Table Of Contents
EXPORT CONTROL REGULATIONS
Export control regulations apply to:
- the transfer of specified items or information to people or entities outside the U.S.;
- the disclosure of certain information to certain foreign nationals inside the U.S. (aka "deemed export");
- the training or offering of services involving controlled equipment or information to foreign nationals; and
- transactions with, or providing services to, certain foreign countries or individuals who are on embargo lists.
The vast majority of research and teaching activity at The University of Texas at Arlington falls within one or more of the following exemptions to the EAR and ITAR regulations:
- The fundamental research exclusion exempts from coverage basic and applied research in science and engineering performed by institutions of higher learning in the U.S. as long as the research is carried out openly and without restrictions on publication or access to or dissemination of the research results. The fundamental research exclusion does not apply to items on the US Munitions List.
- The education exclusion exempts from export controls the sharing of information commonly taught in colleges and universities (ITAR) or educational information released by instruction in catalog courses and associated teaching laboratories (EAR). Therefore, in general, no license is required to share information as part of a course being taught. Note, however, that the education exclusion does not apply to proprietary information and certain information deemed classified or sensitive by the federal government.
- The public domain exclusion exempts the sharing of technical data or information with a foreign national inside the U.S. as part of a class, laboratory, or conference or seminar, if the same technical data or information has already been widely published or is available in libraries or through newsstands, bookstores, subscriptions or free web sites or is disclosed in published patent applications.
Most items and information a university researcher wants to physically export outside the U.S. will not have a "dual use" or military application and should therefore, fall under a broad exception to the licensing requirement. However, if the item or information involves one or more of the following general categories, check the Export Administration Regulations Database and consult with Jeremy Forsberg, Director, Office of Research Administration for assistance in determining if a license might be necessary:
- nuclear materials, information and equipment;
- chemicals, micoorganisms or biotoxins (see list) which could be used for terrorist purposes;
- materials processing (anti-friction bearings, crucibles made of materials resistant to liquid actinide metals, valve bearings, generators and equipment related to nuclear material handling, piping, fittings and valves, explosives or detonators, chemical vapor deposition furnaces, robots, etc.);
- electronics development (certain components, including microprocessor microcircuits, wave pulse discharge capacitors, wave tube amplifiers, etc.);
- computers (generally, CTPs bigger than 190,000MTOPs), encryption software, telecommunications and information security;
- lasers and sensors (certain marine acoustic systems, mono- or multispectral imaging sensors designed for remote sensing, specified direct view imaging equipment, certain cameras with specified frames, readout and pixels, etc.);
- navigation and avionics; marine items; and
- propulsion systems, space vehicles and related equipment.
Complete information regarding travel to foreign countries can be found by clicking here.
To summarize: no license is generally required to travel to, conduct research in and take equipment to, most foreign countries as part of your teaching and/or research responsibilities. However, OFAC restrictions apply to a limited number of embargoed entities and specially designated nationals. OFAC restrictions limit certain activities in the Balkans, Burma, Cuba, Iran, Iraq, Libya, North Korea, Sudan, Syria, and Zimbabwe. Check for updates to the embargoed entities and the specific limitations for each country at: http://www.ustreas.gov/offices/enforcement/ofac/programs/. In addition, OFAC programs prohibit the provision of services to countries subject to US sanctions, boycotts, etc. without a license. Such services include: conducting surveys or interviews in, or transmitting on-line courses to, a boycotted country.
Excluding countries under sanction, faculty who wish to take their laptops out of the country to use in a project that qualifies as fundamental research may be able to do so under the license exception for temporary export if the laptop meets the requirement for “tools of trade” and faculty retain control of the laptop at all times.
Export Administration Regulations
International Traffic in Arms Regulations (ITAR)
Office of Foreign Assets Control (OFAC)
EXPORT CONTROL OVERVIEW
The United States Federal Export control laws, implemented both by the Department of Commerce through its Export Administration Regulations (EAR) and the Department of State through its International Traffic in Arm Regulations (ITAR),have been in existence since the 1980s.. As such, institutions of higher education and their employees are required to comply with these laws and regulations. Criminal sanctions, including monetary fines and/or prison sentences for individuals can apply for violation of these laws and regulations.
