Export Control Frequently Asked Questions (FAQ's)
- What are export controls?
- What kinds of projects raise export control questions?
- Examples of activities that could trigger export controls
- What is an export?
- What is a “deemed” export subject to export controls?
- What is considered a “foreign” entity for purposes of export controls?
- What happens if we violate the export control laws?
- Are there any exclusions from or exceptions to the export control requirements?
- How can we lose the “fundamental research” exclusion?
- How do I know if export controls apply to a research project?
- Does a sponsoring agency have the authority to waive export control requirements?
- What if I’m not involved in sponsored research? Do export controls apply to me?
- How Do I Ship a Controlled Item or Commodity Out of the United States?
- Can I travel with my laptop?
- May a foreign national use the equipment in my lab if the “fundamental research” exclusion applies to my research?
- What do I need to keep in mind if I travel abroad?
- What is a Technology Control Plan (TCP)?
- What do I need to do?
U.S. laws that restrict the transfer of militarily useful goods, technology, services, and information, including equipment and technology used in research, for reasons of foreign policy and national security. Certain export transactions require a license or other written approval from the U.S. government prior to export. Some transactions are prohibited due to the end-use, end-user, or country involved.
Federal export controls are accomplished primarily through:
(1) The International Traffic in Arms Regulations (ITAR) implemented by the Department of State, Directorate of Defense Trade Controls, for inherently military items applications listed on the U.S. Munitions List (USML): http://www.pdtc.state.gov/regulations_laws/itar_consolidated.html.
(2) The Export Administration Regulations (EAR) administered by the Department of Commerce, Bureau of Industry and Security, for “dual use” of items that have both a commercial and potential military use listed on the Commerce Control List (CCL): http://www.access.gpo.gov/bis/ear/ear_data.html#ccl
(3) Regulations of the Treasury Department, Office of Foreign Assets Control (OFAC) Transactions with countries subject to boycotts, trade sanctions and embargoes and with individuals identified on the Specially Designated Nationals and Blocked Persons List (SDN): http://www.treas.gov/offices/enforcement/ofac/
Any activity regardless of funding type may be subject to export controls if it involves the actual export or “deemed” export of any item that is either “dual use” (commercial in nature with possible military application) or inherently military.
Export controls are frequently, but not exclusively, associated with items, information or software within the following general areas:
- Chemical, Biotechnology and Biomedical Engineering
- Materials Technology
- Remote Sensing, Imaging and Reconnaissance
- Navigation, Avionics and Flight Control
- Propulsion System and Unmanned Air Vehicle Subsystems
- Nuclear Technology
- Sensors and Sensor Technology
- Advanced Computer/Microelectronic Technology
- Information Security/Encryption
- Laser and Directed Energy Systems
- Rocket Systems
- Marine Technology
- A physical transfer/disclosure of an item outside the U.S.
- Sponsor restrictions on the publication or disclosure of the research results
- Indications from the sponsor or others that export-controlled items, including information or technology, will be furnished for use in the research
- Any transfer/disclosure of a controlled item or information within the U.S. to a foreign national
- Participation of foreign national faculty, staff, or students in affected research
- Presentation/discussion of previously unpublished research at conferences or meetings where foreign national scholars may be in attendance
- Research collaborations with foreign nationals and technical exchange programs
- Transfers of research equipment abroad
- Visits to your lab by foreign national scholars
- Traveling for any purpose to a U.S.-sanctioned country, as listed by the U.S. Treasury Department’s Office of Foreign Asset Control (OFAC);
- Taking receipt of controlled materials from a third party.
- Donation (or payment of tuition) by someone on prohibited list.
- Student organization humanitarian trip to Darfur.
Any oral, written, electronic, or visual disclosure, shipment, transfer, or transmission of goods, technology, services, or information to:
- Anyone outside the U.S. (including a U.S. citizen physically located in a foreign country)
- A non-U.S. entity or individual regardless of location
- A foreign embassy or affiliate
Disclosure or transfer of export controlled items, including technology and information, to a foreign entity or individual within the U.S. These releases are deemed to be an export to the home country of the foreign national and can occur by such means as:
- Tours of laboratories
- Involvement of foreign researchers or foreign students in the research
- Oral exchanges, emails, or visual inspection
- Hosting a foreign researcher
- Foreign government
- Foreign organization not incorporated or organized to do business in the U.S.
- Individual who is not a U.S. citizen or lawful permanent resident of the U.S. (green card holder)
The consequences for noncompliance are very serious for both the College and the researcher. Penalties may include fines up to $1,000,000 and, for individual researchers, imprisonment up to 10 years. These penalties apply to single violations; multiple violations from the same transaction can easily result in enormous penalties.
Sanctions on both individuals and institutions may also include termination of export privileges,
suspension/debarment from federal government contracting, and loss of federal funding.
Yes, fortunately, most research and teaching on campus in the United States can qualify for exclusions and/or exemptions from the export control regulations. These include:
- Fundamental Research Exclusion – applies to the products, but not the underlying data or documents, of basic and applied research in science and engineering performed by universities as long as the resulting information is ordinarily published and shared broadly within the scientific community.
- Educational Information – information commonly taught for instruction in courses and associated with general scientific, mathematical, or engineering principles
- Publicly Available – information generally accessible to the public, such as information in libraries, bookstores, open seminars, and published patent information. However, the State Department has determined that information contained on internet sites is not necessarily considered to be in the public domain.
