of items or technology to a denied entity or person (i.e., failing to consider the end use of the item, or end user of the item per OFAC regulations)
- Failure to adhere to the terms and conditions of an export license
- Failure to report known violations, including failure to self-report
Reporting Export Control Violations
Violations must be reported completely and expediently. Each regulation specifically states that self-reporting will be taken into consideration when an agency accesses fines or penalties to violators of the regulations. If you suspect that you have violated a term of your Technology Control Plan, or the regulations in other ways, contact the U-M Export Controls Officer as soon as possible.