Following the tragic events of September 11, export control regulations have become more prominent and scrutiny concerning the level of compliance with these regulations has heightened. It is important that faculty and other researchers at UT Arlington understand their obligations under these laws and regulations and comply with them.
The laws and regulations cover virtually all fields of science and engineering prohibiting the unlicensed export of certain materials or information for reasons of national security or protection of trade Understanding three basic concepts related to export control is essential:
1. the nature of the technology that is export controlled and how it is recognized
2. the fundamental research exclusion, and
3. what is a “deemed export.”
A few items deserve special emphasis:
1. The vast majority of exports do not require government licenses. Only exports that the U.S. government considers “license controlled” (Supplement No. 1 to part 774 of the EAR Categories 0-9) under the EAR (http://www.access.gpo.gov/bis/ear/ear_data.html.) and/or ITAR (http://pmddtc.state.gov/official_itar_and_amendments.htm) require licenses (note that some controlled exports don’t require a license). Export controlled transfers usually arise for one or more of the following reasons:
- The nature of 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.
2. Even if an item appears on one of the lists of controlled technologies, generally there is an exclusion for “fundamental research.” For research to be considered “fundamental research” there cannot be restrictions on publication of the research or other restrictions on dissemination of the research and related information. Also, in some cases as long as the research or information is made public or intended to be made public it can qualify as “fundamental research.”
3. When an item is controlled, a license may be required before the technology can be exported. This requirement relates not only to tangible items (prototypes or software) but also to the research results themselves. Further, the term “export” can mean not only technology leaving the country of the United States (including transfer to a U.S. citizen abroad whether or not it is pursuant to a research agreement with the U.S. government), but also transmitting the technology to an individual other than a U.S. citizen or permanent resident within the United States. Even a disclosure to a foreign researcher or student in a UT Arlington laboratory is considered a “deemed export.”
4. There are certain countries where it is the policy of the United States generally to deny licenses for the transfer of these items. These countries are currently Afghanistan, Armenia, Azerbaijan, Belarus, Cuba, Iran, Iraq, Libya, North Korea, Sudan, Syria, Tajikistan, and Vietnam.
Clearly most of the research activities in which UT Arlington is involved are excluded from export controls because UT Arlington can assert the fundamental research exclusion. However, when this is not the case (such as when one needs to export a tangible research item, e.a. prototype or software) it is critically important to begin the process of seeking a license from either the Department of Commerce or Department of State (as applicable) early, since it can take six months or more to receive a license after the submission of the license application.
*A special thank you to MIT for the materials used to prepare this document.
Current export law controls both hardware and information concerning a wide range of designated “technologies” in a way that may have a substantial impact on research at UT Arlington. As a general proposition, a “deemed export” (one requiring a license and imposing access restrictions) exists whenever a foreign national on U.S. soil may be exposed to or be able to access in any manner an export-controlled item or information.
From the current federal regulations may flow a cascade of effects adverse not only to research at UT Arlington but also to U.S. universities generally. Although there is a general exception for “fundamental research” under the export control regulations, certain universities have been informed either by manufacturers or by governmental agencies that scientific equipment provided to them or developed by them is subject to export controls.
The following information is provided to assist principal investigators and contract administrators in determining whether the research they are proposing may be subject to export controls. It is intended to promote understanding of and compliance with the regulations by all persons involved in research. If you have questions about how the export regulations apply to specific research, please feel free to contact Jeremy Forsberg, Director, Office of Research Administration.
Regulations promulgated and enforced by the Department of Commerce, Export Administration Regulations (EAR), and the Department of State, International Trafficking in Arms Regulations (ITAR), prohibit, for reasons of national security or protection of trade, the unlicensed export of specific technologies. If UT Arlington research involves such specified technologies, the EAR and/or ITAR may require the University to obtain prior approval from the U. S. Departments of State or Commerce before allowing foreign nationals to participate in the research, partnering with a foreign company and sharing research—verbally or in writing—with persons who are not United States citizens or permanent resident aliens.
