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Export Controls

The  purpose of export controls is to restrict the dissemination of technology,  goods, and information to foreign nationals, countries, banned entities, and  sanctioned companies. Exporting information without taking the necessary  precautions poses a serious security risk to the U.S. and could result in strict  criminal and civil penalties.

Export  controls are currently regulated by the U.S. Department of State through its  Export Administration Regulations (EAR), U.S. Department of Commerce through  its International Traffic in Arms Regulations (ITAR), and the U.S. Department  of Treasury through its Office of Foreign Assets Control (OFAC).

This site  is intended to provide information for faculty and students who may be  traveling to foreign countries, working with foreign nationals on research  projects, or transmitting equipment or information to foreign nationals.  Importantly, information does not have to be transmitted outside the U.S. to violate export regulations. Exports of information that take place inside  the U.S.  are known as "deemed exports" because the information may be  indirectly passed through a foreign national to a foreign country.

Consult  the navigation menu to learn more about the specific entities involved and how  to be sure that you are taking the necessary precautions to avoid export  violations.

Importantly,  the EAR, ITAR, and OFAC regulations are not intended to restrict all academic  activities. Therefore, there are specific exceptions and exemptions  (fundamental research, public domain, laptop, teaching, and bona fide employee)  that may apply to the dissemination of information in some university  instructional, research and service settings. Navigate the menu for more  information on each of these exceptions.

Regulations

Export  controls are currently regulated by the U.S. Department of State through its  Export Administration Regulations (EAR), U.S. Department of Commerce through  its International Traffic in Arms Regulations (ITAR), and the U.S. Department  of Treasury through its Office of Foreign Assets Control (OFAC).

Although  there are some similarities between the scope of the EAR and ITAR at the  university level, the regulations differ in their primary focus. Specifically,  the EAR is mostly concerned with dual-use items (those which are not inherently  military in nature), and the ITAR is concerned with items listed on the United  States Munitions List (USML) and the distribution of related information. OFAC,  however, administers and enforces sanctions on targeted countries and  individuals.

Export Administration Regulations

  The U.S.  Department of Commerce implements the Export Administration Regulations (EAR)  primarily for trade protection. The EAR differs from the ITAR because it  focuses on dual use items. "Dual use" is used to distinguish  EAR-controlled items that can be used in both military and commercial applications  (EAR 730.3). Items  regulated by the EAR are listed on the Commerce Control List (CCL). The EAR  covers the transport of these items and dissemination of technical data about  them to foreign nationals inside and outside of the U.S.

"Technical  data" is defined in Part  772 of the EAR as "blueprints, plans, diagrams, models, formulae,  tables, engineering designs and specifications, manuals and instructions  written or recorded on other media or devices such as disk, tape, read-only  memories." Part 734.2 of  the EAR furthers this definition to include "oral exchanges of information  in the United States  or abroad."

If an  export does not appear on the CCL or falls under one of the exceptions, it does  not require an export license.

The CCL is  divided into ten categories (see EAR Part 774):
        0-Nuclear  Materials, Facilities and Equipment, and Miscellaneous
        1-Materials, Chemicals, Microorganisms, and Toxins
        2-Materials Processing
        3-Electronics
        4-Computers
        5-Telecommunications and Information Security
        6-Lasers and Sensors
        7-Navigation and Avionics
        8-Marine
        9-Propulsion Systems, Space Vehicles, and Related Equipment
      Any goods  or technologies that do not fit one of these categories are placed into a  "catch-all category," EAR 99.

If your research fits into one of these categories and involves foreign nationals,  consult the exceptions and exemptions section. If ineligible for these exceptions,  contact the Grants Office about applying for a Bureau of Industry and Security  (BIS) license before proceeding with your research.

 International Traffic in Arms Regulations

International  Traffic in Arms Regulations (ITAR) are concerned with items that are inherently  military in nature. Commercial (dual-use) items are governed by the Export  Administration Regulations (EAR). Items regulated by the ITAR are listed on the United  States Munitions List (USML).

The  distribution of these items and "technical data" related to them is  strictly prohibited under ITAR. As described in ITAR 120.10 (5),  technical data means information required for the design, development,  production, manufacture, assembly, operation, repair, testing, maintenance, or  modification of controlled articles.

