Export Control FAQ
An export occurs whenever any item (commodity, software, technology, or equipment) or information is sent from the U.S. to a foreign destination or provided to a foreign national in the U.S. or abroad. The manner in which the transfer or release of the item or information occurs does not matter.
A deemed export refers to the release, transfer or transmission of information or technology to any foreign national in the U.S. A deemed export is treated as an export to that person's country of citizenship.
Export controls refer to the federal regulations governing the export of materials, data, technical information, services, and financial transactions to foreign countries based on U.S. security interests.
A foreign national is defined as any natural person who is not a U.S. citizen, is not a lawful permanent resident of the U.S. (i.e., does not have a green card), or who does not have refugee or asylum status.
A dual-use item is any item that can potentially have a military application as well as a commercial or civilian purpose (e.g., GPS units).
An Export Control Classification Number (ECCN) is an alpha-numeric code used to categorize items that are subject to the EAR into one of the ten categories and five product groups within the Commerce Control List (CCL).
EAR99 is the general "catch-all" classification number assigned to any item that is subject to the EAR but that does not have a specific Export Control Classification Number (ECCN) listed in the Commerce Control List (CCL). The vast majority of U.S. origin goods are classified as EAR99, and under most circumstances, do not require a license for export.
The International Traffic in Arms Regulations govern all military, weapons, and space related items and services as enumerated on the U.S. Munitions List (USML). The ITAR is administered by the Directorate of Defense Trade Controls (DDTC) under the U.S. Department of State.
The Office of Foreign Assets Control is responsible for enforcing the foreign policy of the U.S. government, including all trade sanctions, embargoes, and financial interactions with prohibited or blocked individuals or entities. The OFAC is administered by the U.S. Department of the Treasury.
Export controls apply to grants or contracts that involve technology listed in either the Commerce Control List (EAR) or the U.S. Munitions List (ITAR) and:
鈥� The research does not qualify for an exclusion; or
鈥� A physical item will be exported; or
鈥� There is foreign travel: (1) with equipment, (2) to a sanctioned country, or (3) with controlled information that will be disseminated (e.g., speaking at a conference); or
鈥� There are specific controls required in order to protect information resulting from the research. Such controls may include access, publication, or participation restrictions; or
鈥� Defense articles or associated technical data to be developed or used in the research.
鈥� The research does not qualify for an exclusion; or
鈥� A physical item will be exported; or
鈥� There is foreign travel: (1) with equipment, (2) to a sanctioned country, or (3) with controlled information that will be disseminated (e.g., speaking at a conference); or
鈥� There are specific controls required in order to protect information resulting from the research. Such controls may include access, publication, or participation restrictions; or
鈥� Defense articles or associated technical data to be developed or used in the research.
There are three exclusions that may remove 麻豆女郎 research from the application of export control restrictions. These exclusions include; (1) the Fundamental Research Exclusion (FRE); (2) the Publicly Available/Public Domain Exclusion; and, (3) the Educational Information Exclusion.
Basic and applied research in science and engineering performed by institutions of higher education in the U.S. is not subject to export control laws and regulations as long as the research is carried out openly and without restrictions on publication or access to, or dissemination of, the research results. Fundamental research is distinguished from proprietary research and from industrial development, design, production and product utilization because the results of the latter are restricted for proprietary or national security reasons. The EAR and the ITAR differ on what is considered published information. The EAR requires that the information "has been", "is about to be", or "is ordinarily published". The ITAR requires that the information has already been published in order to qualify for the Fundamental Research Exclusion.
The sharing of technical data or information with a foreign national inside the U.S. as a part of a class, laboratory, or conference and/or seminar, is not subject to export control laws and regulations as long as if the same technical data or information has already been widely published or is accessible or available to the public without restriction.
Information that is commonly taught in catalog-courses at an accredited U.S. institution of higher-education, or its related teaching laboratories, is not subject to export control laws and regulations. The Educational Information Exclusion does not apply to proprietary information and certain information deemed classified or sensitive by the federal government.
It is not considered 鈥渇undamental research鈥� when there are restrictions placed on the research results or restrictions on the methods used during the research. Proprietary research, industrial development, design, production, and product utilization the results of which are restricted, and government funded research that specifically restricts the results for national security reasons are not considered fundamental research.