The consequences of violating these regulations can be quite severe, ranging from loss of research contracts to monetary penalties to jail time.
UT Arlington is working with the Council on Government Relations (COGR), the Association of American Universities (AAU), and other nationally recognized research universities to exclude all fundamental university research from export regulation. Until such time as those efforts are successful, the University, through the Office of Research Administration, and all faculty and researchers at UT Arlington must conduct a thorough review of research projects and contract provisions to determine whether and, if so, how a particular research project is impacted by export control regulations.
Principal investigators, prior to commencing any research, shall have responsibility:
- To review and cooperate with the Office of Research Administration to determine whether their research is impacted by the controls or requirements contained within export regulations, and
- To re-evaluate in cooperation with the Office of Research Administration that export control determination before changing the scope or adding new staff to the project to determine if such changes alter the initial determination; and
- To make export determinations far enough in advance to obtain an authorization (license) , should one be required.
The University will assist PI's in assessing the application of such regulations, but primary compliance responsibility must rest with the principal investigator of the research.
Export control restrictions have been in place for many years. However, recent events have brought these issues to the forefront once again. All activities at UT Arlington (grant, cooperative agreement, contract, etc.) are subject to the export control regulations whether or not there is an explicit clause within the award document. Also, individuals carry responsibilities with regard to the export of certain materials on the critical technology list. Although most activities UT Arlington is involved in meet the exclusion test as fundamental research, some do not (such as when the activity is, in export language, a “deemed export” such as a training activity). UT Arlington will engage UT System legal counsel when particularly difficult situations arise. The University’s Empowered Official and initial contact for matters relating to export controls is Jeremy Forsberg, Director, Office of Research Administration .
Export Administration Regulations (EAR) Database
International Traffic In Arms Regulations (ITAR)
POTENTIAL CHALLENGES REGARDING EXPORT CONTROL AND FOREIGN TRAVEL FOR FACULTY AND STAFF
Travel to most countries does not usually constitute an export control problem. In most cases, items such as a personal laptop computer and other “tools of the trade” do not require a license except for travel to Cuba and in some cases to the Sudan. However, “tools of the trade” must remain under the “effective control” of the employee if the travel is to certain countries such as North Korea, Iran, Syria, and in some cases to the Sudan. In addition, if your laptop is loaded with certain encryption software, “effective control” must be maintained in a broad range of countries. “Effective control” means you must keep the item in your physical possession or keep it secured in a place such as a hotel safe, a bonded warehouse, or a locked or guarded exhibition facility.
Currently, the “tools of the trade” exception does not apply to controlled technology. In other words, the Bureau of Industry and Security (BIS) would require a license to take certain technologies found on the BIS Commerce Control list (CCL) (Supplement No. 1 to part 774 of the EAR Categories 0-9), depending on the technology and the country.
Travel to certain sanctioned countries would require a license from the Office of Foreign Asset Control (OFAC), or could, in fact, be denied. OFAC also has regulations regarding money transactions, including bank transfers, and the exchange of goods and services in certain sanctioned countries.
A license would be required if you are taking an item found on the Department of State’s U.S. Munitions List (USML). A license would be required if you are providing a defense service (includes training) to a foreign person whether here in the U.S. or abroad. A license would also be required if you are supplying controlled (on the CCL) technology to a foreign person during a presentation or conference that is not open to the public domain.
There are various lists of persons and entities kept by the Department of State, OFAC, and BIS that we are prohibited from doing business with; in other words, we should not be providing them with a defense service (includes training), giving money to these people or organizations, or providing them with controlled (on the CCL) proprietary technology. We can be fined by the government agencies if we do business with any person or entity found on these lists.
Please contact the Office of Research Administration, if you have any questions regarding export control issues related to your research projects or travel outside the U.S. at 817-272-2105 or via e-mail firstname.lastname@example.org.
Commodity Jurisdiction Ruling: Where an article is arguably covered by both the EAR and ITAR, a request can be made to the State Department to determine which agency will have jurisdiction over the export of the article.