- Accept restrictions on publication or release of information
- Allow sponsor approval rights on publications
- Limit access of foreign nationals to research
- Enter into Non-Disclosure Agreements (NDAs) that limit disclosure of information
- PIs accept “side deals” directly with a sponsor
Export controls apply if the topic of the research appears on either the U.S. Munitions List (ITAR) or the Commerce Control List (EAR). There are exclusions and exceptions to the application of the regulations. Furthermore, it depends on both the technologies (i.e., the work scope) and the countries (either foreign destinations or non-US personnel) involved. ITAR applies if the subject of the research appears on the ITAR munitions list. Under ITAR, the country of destination is irrelevant; export of a controlled item to any foreign country or any foreign national would be in violation of the law.
The application of EAR is more complicated. It depends on both the technology involved and the country of destination. For example, you might have a technology that can be exported to Canada but not to Venezuela. In most cases, technologies are very precisely defined, and the definitions affect the applicability of the law. For example, telecommunications equipment involving lasers that transmit at wavelengths above 1750 nm may be controlled, while similar equipment using a smaller wavelength is not controlled.
No. Waivers of export control requirements are provided for in the regulations as either “exemptions” (ITAR) or “exceptions” (EAR), but they must be authorized by either the Department of State (for ITAR) or the Department of Commerce (for EAR). No other federal agency has the authority to waive the export control regulations on behalf of State or Commerce.
The extent to which you need to be concerned about—and informed about—export control regulations (including OFAC regulations) varies greatly, depending on your field, on your involvement with non-US students, post-docs and collaborators, and on your foreign travel. Even if an institution performs minimal research, or if the only research taking place is in non-science or technology disciplines, or if the institution has relatively few foreign visitors or students on campus, some of these laws and regulations may apply simply because, among other things, institutional personnel use advanced electronics or certain chemical or biological materials, travel abroad for their educational duties, or may be involved in financial transactions with certain foreign entities. For example, even professors who have no connection whatsoever to military work need to comply with OFAC regulations if they travel to an OFAC embargoed country—either to teach or to conduct research—or if you host researchers from OFAC embargoed countries, or if you have collaborators in OFAC embargoed countries, you need to understand how OFAC regulations may affect your work.
The transfer of commodities and equipment is only controlled by the export regulations when the item is shipped out of the country. Licenses to ship an item outside the United States are required even when the item or equipment is used in or results from fundamental research unless a valid license exception (EAR) or license exemption (ITAR) applies.
If a commodity is controlled under the ITAR, then a license is almost always required before it can be shipped to any country outside the United States. Licenses are also required to import some items subject to the ITAR. This applies to both temporary or permanent exports or ITAR articles.
For commodities controlled under EAR, whether a license is required depends upon the item and the country to which the item is being shipped. Even in cases where license approval from the Department of Commerce is not required to ship the item to the country, there are administrative requirements and records that must be maintained (see 15 CFR Part 762) regarding shipments of EAR controlled items out of the United States.
Under the Temporary Export Exemption, individuals traveling with technology or data that is routinely available from a commercial vendor will probably not require an export license as long as:
- The item will be returned to the U.S. within one year of its export date; and
- The item is a usual and reasonable type of tool of the trade for use in lawful research or education; and
- You retain effective control at all times over the item while abroad by retaining physical possession of the item or securing the item in an environment such as a hotel safe; and
- You accompany the item abroad, or the item is shipped within one month before your departure, or at any time after your departure; and
- The item does not contain encryption software employing a key length greater than 80 bits for the symmetric algorithm; and
- The equipment, software and technology are not of an inherently military nature and will not be put to a military use or be used in outer space; and
- You will not place items in unaccompanied baggage; and
- The items will not be sold or intended for sale
The Temporary Export Exemption does NOT apply, however, if you are traveling to an embargoed country (Balkans, Burma, Ivory Coast, Cuba, Democratic Republic of the Congo, Iran, Iraq, Liberia, Libya, North Korea, Sudan, Syria, and Zimbabwe). If you are traveling to one of these countries, you may need to apply for an export license before taking your laptop outside of U.S. borders.
May a foreign national use the equipment in my lab if the “fundamental research” exclusion applies to my research?
Not necessarily. The transfer of controlled technology or source code of a controlled item may require a license even if the normal operation of the equipment does not.
Taking equipment, such as laptops, abroad may require a license for controlled technology loaded on the computer. Financial transactions and information exchanges may be restricted.
A project-specific plan establishes procedures to secure controlled items, including technology and information, from use and observation by unlicensed non-U.S. citizens.
You need to educate yourself about export controls and have a fundamental understanding of the subject to be able to know when to raise questions and alert the College to a possible export controls issue.
Helpful Questions to Consider:
- What is the nationality of researchers INCLUDING professors and research assistants (grad students/post-docs)?
- Will the results be publicly available?
- Will there be restrictions on publications, access, dissemination or proprietary information?
- Will I be receiving any restricted information?
- Is the research going overseas to a foreign company, government or individual?
- What do the end-users intend to do with the research results?
Determining whether an export is subject to a licensing requirement is a complicated process that necessarily involves a full understanding of the item. Whether something is controlled for export is not intuitive. License requirements are dependent upon an item’s technical characteristics, the destination, the end use, and the end user. We will work with you to make this determination.