It is the policy of the University of Wisconsin–Madison to fully comply with U.S. export control laws. Even though openness in research and free dissemination of research results are core values at UW–Madison that are institutionalized in research policy, export control laws can still apply to many activities related to the teaching, research and service missions at UW–Madison. These activities include research with proprietary industry technology, international shipments of advanced scientific equipment and biological materials, participating in international research collaborations, space-related research, international travel, and use of computer software with encryption features.
Each UW–Madison employee and student has the obligation to determine how export controls might apply to their activities, and to work cooperatively with the University export control management structure to ensure export control compliance.
Violation of export control laws can potentially lead to severe criminal and/or civil sanctions for the individual who violates the law.
U.S. Export Control laws, including the Export Administration Regulations (EAR) and the International Traffic in Armaments Regulations (ITAR), can apply to University research activities. The ITAR primarily regulates items and technology that are specifically designed or modified for military purposes, while the EAR regulates most other items and technology. With the exception of services controlled by the ITAR and certain encryption software, neither the EAR nor the ITAR apply to information that is in the public domain.
For purposes of these laws, “export” means not only the physical shipment of items from the United States to a foreign country, but also the release of controlled technology to foreign persons within the United States by way of visual inspection, oral transmission, or training (“deemed export”). In other words, a prohibited export can occur by the mere presence of a foreign researcher or student in a University laboratory, if the laboratory contains equipment or technology that is export controlled, and the foreign individual can learn information about the controlled technology or information that is not in the public domain.
It is important to keep in mind that lawful permanent residents of the United States (i.e., persons who possess a “green card”) and individuals in the process of obtaining asylum are treated the same as U.S. citizens under both the EAR and ITAR.
Fundamental Research Exemption
Under both laws, there are various exemptions, including exemptions that apply to information generated in the course of University research activities (sometimes referred to as the “fundamental research exemption”). Generally, under the ITAR, the fundamental research exemption applies to information that arises from University research and which has already been published. The fundamental research exemption under the EAR is broader – generally, the fundamental research exemption applies to information that arises from University research so long as the University has not accepted any restrictions on how the research results can be published, whether or not the research results have in fact been published. A common problem area is where a University researcher accepts third party technology under a non-disclosure agreement. The confidentiality obligation of the non-disclosure agreement can negate the fundamental research exemption with respect to the third-party technology, even if it is used in a research activity that otherwise qualifies for the exemption.
If an exemption does not apply, an export license may be required prior to export. In addition, the Department of Treasury’s Office of Foreign Assets Control (OFAC) enforces embargoes, and maintains lists of individuals and entities with which certain transactions are prohibited. Various other federal agencies, such as the Department of Energy, have limited export jurisdiction.