The  furnishing of technical data to a foriegn national is classified as a defense  service. Defense services are the provision of assistance to foreign nationals  anywhere in connection with the design, development, or manufacture of articles  listed on the USML (ITAR 120.9.).

The  twenty-one broad categories of the USML are as follows:
        I.  Firearms, close assault weapons and combat shotguns
        II. Guns and Armament
        III. Ammunition/Ordnance
        IV. Launch vehicles, guided missiles, ballistic missiles, rockets, torpedoes,  bombs, and mines
        V. Explosives and energetic materials, propellants, incendiary agents and their  constituents
        VI. Vessels of war and special naval equipment
        VII. Tanks and military vehicles
        VIII. Aircraft and associated equipment
        IX. Military training equipment and training
        X. Protective personnel equipment and shelters
        XI. Military Electronics
        XII. Fire control, range finder, optical and guidance and control equipment
        XIII. Auxiliary military equipment
        XIV. Toxicological agents, including chemical agents, biological agents and  associated equipment
        XV. Spacecraft systems and associated equipment
        XVI. Nuclear weapons, design and testing related items
        XVII. Classified articles, technical data and defense services not otherwise  enumerated
        XVIII. Directed energy weapons
        XIX. Reserved
        XX. Submersive vehicles, oceanographic and associated equipment
        XXI. Miscellaneous Articles

If your research falls within these categories and you are exporting information or  services, you may need to apply for an export license.

Office of Foreign Assets Control

The Office of Foreign Assets Control (OFAC) of the U.S. Department of the Treasury  administers and enforces sanctions against targeted foreign countries and  terrorists.

University  researchers and students should primarily be concerned with OFAC's current list  of sanctioned countries: Balkans, Belarus, Burma, Cuba, Democratic Republic of the Congo, Iran, Iraq,  Ivory Coast, Liberia, North   Korea, Sudan,  Syria, and Zimbabwe.  Distributing information to these countries without permission from the U.S. government  may result in a federal violation. If you plan on carrying out research while  traveling to these countries, you may need to apply for an export license.

Importantly, the export of some goods (chemical and biological weapons) are regulated when  exported to ANY country. The sanctioned countries are those that carry the  strictest regulations.

The list of sanctioned countries is constantly being changed and updated. Monitor the list as you proceed with your research.

Exceptions and Exemptions

The  regulations administered and enforced by the EAR, ITAR, and OFAC are not  intended to obstruct university research or teachings. For this reason, there  are exceptions and exemptions that allow for the dissemination of information  not thought to pose a risk to national security or foreign policy.

These  exceptions, in general, allow for information that is openly accessible in the  public domain to be distributed through teaching, research, and communication.  Also, all exemptions require that information and research findings be  published openly without restrictions. Any restrictions to access, participation, or dissemination by third parties will negate any exceptions or  exemptions.

Fundamental Research Exemption

Research  conducted in a university setting is subject to the Fundamental Research  Exemption. The ITAR and EAR define the exemption slightly differently. This  page will first discuss the nature of fundamental research under the EAR and  then the ITAR.

Fundamental  research is defined in Part  734.8 of the EAR as "basic and applied research in science and engineering,  where the resulting information is ordinarily published and shared broadly  within the scientific community." Also, fundamental research only applies  to the disclosure of information to foreign nationals inside the United States.  Shipment of goods or services outside the U.S. are not covered by the  Fundamental Research Exemption.

The EAR  identifies several scenarios in which university research would be subject to  the EAR. Since fundamental research must be made public, these distinctions  apply to situations where the publication, details, or results of research are  restricted:

(1) The  initial transfer of information from an industry sponsor to university  researchers is subject to the EAR where the parties have agreed that the  sponsor may withhold from publication some or all of the information so  provided.
      (2)  University based research is not considered "fundamental research" if  the university or its researchers accept other restrictions on publication of  scientific and technical information resulting from the project or activity.  Scientific and technical information resulting from the research will  nonetheless qualify as fundamental research once all such restrictions have  expired or have been removed.

Consult  EAR Part 734.8 for more  information on fundamental research expemptions under the EAR.

Section 120.11 of the ITAR 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, as  distinguished from research the results of which are restricted for proprietary  reasons or specific U.S. Government access and dissemination controls."

