Export controls are United States federal laws that regulate the transfer of technology, services, equipment, goods, software, and information to foreign nationals and foreign countries. The laws implemented by the Department of Commerce (through the Export Administration Regulations or EAR) and the Department of State (through the International Traffic in Arms Regulations or ITAR) apply to the transfer of specific items, technology, information, equipment, or software and the provision of certain services to foreign persons in the U.S. or abroad. A “foreign person” is a person who is not a lawful permanent resident of the U.S., a foreign corporation, entity, or group that is not incorporated or organized in the U.S., or any foreign government. In addition, the Office of Foreign Asset Control (OFAC) in the Department of Treasury prohibits transactions with specific countries subject to boycotts, trade sanctions and embargoes.
The vast majority of exports do not require government licenses. Only exports that the U. S. government considers “license controlled” under the EAR and ITAR require licenses (note that some controlled exports don’t require a license). Export controlled transfers usually arise for one or more of the following reasons:
a) The nature of the export has actual or potential military applications or economic protection issues
b) Government concerns about the destination country, organization, or individual, and
c) Government concerns about the declared or suspected end use or the end user of the export
Most of the research done at JHSPH is excluded from the export control laws due to the “fundamental research exemption.” Fundamental research is defined as “basic and applied research in science and engineering, the results of which ordinarily are published and shared broadly within the scientific community, as distinguished from proprietary research and from industrial development, design, production, and product utilization, the results of which ordinarily are restricted for proprietary or national security reasons.” Thus, to fall under the fundamental research exception, there cannot be any limitations on dissemination or publication of the information and the information must be publicly available or intended to become publicly available. If the fundamental research exemption does not apply and the technology is controlled, or if the transactions are with a country on the OFAC list, a license may be required prior to exporting items or information.
In spite of our fundamental research exemption, licenses may still be required to conduct certain activities that involve transferring controlled technology or information to foreign nationals who are citizens of certain embargoed countries. This restriction may apply both to foreign nationals who are physically in the U.S. (“deemed exports”) and to foreign nationals in another country.
When an item is controlled, a license may be required before the technology can be exported. This requirement relates not only to tangible items (prototypes or software) but also to the research results themselves. Further, the term “export” can mean not only technology leaving the shores of the United States (including transfer to a U.S. citizen abroad whether or not it is pursuant to a research agreement with the U.S. government), but also transmitting the technology to an individual other than a U.S. citizen or permanent resident within the United States. Even a disclosure to a foreign researcher or student in an JHSPH laboratory may be considered a “deemed export”.
International Traffic in Arms Regulations (ITAR)
Export Administration Regulations (EAR)
Office of Foreign Assets Control
Recent global events have caused Congress and the Administration to take steps that have tightened requirements on "restricted persons" that could have serious implications for university research programs. Clauses have been reported that attempt to restrict foreign nationals from conducting research on awards granted to universities or which require prior advanced approval from a sponsor for a foreign national to participate in a particular (unclassified) research project. Clearly such restrictions are not compatible with the educational environment of the Johns Hopkins School of Public Health. No foreign national granted a visa by the US government should be denied access to courses, research or publications generally available on campus. To date, JHSPH has refused, in all cases, to accept this restriction in any of its awards. In the present climate, we might expect to see more instances of attempts to include such restrictions in future awards. Should JHSPH faculty learn from their program officers early on of any attempt to incorporate such restrictions in their pending awards, please notify your contract administrator in Committee on Human Research.
For reference, the current JHSPH policies governing the openness of research are contained in Policies and Procedures 14.2 and in the report entitled In the Public Interest. A Report Of The Ad Hoc Faculty Committee On Access To And Disclosure Of Scientific Information, June 2002. Last updated 10/16/03
If you think you may need a license, contact the Office of Graduate Education and Research or the JHU Compliance Officer, Mike Alexander. Do not transfer anything until a determination has been made that you do not need a license or a license has been granted. Please remember that it takes time for a license application to be processed.
Violation of export control laws can result in civil and criminal penalties for the individual and the university. Historically, the severity of the penalties has been eliminated or reduced by voluntary self disclosure. If you think you may have mistakenly violated the export control laws, contact the Office of Graduate Education and Research.
A training module on export controls was designed for the Johns Hopkins research community. It is available on the Compliance Training website. Case studies are available for review for examples of practical applications of export controls.
For background information on export controls, you can view the following presentations:
Complying with Export Controls
Export Controls Review
Elizabeth Peterson, Research Regulations Specialist
(410) 502-0433 or firstname.lastname@example.org