Not necessarily. While research results developed or generated under the Fundamental Research Exclusion are exempt from export controls and can be freely shared with foreign nationals both here and abroad, any materials, items, technology or software generated as a result of the research are not exempt from export controls. Before shipping or taking any item abroad, an export control determination needs to be made to ascertain if an export license is required to take or transfer the item.
In most cases, low-end items that are commercially available do not require export licenses. There are exceptions to this including items containing strong encryption technology or software (e.g., laptop computers, web-enabled cell phones), items that have dual-use applications (e.g., high-end GPS units), or that are restricted under other regulations or sanctions.
An export license is a written authorization provided by the federal government granting permission for the release or transfer of export-controlled information or item under a defined set of conditions
If it is determined that the activity requires an export license, contact the Export Control Officer. The Export Control Officer will work with you and the Office of the General Counsel to submit a license request to the appropriate regulatory body on your behalf.
NOTE: Obtaining an export license can take 3-6 months and there is no guarantee that a license will be granted.
NOTE: Obtaining an export license can take 3-6 months and there is no guarantee that a license will be granted.
The Export Administration Regulations recognizes an individual's most recent country of citizenship or permanent residency as their home country for licensing requirements.
If you cannot determine the status of a foreign national, you should seek an advisory opinion from the Bureau of Industry and Security (BIS)
Not necessarily. Keep in mind that the deemed export rule does not regulate the operation of controlled equipment. Rather, it is a release to a foreign national of export-controlled "use technology" that may have deemed export licensing implications, and "use technology" includes all of the attributes of "use" as defined in 15 CFR 772 (i.e., operation, installation, maintenance, repair, refurbishing, and overhaul). If the foreign national has access only to the technology that is necessary to operate such equipment, a release of "use technology" has not occurred and no deemed export license requirement is triggered.
Releases of EAR99 technology to certain persons described in 15 CFR 744 of the EAR requires an export license. Under the EAR, releases of EAR99 technology to Cuban nationals requires an export license.
You do not need an export control license for the mere presence of a foreign graduate student in your laboratory. You do need a license if you plan to transfer controlled technology and technical data to the foreign national if the export of that technology and its technical data is restricted from export to the foreign national's home country.
The EAR license requirements apply to the transfer of controlled technology for "development," "production," or "use" of certain equipment.
If the graduate student is receiving technology that has already been published, then that technology is not subject to the EAR and no license is required for the release of that technology.
The EAR license requirements apply to the transfer of controlled technology for "development," "production," or "use" of certain equipment.
If the graduate student is receiving technology that has already been published, then that technology is not subject to the EAR and no license is required for the release of that technology.
The export regulations define an export as:
o Any oral, written, electronic or visual disclosure, shipment, transfer or transmission outside the United States to anyone, including a U.S. citizen, of any commodity, technology (information, technical data, or assistance) or software codes;
o any oral, written, electronic or visual disclosure, transfer or transmission to any person or entity of a controlled commodity, technology or software/codes with an intent to transfer it to a non-U.S. entity or individual, regardless of location (even to a foreign student or colleague at 麻豆女郎); and
o any transfer of the items or information above to a foreign embassy or affiliate.
o It is important to note that only exports for which the U.S. government requires a license are those that are listed on the export-controlled lists. The vast majority of exports do not require the prior approval of the U.S. government.
o Any oral, written, electronic or visual disclosure, shipment, transfer or transmission outside the United States to anyone, including a U.S. citizen, of any commodity, technology (information, technical data, or assistance) or software codes;
o any oral, written, electronic or visual disclosure, transfer or transmission to any person or entity of a controlled commodity, technology or software/codes with an intent to transfer it to a non-U.S. entity or individual, regardless of location (even to a foreign student or colleague at 麻豆女郎); and
o any transfer of the items or information above to a foreign embassy or affiliate.
o It is important to note that only exports for which the U.S. government requires a license are those that are listed on the export-controlled lists. The vast majority of exports do not require the prior approval of the U.S. government.
An export of technology or source code is 鈥渄eemed鈥� to take place when it is released to a foreign national within the U.S. Release of the technology can occur through conversation, training, in writing and includes plans and blueprints. When an item is 鈥渃ontrolled鈥�, a license (the appropriate documentation and permission from the cognizant agency) may be required before the technology can be exported.