Research  that is subject to the ITAR and violates the Fundamental Research Exemption  meets the following restrictions:

(1)  The University or its researchers accept other restrictions on publication of  scientific and technical information resulting from the project or activity, or (2)  The research is funded by the U.S. Government and specific access and  dissemination controls protecting information resulting from the research are  applicable. Consult  section 120.11 of the ITAR for more information on the Fundamental Research  Exclusion.

Public Domain Exemption

Information  that is present in the public domain is free from EAR and ITAR regulations.  Importantly, this exemption only applies to information within the United States.  Shipments outside the U.S.  are subject to export control regulations. The definition and scope of public domain is covered in EAR 734.7 and ITAR  120.11.

EAR 734.7 indicates that the  public domain consists of Information that is "published" in any  form, including:

(1)  Publication in periodicals, books, print, electronic, or any other media  available for general distribution to any member of the public or 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 
(2) Ready  availability at libraries open to the public or at university libraries
(3)  Patents and open (published) patent applications available at any patent  office; and 
(4)  Release at an open conference, meeting, seminar, trade show, or other open  gathering.

Consult EAR 734.7 for a more  comprehensive definition of what types of information are covered by the public  domain exemption.

ITAR  120.11 provides a similar, yet more comprehensive, definition than the EAR: 
Information  in the public domain is available
(1)  Through sales at newsstands and bookstores; 
(2)  Through subscriptions which are available without restriction to any individual  who desires to obtain or purchase the published information; 
(3)  Through second class mailing privileges granted by the U.S. Government; 
(4) At  libraries open to the public or from which the public can obtain documents; 
(5)  Through patents available at any patent office; 
(6)  Through unlimited distribution at a conference, meeting, seminar, trade show or  exhibition, generally accessible to the public, in the United States; 
(7)  Through public release ( i.e. , unlimited distribution) in any form (e.g., not  necessarily in published form) after approval by the cognizant U.S.  government department or agency
(8)  Through fundamental research in science and engineering at accredited  institutions of higher learning in the U.S. where the resulting information is  ordinarily published and shared broadly in the scientific community.

Laptop Exception

Personal  computers, such as laptops, are listed on the Commodities Control List (CCL) of  the EAR. However, a combination of the Temporary Export Exemption and  "tools of the trade" classification make it acceptable, in some  cases, for individuals to travel with a laptop.

Temporary  Export Exemptions allow for commodities and software to be used temporarily  abroad. A commodity is only eligible for temporary export if it is a "tool  of the trade." A 'tool of  the trade" is defined in EAR  Part 740.9 as "Usual and reasonable kinds and quantities of  commodities and software for use in a lawful enterprise or undertaking of the  exporter." These items must remain under the control of the researcher at  all times and be returned to the U.S. within one year of export  date.

The laptop  exception does not apply if you are traveling to an embargoed or T-7 country (Balkans, Burma,  Ivory Coast, Cuba, Democratic   Republic of the Congo, Iran,  Iraq, Liberia, Libya,  North Korea, Sudan, Syria,  and Zimbabwe). Your  laptop must also not be modified for military purposes or use in outer space.

Teaching Exemption

The  disclosure of information to foreign nationals in classroom settings falls  under the teaching exemption of the EAR and ITAR. In Part 734.9 of the EAR, this  exemption is defined as instruction in catalog courses and associated teaching  laboratories of academic institutions.

ITAR Section  120.10 (5) provides a similar definition: information  concerning general scientific, mathematical or engineering principles commonly  taught in schools, colleges and universities or information in the public  domain.

Consult EAR 734.9 and ITAR 120.10 for more information on the teaching exemption.

Bona Fide Employee Exemption

The bona  fide employee exemption of the ITAR allows for the disclosure of unclassified  technical data in the U.S. by U.S. institutions of higher learning to foreign  persons who are their bona fide and full time regular employees (ITAR  125.4 (10)).
        This  exemption is only applicable if:
        (1) The  employee's permanent abode throughout the period of employment is in the United States;
        (2) The  employee is not a national of a country to which exports are prohibited;
      (3) The  institution informs the individual in writing that the technical data may not  be transferred to other foreign persons without the prior written approval of  the Directorate of Defense Trade Controls.

