Export Controls Policy

1      Background

Franklin & Marshall College supports the AAUP statement that “The common good depends upon the free search for truth and its free exposition. Academic freedom is essential to these purposes and applies to both teaching and research. Freedom in research is fundamental to the advancement of truth.” The College strives to help faculty exercise responsible use of their academic freedom, thus providing an incubator for fundamental ideas and their explication in a conducive environment that respects and adheres to United States federal guidance. 

Federal laws restrict the export of certain goods, information, and technology.  These laws primarily focus on technology that could have military, nuclear, or aerospace applications, but in some instances, can apply to such seeming innocuous items as laptop computers and cell phones.  As part of a greater enforcement trend in recent years regarding U.S. export controls, the various government agencies with responsibility for enforcing export control regulations have increasingly turned their attention to compliance in the higher education setting.  Although the emphasis has largely been directed toward academic research institutions, all higher education institutions, including schools such as Franklin & Marshall College, are affected by and must comply with these export control laws.

Federal Penalties

Export control laws are serious matters that carry serious penalties for both the individual violator and the College, including:

1.             Civil fines of up to five hundred thousand dollars ($500,000) per violation; seizure/forfeiture of the goods, technology or research product; and/or loss of export privileges.

2.             Criminal fines of up to one million dollars ($1,000,000) per violation; and/or up to ten (10) years in prison.

3.              Risk of losing federal funding.

2      Contents

Section 1        Background

Section 3        Guidelines

Section 4        Travel to Certain Countries

Section 5        Travel With Laptops, GPS, Cell Phones, and Other Common Items

Section 6        Research Contracts

Section 7        Website address for this policy

Section 8        Related information

Section 9        Who approved this policy

Section 10       Origination/revision dates

3      Guidelines

Franklin & Marshall College intends to fully comply with export control laws as they apply to the College's activities.  Under no circumstances shall faculty members, employees, or other persons acting on behalf of the College engage in activities in contravention of U.S. export control regulations.  Primary responsibility for compliance with export control laws lies with each individual faculty or staff member.

A vast majority of scholarly work conducted by F&M faculty and students is exempt from export control concerns under the Fundamental Research Exemption (FRE). Federal law defines Fundamental Research as “basic and applied research in science and engineering, where the resulting information is ordinarily published and shared broadly within the scientific community. Such research can be distinguished from proprietary research and from industrial development, design, production, and product utilization, the results of which ordinarily are restricted for proprietary reasons or specific national security reasons…”

Questions regarding the applicability of export control laws should be directed to the Associate Dean of the Faculty.  The vast majority of teaching, research, and travel conducted by F&M faculty and employees will come within one or more of the various exceptions to the export control laws.  However, the regulations have the potential to limit certain research opportunities, affect publication rights, and prevent international collaboration in certain research areas.  Export controls are most likely to affect F&M faculty and staff in the following potentially overlapping situations:

1.              Traveling abroad;

2.             "Sharing" (broadly defined and includes emails) science or technology-based research with a non-US citizen, whether on U.S. or foreign soil; or

3.              Entering into a contract (including a grant) related to science or technology.

Compliance with export controls must be considered and achieved before traveling, engaging in science or technology-based research, or engaging in any other activity that may be export controlled.  In most cases, this will simply involve confirming that the travel/research falls within an exception to the export control laws.  In the few cases where the activity does not fall within an exception, the Associate Dean of the Faculty, as the College's "empowered official" (see below), will determine whether or not the College will pursue an export license from the relevant governmental agency or whether it is not feasible to engage in the export.  The license process can take up to six (6) months.

4      Travel to Certain Countries

If you are traveling abroad, the first thing to know is whether you are visiting a country that has been sanctioned by the U.S. Office of Foreign Asset Control ("OFAC;" see list here: http://www.treas.gov/offices/enforcement/ofac/programs/index.shtml).  Travel to these countries is heavily regulated, and in some instances prohibited.  Anyone seeking to travel to one of these countries on College-related business or research should consult with the Finance Office.

5      Travel With Laptops, GPS, Cell Phones, and Other Common Items

Generally speaking, and provided that you are not traveling to an OFAC-sanctioned country, you may likely take laptops, GPS devices, cell phones, and other common, personal use technological items as long as:

•               The device, including any software installed on it, does not contain encryption technology (be aware that encryption is becoming more and more common on certain devices and software programs);

•                You own the device or are using an F&M-owned device;

•                You will return to the U.S. with the device within one year;

•               The device is for personal use or is a type of device that is usual and reasonably used within your profession;

•               You will maintain control over the item at all times (e.g., by keeping in your possession or locking in a hotel safe);

•               The device, its software, and underlying technology will not be put to military use, used in outer space, or used to develop weapons of mass destruction.