There are three government agencies that control exports:
o ITAR 鈥� International Traffic in Arms Regulations of the United States Department of State which controls the export of 鈥渄efense articles and defense services.鈥�
o EAR 鈥� Export Administration Regulations of the United States Department of Commerce.
o OFAC 鈥� Office of Foreign Assets Control of the United States Department of Treasury administers and enforces economic and trade sanctions based on U.S. foreign policy and national security goals against targeted foreign countries, terrorists, and those engaged in activities related to the proliferation of weapons of mass destruction.
o ITAR 鈥� International Traffic in Arms Regulations of the United States Department of State which controls the export of 鈥渄efense articles and defense services.鈥�
o EAR 鈥� Export Administration Regulations of the United States Department of Commerce.
o OFAC 鈥� Office of Foreign Assets Control of the United States Department of Treasury administers and enforces economic and trade sanctions based on U.S. foreign policy and national security goals against targeted foreign countries, terrorists, and those engaged in activities related to the proliferation of weapons of mass destruction.
Yes. Export control laws do not have an impact on all university research because of the existence of several important exclusions or exemptions:
o Information that is readily available and accessible to the public is not subject to export control laws. The terms 鈥減ublicly available鈥� and 鈥減ublic domain鈥� are used by EAR and ITAR respectively;
o For academic or research institutions, there is a qualified exclusion for fundamental research, defined as basic and applied research in science and engineering, the results of which ordinarily are published and shared broadly within the scientific community; and
o Education information is another category of publicly available information that is exempt from export control laws. This includes the disclosure of general engineering, scientific and mathematical information that is commonly taught in institutions of higher education.
Clearly, much of the research done at 麻豆女郎 falls under one of these exemptions, and the university can and should assert them.
o Information that is readily available and accessible to the public is not subject to export control laws. The terms 鈥減ublicly available鈥� and 鈥減ublic domain鈥� are used by EAR and ITAR respectively;
o For academic or research institutions, there is a qualified exclusion for fundamental research, defined as basic and applied research in science and engineering, the results of which ordinarily are published and shared broadly within the scientific community; and
o Education information is another category of publicly available information that is exempt from export control laws. This includes the disclosure of general engineering, scientific and mathematical information that is commonly taught in institutions of higher education.
Clearly, much of the research done at 麻豆女郎 falls under one of these exemptions, and the university can and should assert them.
Fundamental research, as used in the export control regulations, includes basic or applied research in science and/or engineering at an accredited institution of higher education in the U.S. where the resulting information is ordinarily published and shared broadly in the scientific community or where the resulting information has been or is about to be published.
No. University research will not be deemed to qualify as fundamental research if:
The university or research institution accepts any restrictions on the publication of information resulting from the research, other than limited prepublication reviews by research sponsors to prevent inadvertently divulging proprietary information provided to the researcher by the sponsor; or
The research is federally funded and specific access or dissemination controls regarding the resulting information have been accepted by the university or the researcher.
No. University research will not be deemed to qualify as fundamental research if:
The university or research institution accepts any restrictions on the publication of information resulting from the research, other than limited prepublication reviews by research sponsors to prevent inadvertently divulging proprietary information provided to the researcher by the sponsor; or
The research is federally funded and specific access or dissemination controls regarding the resulting information have been accepted by the university or the researcher.
No. University research will not be deemed to qualify as fundamental research if:
鈥淓xport鈥� is defined not only as a physical transfer/disclosure of an item outside of the U.S., but also as a transfer/disclosure in any form of a controlled item or information within the U.S. to anyone who is a 鈥渇oreign national鈥� (not a U.S. citizen or permanent resident). This is the 鈥渄eemed export鈥� rule.