Regulated Entities

Consult  the resources and lists below for information on entities, persons, and  countries banned from export through the ITAR, EAR, and OFAC. The most  significant to university research is the OFAC list of sanctioned countries.  Research involving any entity or country on these lists almost always requires  an export license.

These  lists are only meant to be a resource. The University is required to keep  records of compliance with export controls regulations.
EAR Denied Persons List
EAR List of Entities with License  Requirements
EAR  Unverified Entities
EAR General Order  Restricting Exports Involving Dubai, UAE, and Germany
ITAR Debarred List
ITAR Sanctioned Parties
OFAC List  of Specially Designated Nationals
OFAC  List of Sanctioned Countries

Penalties

Penalties for Violation of EAR

Violating  the EAR may result in civil and criminal penalties. This page is by no means  comprehensive. Consult EAR  Part 764 for additional information on the reporting of sanctions and  specific penalties.
        Civil  Penalties:
        (1) Civil  monetary penalty
        (2) Denial  of export privileges.
        (3)  Exclusion from practice.
        Criminal  Penalties:
        (1) Fine  of not more than five times the value of the exports or reexports involved or  $50,000, whichever is greater, or imprisoned not more than five years, or both.
        (2)  Willful violations. Fine of not more than five times the value of the export or  reexport involved or $1,000,000, whichever is greater; and, in the case of an  individual, shall be fined not more than $250,000, or imprisoned not more than  10 years, or both.
        (ii) Any  person who is issued a license under the EAA or the EAR for the export or  reexport of any items to a controlled country and who, with knowledge that such  export or reexport is being used by such controlled country for military or  intelligence gathering purposes contrary to the conditions under which the  license was issued, willfully fails to report such use to the Secretary of  Defense, except in the case of an individual, shall be fined not more than five  times the value of the exports or reexports involved or $1,000,000, whichever  is greater; and in the case of an individual, shall be fined not more than  $250,000, or imprisoned not more than five years or both (EAR 764.3).

Penalties for Violation of ITAR

Exports  that violate ITAR may carry serious penalties. Violations are outlined in ITAR Part 127 - Violations and Penalties. Part  127.3 focuses specifically on penalties for violations.      Violations  fall under U.S.  code 2778, Control of Arms Import and Export. The law indicates that any  person who willfully violates any provision of this section, or who willfully,  in a registration or license application or required report, makes any untrue  statement of a material fact or omits to state a material fact required to be  stated therein shall upon conviction be fined for each violation not more than  $1,000,000 or imprisoned not more than ten years, or both. Please  consult the documents and sections indicated above to learn more about ITAR  violations. Use the resources on this site to ensure that your research is in  compliance.

Penalties for Violation of OFAC

OFAC  penalties fall under the Trading with the Enemy Act (TWEA). Please consult 50  USCS Sec. 5 for a comprehensive description of criminal and civil charges that  may result from an OFAC violation. Also, make certain that you apply for an  export license if your research involves one of the nations embargoed by the  OFAC (Balkans, Belarus,  Burma, Cuba, Democratic   Republic of the Congo, Iran,  Iraq, Ivory Coast, Liberia,  North Korea, Sudan, Syria,  Zimbabwe).
        In  addition to the forfeiture of any property involved with the violation, any  person not in compliance with OFAC is subject to the following:

         Persons  who willfully violate any provision of TWEA or any license, rule, or regulation  issued thereunder, and persons who willfully violate, neglect, or refuse to  comply with any order of the President issued in compliance with the provisions  of TWEA shall, upon conviction, be fined not more than $1,000,000 or, if an individual,  be fined not more than $100,000 or imprisoned for not more than 10 years, or  both; and an officer, director, or agent of any corporation who knowingly  participates in such violation shall, upon conviction, be fined not more than  $100,000 or imprisoned for not more than 10 years, or both.

