Federal laws, Regulations, and Penalties

Three U.S. Government agencies have primary export control regulatory responsibilities: the Department of Commerce through the Export Control Reform Act and the Export Administration Regulations (EAR), the State Department through the Arms Export Control Act (AECA) and the International Traffic in Arms Regulations (ITAR), and the Department of Treasury through the Office of Foreign Assets Control (OFAC). While these are the three primary export control/trade sanctions entities, there are other U.S. government departments which also administer their own set of export controls (e.g., the Department of Energy).

The U.S. Government controls exports on a case-by-case basis, examining four factors: (1) the commodity, good, software, technology, or service (item); (2) the destination; (3) the end-user; and (4) the end-use. Transfer, disclosure, or release of controlled-items, to controlled destinations, for restricted-end-users, or for restricted end-uses may require prior US government permission (license).

EAR and ITAR apply to the transfer of commodities, information, and the provision of specific services to persons and entities outside the U.S. (exports), and to the disclosure or release of specific information and the provision of specific types of services to foreign nationals even inside the U.S. (deemed exports).

OFAC regulations broadly restrict transactions with embargoed and sanctioned countries, persons and organizations for national and economic security. Even when exclusions to the EAR or ITAR apply, OFAC may prohibit payment, travel, and the transfer of items, assets, and services of value to sanctioned nations (check the OFAC website for the latest trade and sanctions information).

Most exports do not require government licenses. Barring a prohibited end use or user, only certain commodities, software, and technologies require license for export. An export license is usually required for one of the following reasons:

• The export has actual or potential military applications or economic protection issues.
• Government concerns about the destination country, organization, or individual
• Government concerns about the declared or suspected end use or the end user of the export

Even if an item or technology appears on a list of controlled items, there may be exemptions, exclusions. or exceptions that apply, such as the EAR exclusion for “fundamental research” (which applies only to technology and software – it does not apply to the export of physical items). According to the EAR, fundamental research” is "technology” or “software” that arises during, or results from, basic and applied research in science, math & engineering which is intended to be published and is not subject to any personnel or participation restrictions. See EAR 734.8; but see ITAR 120.33 public domain exclusion.

The Departments of Commerce, State, and Treasury publish various lists of parties with various export control and trade sanction restrictions and prohibitions. The lists are notice to the public not to engage in any proscribed transaction(s) with listed entities. The campus uses restricted party screening software to conduct screening and due diligence on third-parties (e.g., suppliers, research sponsors, and international visitors, and collaborators).

Other Federal Laws

In addition to export control laws, select agents and toxins are also regulated by the Centers for Disease Control and Prevention and the Department of Agriculture. However, these materials are not exclusively regulated by the CDC and USDA. Release of these materials often requires an export license even where transfer exceptions may be available under select agents and toxins regulations.

Other activities are exclusively regulated by other laws and agencies. Examples include the Nuclear Regulatory Commission, the Department of Energy, the Food and Drug Administration, and the Drug Enforcement Administration, and those laws and regulations must be consulted and complied with.

There are other U.S. laws and regulations that may impact international activities, travel, and research. The Foreign Corrupt Practices Act (FCPA) is the primary U.S. anti-bribery law, and it prohibits, directly or through an agent or intermediary, the giving, offering, or promising anything of value to a foreign government official to obtain or retain business, to secure an improper business advantage, or to influence them to misuse their authority. In addition, UMass Amherst intends to compete fairly and honestly, not through unethical or illegal business practices, complying with antitrust laws, to promote exchange, trade and competition. UMass Amherst will not participate in any boycott that is contrary to U.S, laws and national security. Any suspected violations of, or solicitations to violate, any corruption or anti-trust laws should be immediately reported to the UMass Amherst Office of Research Integrity (ORI).

Penalties

There are severe civil and criminal penalties, including fines and imprisonment, for violating the export control laws and trade sanctions, and both the organization and the individuals involved are subject to these penalties. The University and the individual(s) involved may also lose their ability to export, and/or be suspended or debarred from government contracting. The criminal and civil penalties for unlawful export and disclosure of information in violation of U.S. export control laws and trade sanctions include the following, depending on the items involved and the jurisdiction:

EAR: Criminal violations by the university can incur penalties up to $1 million for each willful violation. For individuals, these penalties can reach $1 million and/or 20 years imprisonment per violation. Civil penalties for both the university and individuals can exceed $300,000 per violation, or two times the value of the export, whichever is greater. These violations can also result in a denial of export privileges as well as other potential collateral penalties.

ITAR: Criminal penalties can reach up to $1 million per violation and 20 years imprisonment for individual willful violations. Civil penalties can exceed $1,000,000 per violation. A person or university found to be in violation of the ITAR (under the Arms Export Control Act) can be debarred from contracting with the government and could lose their export privileges.

OFAC: Penalties will range depending upon the sanction regime in question. Criminal violations can reach up to $10 million per violation, and imprisonment of up to 30 years. Civil penalties can be imposed in excess of $1,500,000 per violation, or two times the transaction in question, whichever is greater.