Recent Developments in Research Law
Slocum, J. Michael, Guttag, Eric, Waxman, J. Mark, Williamson, Jill, Journal of Research Administration
An Overview of Export Law and Regulations
Current federal export laws control a wide range of technologies and some of the regulations outlined in them can have a substantial impact on research. These laws control the conditions under which certain information, technologies, and commodities can be transmitted overseas to anyone (including U.S. citizens) or to foreign nationals (even if in the U.S.), and some of these regulations will be outlined in this section.
Export Administration Regulations
The responsibility of the Bureau of Industry and Security (BIS) in the U.S. Department of Commerce is to apply and enforce the Export Administration Regulations (EAR) (15 CFR chapter VII, subchapter C). The EAR is responsible for regulating the export and re-export of numerous commercial items, including those that have dual-use applications, which means that they may be used in both the military and commercial realms. Other government agencies, such as the U.S. Department of State, regulate defense items.
A small percentage of U.S. exports and re-exports regulated by the EAR require a license from BIS. To obtain a license, information must be provided regarding the item that is being exported, its anticipated use, and the recipient and final destination of the item. There are 10 specific categories that require a license: nuclear materials; chemicals, microorganisms, toxins; materials processing; electronics; computers; telecommunications; lasers and sensors; avionics; marine; and propulsion systems (See [section]734.2(a) of the EAR for items that are subject to the EAR).
International Traffic in Arms Regulations
The U.S strictly regulates exports and re-exports of defense items and technologies to protect its national interests in peace and security. The Directorate of Defense Trade Controls (DDTC), Bureau of Political-Military Affairs, Department of State, in accordance with 22 U.S.C. 2778-2780 of the Arms Export Control Act (AECA) and the International Traffic in Arms Regulations (ITAR) (22 CFR Parts 120-130), is charged with controlling the export and temporary import of defense articles and defense services covered by the United States Munitions List (USML). (22 CFR [section] 121.1)
The purpose of ITAR is the control of arms sales to foreign parties to protect U.S. national security and to further U.S. foreign policies. The Core of the ITAR is the United States Munitions List (USML). Items included on this list are those that are deemed to have a military use or one that allows Americans in military situations to defend themselves by disarming or eliminating their adversaries. The ITAR governs license applications for exports dealing with matters related to defense trade compliance and enforcement, and also assumes responsibility for the creation of defense trade reports to Congress and the public (Defense Trade Function Overview, n.d.)
As one would expect, items such as weapons, chemical and biological agents, military vehicles, and equipment all have a military use according to ITAR. However, all satellites and related technology and data are now added to this list. Both the ITAR and the EAR are now subsuming control over applied research such as satellite technology, that was once considered to be of a non-military nature. In spite of a longstanding official policy that exempted fundamental research from the export regimes, these organizations have increasingly been expanding their jurisdictional reach to include items such as satellites (22 CFR [section] 121.1 Category VIII).
Office of Foreign Assets Control
The Office of Foreign Assets Control, or OFAC (2002 CFR Title 31, Volume 2 Chapter V), is part of the U.S. Department of Treasury and is the organization responsible for administering and enforcing economic and trade sanctions. OFAC has the authority to impose comprehensive or selective control over transactions between the U. …