Glossary

Actual  Export 
Technology  and information leaving the shores of the United States.
Commerce  Control List (CCL)  
A list of  goods and technology regulated by the Department of Commerce through the Export  Administration Regulations (EAR).  Items on this list are marked for  dual-use, which means that they are commercial goods that could be used for  military purposes. 
Commodity  Jurisdiction Ruling  
A request  that can be made to the State Department to determine whether the Export  Administration Regulations (EAR) or International Traffic in Arms Regulations  (ITAR) have jurisdiction over the export of a good or technology.
Controlled  Physical Items 
Defense  articles listed on the International Traffic in Arms Regulations (ITAR) and  dual use items listed under Export Administration Regulations (EAR). 
Deemed  Export  
An export  of technology or information to a foreign national within the United States.
Defense  Article  
(ITAR  120.6) Any item designated in the U.S. Munitions List. Examples include  specified chemical agents, cameras designated for military purposes, specified  lasers, and GPS equipment.  It also means any technical data recorded or  stored in any physical form, models, mock-ups, or other items that reveal  technical data directly relating to the particular item or “defense article”  listed in the USML.
Defense  Service  
(ITAR  120.9) The furnishing of assistance (including training) to foreign persons,  whether in the United States or abroad in the design, development, engineering,  manufacture, production, assembly, testing, repair, maintenance, modification,  operation, demilitarization, destruction, processing or use of defense  articles; and the dissemination of technical data to any foreign person in the  United States or abroad.
Dual-use  
Items that  are listed on the Commerce Control List (CCL).  These goods and  technologies are commercial in nature but could be used for military purposes.
Export  Administration Regulations (EAR)  
Federal  regulations on dual-use items through the U.S. Department of Commerce.
Export  
(ITAR  120.17) There are multiple definitions under the Export Administration  Regulations (EAR) and the International Traffic in Arms Regulations  (ITAR):  1. Actual shipment of any goods covered by the EAR or ITAR  outside the United States.   2. Release or disclosure of any information covered by the EAR or ITAR to any  foreign person in the United    States or abroad. 3.  The definition of  export under ITAR also includes the performance of any defense service for the  benefit of a foreign national whether in the United States or  abroad.          
EAR  99  
The  “catch-all category” that applies to any good or technology subject to the EAR  that does not fall under one of the ten specific CCL categories.
Foreign  National  
(ITAR  120.16) Any person who is not a lawful permanent resident of the United States.  It also means any foreign corporation, business association, partnership,  trust, society or any other entity or group that is not incorporated or  organized to do business in the United States, as well as international  organizations, foreign governments and any agency or subdivision of foreign  governments (e.g., diplomatic missions).
Fundamental  Research  
According  to the Association for American Universities (AAU), fundamental research is  basic and applied research in science and engineering, the results of which ordinarily  are published and shared broadly within the scientific community, as  distinguished from proprietary research and from industrial development,  design, production, and product utilization, the results of which ordinarily  are restricted for proprietary or national security reasons.
International  Traffic in Arms Regulations (ITAR)  
The State  Department’s regulations for goods or technologies inherently military in  nature. 
Office  of Foreign Assets Control (OFAC)  
 Administers  and enforces economic and trade sanctions based on U.S. foreign policy and national  security goals through the Department of the Treasury. 
Public  Domain  
(ITAR  120.11) Information that is published and that is generally accessible or  available to the public: (1) through sales at newsstands and bookstores; (2)  through subscriptions which are available without restriction to any individual  who desires to obtain or purchase the published information; (3) through second  class mailing privileges granted by the U.S. government; (4) at libraries open  to the public or from which the public can obtain documents; (5) through  patents available at any patent office; (6) through unlimited distribution at a  conference, meeting, seminar, trade show, or exhibition, generally accessible  to the public, in the United States; (7) through public release (i.e.,  unlimited distribution) in any form (e.g., not necessarily in published form)  after approval by the cognizant U.S. government department or agency; and (8)  through fundamental research in science and engineering at accredited  institutions of higher learning in the U.S. where the resulting information is  ordinarily published and shared broadly in the scientific community.
Technical  Data  
(ITAR  120.10) Information required for the design, development, production,  manufacture, assembly, operation, repair, testing, maintenance or modification  of defense articles. This includes information in the form of blueprints,  drawings, photographs, plans, instructions or documentation.  Also,  classified information relating to defense articles and defense services, and  information covered by an invention secrecy order.
United States Munitions List  (USML)  
A list  featuring twenty-one categories of defense articles and services that are  monitored by the International Traffic in Arms Regulations (ITAR).
U.S. Person  
(ITAR  120.15) A person who is a lawful permanent resident of the United States.  It also means  any corporation, business association, partnership, society, trust, or any  other entity, organization or group that is incorporated to do business in the United States.  It also includes any governmental (federal, state or local) entity.