Regulations

The University of Hawai‘i System (UH) and the Research Corporation of the University of Hawai‘i (RCUH) are subject to United States (US) export control laws and regulations that protect national security and trade which includes, but is not limited to: (1) International Traffic in Arms Regulations (ITAR) (22 CFR Parts 120-130), implemented by the US Department of State; (2) Export Administration Regulations (EAR) (15 CFR Parts 730-774), implemented by the US Department of Commerce; and (3) Office of Foreign Assets Control (OFAC) (31 CFR Parts 500-599), which is part of the US Department of the Treasury, and is primarily responsible for administering and enforcing economic and trade sanctions against certain nations, entities, and individuals.

In sum, these laws and regulations control the export of strategic information, technology, and services, to foreign countries, as well as to foreign nationals inside the US. Failure to comply with export control laws and regulations may lead to significant civil and/or criminal penalties which include, but are not limited to, monetary penalties up to $1,000,000.00 per violation; prison term up to 20 years; denial of export privileges; and debarment from US government contracts.

UH Policies and Procedures Concerning Export Compliance

The Three Primary Sets of Regulations At A Glance

Generally speaking, the export control regulations cover five main types of university activities:

  1. Transfer of controlled information, including technology/technical data, to persons—including US citizens and US entities—outside the US.
  2. Shipment of certain commodities and technology/technical data from the US to a foreign country.
  3. Provision of “defense services” to persons and entities outside the US, as defined by ITAR.
  4. Verbal, written, electronic, or visual disclosure of controlled scientific and technical information related to export-controlled items to foreign nationals, even when such release occurs within the US (deemed exports).
  5. Travel to certain embargoed countries, as defined by OFAC and the Department of State’s DDTC, for purposes of teaching classes, or performing research, or otherwise conducting UH business.

Many other activities may involve export controls and a detailed analysis of each scenario must be conducted to ensure compliance with regulations.

Exports of controlled information or items can take place in many ways. The following are some examples of when US Government approvals may be necessary:

  • Foreign equipment and material purchase, usage and disposal
  • Collaborative efforts involving foreign universities and students
  • Sponsored research agreements
  • International travel
  • The development of and/or dissemination of encryption code
  • Defense services
  • Hand-carried items–laptops, memory devices, etc.
  • Conferences
  • Websites
  • Visual inspections revealing technical data
  • Email
  • International agreements
  • Material transfer agreements
  • Non-disclosure agreements
  • Software and other intellectual property licenses

Exemptions and Exceptions

Export controls laws prohibit the disclosure of information (without a license from Commerce or State) of controlled technical information by any method to a foreign national in the United States (US) or abroad. Methods of disclosure can include: faxes, telephone discussions, e-mail communications, computer data disclosure, face-to-face discussions, training sessions, and even tours that involve visual inspections. However, the licensing requirements for dissemination of information do not apply if one of the following exclusions applies to a specific educational activity:

If you find that one of these exemptions is applicable to your export scenario, contact OEC for confirmation and record-keeping requirements.

The US export control regulations (15 CFR § 734.8(a) and (b), and 22 CFR § 120.11) provide for a Fundamental Research Exclusion (FRE) from the licensing requirements for information arising during or resulting from fundamental research conducted at an accredited institution of higher learning located in the US. If research or other activity controlled for export is eligible for the FRE, and not otherwise restricted by ITAR or OFAC regulations, foreign nationals located in the US may participate in the research. It is important to note that even though the research results (“output data”) may be eligible for the FRE and accessible to foreign nationals; information received from the sponsor (“input data”) may still be restricted to US persons only, depending on its export classification.In general, the FRE is destroyed if UH accepts any contract clause that:

  • forbids the participation of foreign nationals;
  • gives the sponsor the right to approve publications resulting from the research; or
  • otherwise operates to restrict participation in research and/or access to and disclosure of research results

“Side deals” between a principal investigator (PI) and sponsor to comply with such requirements, even though it may not be stated in the research contract, may also destroy the FRE and expose both the PI and the UH to penalties for export control violations. Such side deals may also violate other UH policies.

Under EAR, the FRE is not available for certain types of encryption, as detailed in 15 CFR § 734.8(a).

Read additional information concerning FRE and Deemed Exports.

The ITAR exempts from export controls information concerning general scientific, mathematical, or engineering principles commonly taught in schools, colleges and universities, per 22 CFR § 120.11(a)(5).The EAR also contains an exemption from export controls, per 15 CFR § 734.9, for information that is “educational”–i.e., information released by instruction in catalog-listed courses at the university, including through lectures, instruction in teaching laboratories, and inclusion in course materials. The EAR’s “educational information” exemption also extends to software, with the exception of certain encryption software.

This exemption represents the broadest exclusion under the EAR and ITAR. Specifically, it allows both deemed exports as well as exports from the US of information and software that is already published, with the exception of certain encryption software. While the EAR and the ITAR define “publish” somewhat differently, essentially under both regulatory regimes information becomes published when it is generally accessible to the interested public in any form such as:

  • readily available at libraries open to the public or at university libraries;
  • in patents and published patent applications available at any patent office;
  • released at an open conference, meeting, seminar, trade show, other open gathering; or
  • published in periodicals, books, print, electronic, or other media available for general distribution (including websites that provide free uncontrolled access) or for distribution to a community of persons interested in the subject matter, such as those in a scientific or engineering discipline, either free or at a price that does not exceed the cost of reproduction and distribution

The US export regulations (22 CFR § 125.4(b)(10)(i-iii) and 15 CFR § 140.13(f), for releases of ITAR-controlled technical data or EAR-controlled technology or source code to bona fide full-time regular employees of UH. Under this exemption, UH is authorized to release technical data, technology or source code to foreign nationals who are employees of the university within the United States, provided that:

  • the employees’ permanent abode is in the US throughout the period of employment;
  • the employees are full-time, regular employees of the UH (including RCUH);
  • the employees are not nationals of a sanctioned country;
  • UH complies with certain additional legal requirements set forth in the ITAR/EAR; and
  • the transfer does not involve encryption or source code controlled by EAR for Missile Technology reasons.

Important: It is important to note that this exclusion/exemption is only available to O-1 or H1-B visa holders. Also, this exclusion does not authorize exports of items, software, or technical data outside the US.

OEC must be contacted when this exemption is utilized so the necessary documentation may be completed.