In addition to affecting who may participate in the research project on campus, the following are examples of situations in which a license may be required:
o Presentation/discussion of previously unpublished research at conferences and meetings where foreign national scholars may be in attendance;
o Research collaborations with foreign nationals and technical exchange programs;
o Transfers of research equipment abroad; and
o Visits to your lab by foreign students and/or scholars
In addition to affecting who may participate in the research project on campus, the following are examples of situations in which a license may be required:
o Presentation/discussion of previously unpublished research at conferences and meetings where foreign national scholars may be in attendance;
o Research collaborations with foreign nationals and technical exchange programs;
o Transfers of research equipment abroad; and
o Visits to your lab by foreign students and/or scholars
Generally, any research activity may be subject to export controls if it involves the actual export or 鈥渄eemed鈥� export of any goods, technology or related technical data that is either (1) 鈥渄ual use鈥� (commercial in nature with possible military application or (2) inherently military in nature. Work in the following areas is considered high risk:
o Engineering
o Space sciences
o Computer science
o Biomedical research with lasers
o Research with encrypted software
o Research with controlled chemicals, biological agents and toxins
Furthermore, any of the following will raise export control questions for your project or research:
o Sponsor restrictions on the participation of foreign nationals in the research;
o Sponsor restrictions on the publication or disclosure of the research results;
o Indications from the sponsor or others that export controlled information or technology will be furnished for use in the research; and
o The physical export of controlled goods or technology is expected
o Engineering
o Space sciences
o Computer science
o Biomedical research with lasers
o Research with encrypted software
o Research with controlled chemicals, biological agents and toxins
Furthermore, any of the following will raise export control questions for your project or research:
o Sponsor restrictions on the participation of foreign nationals in the research;
o Sponsor restrictions on the publication or disclosure of the research results;
o Indications from the sponsor or others that export controlled information or technology will be furnished for use in the research; and
o The physical export of controlled goods or technology is expected
The EAR and ITAR approach the issue of publication differently. The EAR requirement is that the information has been or is about to be published. The ITAR requirement is that the information has been published. Information becomes 鈥減ublished鈥� or considered 鈥渙rdinarily published鈥� when it is generally accessible to the interested parties in a variety of ways. This includes, for example, in periodicals, books, print, electronic or any other media available for general distribution to any member of the public or to those who would be interested in the material in a scientific or engineering discipline. Published or ordinarily published materials also include the following: readily available at libraries open to the public; issued patents; and, releases at an open conference, meeting, seminar, trade show or other open gathering. A conference is considered 鈥渙pen鈥� if all technically qualified members of the public are eligible to attend and attendees are permitted to take notes or otherwise make a personal record of the proceedings and presentations.
Public domain is the term used for 鈥渋nformation that is published and generally accessible or available to the public鈥� through a variety of mechanisms. Publicly available software or technology is that which already is, or will be published. To fall under this exclusion, there are a number of conditions that demonstrate public availability which are enumerated in the EAR.
The Division of Research has licensed the rights to access and utilize e-Customs鈥攁 full export and import management system and database for export control compliance. For more information or to access this database, please contact the Division of Research. Someone will assist you in determining if your research contract or grant falls under the terms of any of the export compliance regulations, and if necessary, will work with legal counsel and the sponsor to negotiate the removal or modification of the provisions in the contract or grant that impact 麻豆女郎's exemption from export control regulation.
Individuals who violate export regulations are subject to civil and criminal sanctions (including fines and/or prison sentences for individuals) and universities and research institutions are subject to administrative sanctions (monetary fines and loss of research funding and export privileges). The International Emergency Economic Powers Enhancement Act of 2007 has provisions which increase civil penalties for violations of the EAR from $50,000 per violation to the greater of $250,000 or twice the amount of the transaction. The new law also increases criminal penalties for individuals from $50,000 and 10 years imprisonment to $1 million and 20 years imprisonment.
麻豆女郎 researchers and contract administrators have primary responsibility to identify which projects may prompt EAR and ITAR restrictions. The Division of Research will work with you to ensure compliance with export control regulations. If it is determined that an export control license is required, the Division of Research will work with legal counsel to proceed with the application process.
It is important to mention that an export license is not guaranteed and may require expenditure of time and financial resources. Furthermore, seeking a license from the relevant federal department or even requesting commodity jurisdiction and/or an advisory opinion can take as long as six months after the initial contact with Washington.
It is important to mention that an export license is not guaranteed and may require expenditure of time and financial resources. Furthermore, seeking a license from the relevant federal department or even requesting commodity jurisdiction and/or an advisory opinion can take as long as six months after the initial contact with Washington.