If any of the above conditions do not apply to you, or if you have any questions, contact the Finance Office for an individual assessment of your travel situation.

6      Research Contracts

Most research conducted at F&M will fall within an exception to the export control laws.  Generally speaking, if the resulting research is published and generally accessible to the public (or shared broadly within the scientific community), the research is likely exempt from export control laws.  However, be aware that these exceptions are lost if you accept certain contractual terms concerning:

•                Foreign nationals;

•                Publication restrictions or pre-publication review; or

•                Access or dissemination controls.

Thus, it is imperative that you carefully review any contract - including a grant - you might sign in connection with your research.  If you see terms addressing any of the above issues, you are advised to contact the Associate Dean of the Faculty.

In the context of research, the roles of each individual/office listed below are as follows:

1.              Faculty Member

                 a.              Identify potential applicability of export control laws to the research/project; if it is determined that export control laws might be applicable:

                                   i.                Contact the Associate Dean of the Faculty;

                                   ii.             Understand that acquiring any necessary license from the government may take up to six (6) months, and, even with a license, exporting will not be feasible in some instances;

                                   iii.            Identify the names, country of origin, and country of citizenship of anyone who will be involved in the research/project;

                                   iv.            See that access to and distribution of technologies and information related to the project are restricted to those persons and destinations that are not export controlled; and

                                   v.              Report any suspected violations of export control laws to the department chair, the Provost, and the Associate Dean of the Faculty

2.              Department Chair and Dean

                  a.              Read any contract - including a grant - carefully with an eye for references to:

                                    i.                Export control laws;

                                    ii.              Foreign nationals;

                                    iii.             Publication restrictions or pre-publication review; or

                                    iv.             Access or dissemination controls.

                  b.              Inform the PI that s/he must contact the Associate Dean of the Faculty; and

                  c.              Do not sign any contract until any applicable export control issues have been addressed by the Associate Dean of the Faculty.

3.              "Empowered Official" – Associate Dean of the Faculty

                   a.              See that College faculty and staff are aware of and comply with export control laws;

                   b.              Make the ultimate determination as to whether to abandon a contract/grant that, despite attempts at negotiation, includes provisions that create problems for the College under export control laws;

                   c.              Make the ultimate determination as to whether to apply for a license or abandon the project due to the burden of export controls;

                   d.              Investigate reported violations of export control laws; and

                   e.              Report violations of export control laws to appropriate federal agencies.

4.              Sponsored Research

                   a.              Remind faculty - specifically those whose research involves science or technology - of the potential applicability of export control laws and encourage them to submit any grant applications, etc. with enough lead time for any necessary contract negotiations and/or license acquisition;

                   b.              Review each contract/grant for potential applicability of export control laws; and

                   c.              Contact the Associate Dean of the Faculty if it appears that export control laws might apply.

5.              Associate Dean of the Faculty

                  a.              Negotiate with research sponsors or other third parties when contracts/grants include provisions that are problematic under export control laws;

                  b.              Apply for appropriate licenses; and

                  c.               Engage with the College’s General Counsel to insure compliance.

7      Website address for this policy

http://www.fandm.edu/college-policies/academic/export-controls-policy

8      Related information

  • U.S. State Department overview of Export Control System

http://www.state.gov/strategictrade/overview/

  • Amherst College Video on Export Controls

ttps://www.amherst.edu/offices/FCR/amherst_procedures/policies_procedures/export_controls

9      Who approved this policy

A signed copy of this Policy is located in the Associate Dean of Faculty’s Office.

Daniel R. Porterfield, President

Joel W. Martin, Provost and Dean of the Faculty

Alan S. Caniglia, Vice President for Planning and Vice Provost

Pierce E. Buller, General Counsel

Endorsed by the Senior Officers of the College, October 5, 2015

10     Origination/revision dates

Origination Date:              June 25, 2015

Last Amended Date:       July 9, 2015

Last Review Date:           September 5, 2018

Responsible College Official:  Associate Dean of the Faculty

Responsible Office:       Office of the Provost