Controlled technology: Controlled technology is defined in the General Technology Note and in the Commerce Control List (Supplement No. 1 to part 774 of the EAR Categories 0-9).
Deemed Export: The disclosure or transfer of export controlled software, technologies or technical data to a foreign entity or individual inside the US is “deemed” to be an export to the home country of the foreign entity or individual. The term “deemed export” applies to technology transfers under the EAR and the provision of ITAR technical data and defense services. Under the policies of most research institutions, foreign faculty, students, staff, and scholars may not be singled out for restrictions in their access to educational and research activities. Nor will the institution agree to restrictions on publication of research results, other than a short period (generally 30-60 days) for sponsor review (but not approval) of proposed publications to remove inadvertently included proprietary information provided by the sponsor or to seek patent protection.
Effective Control: When travelling to certain countries with a laptop loaded with certain encryption products the item must be kept in the traveler’s physical possession or in a secured place such as a hotel safe, bonded warehouse or a locked or guarded exhibition facility.
Encryption software: Computer programs that provide capability of encryption functions or confidentiality of information or information systems. Such software includes source code, object code, applications software, or system software.
Empowered Official - a U.S. person who: (1) is directly employed by the applicant or a subsidiary in a position having authority for policy or management within the applicant organization; and (2) Is legally empowered in writing by the applicant to sign license applications or other requests for approval on behalf of the applicant; and (3) Understands the provisions and requirements of the various export control statutes and regulations, and the criminal liability, civil liability and administrative penalties for violating the Arms Export Control Act and the International Traffic in Arms Regulations; and (4) Has the independent authority to: (i) Enquire into any aspect of a proposed export or temporary import by the applicant, and (ii) Verify the legality of the transaction and the accuracy of the information to be submitted; and (iii) Refuse to sign any license application or other request for approval without prejudice or other adverse recourse. (22 C.F.R.§ 120.25)
Export: The term export, as used in export control regulations, has an expansive meaning. Generally, an export includes any: (1) actual shipment of any covered goods or items; (2) the electronic or digital transmission of any covered goods, items or related goods or items; (3) any release or disclosure, including verbal disclosures or visual inspections, of any technology, software or technical data to any foreign national; or (4) actual use or application of covered technology on behalf of or for the benefit of any foreign entity or person anywhere. The official definition of export under the EAR and ITAR should be consulted when determining whether a specific act constitutes an export. As is evident in many instances, export is defined so as to preclude the participation of foreign graduate students in research that involves covered technology without first obtaining a license from the appropriate government agency.
Export Administration Regulations (EAR): The Export Administration Regulations (EAR), Title 15, sections 730-774 of the Code of Federal Regulations (CFR) are promulgated and implemented by the Department of Commerce. The EAR regulate the export of goods and services identified on the Commodity Control List (CCL), Title 15 CFR section 774, Supp. 1. The complete text of the EAR and CCL are available online at http://www.access.gpo.gov/bis/ear/ear_data.html.
Foreign person: means any natural person who is not a lawful permanent resident as defined by 8 U.S.C. 1101(a)(20)[http://www4.law.cornell.edu/uscode/8/1101.html] or who is not a protected individual as defined by 8 U.S.C. 1324(a)(3)[http://www4.law.cornell.edu/uscode/8/1324.html]. 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: as used in the export control regulations, includes basic or applied research in science and/or engineering at an accredited institution of higher learning in the United States where the resulting information is ordinarily published and shared broadly in the scientific community. Fundamental research is distinguished from research which results in information which is restricted for proprietary reasons or pursuant to specific U.S. Government access and dissemination controls. University research will not be deemed to qualify as Fundamental Research if: (1) the University or research accepts any restrictions on the publication of the information resulting from the research, other than limited prepublication reviews by research sponsors to prevent inadvertent divulging of proprietary information provided to the researcher by sponsor or to insure that publication will not compromise patent rights of the sponsor; or (2) the research is federally funded and specific access and dissemination controls regarding the resulting information have been accepted by University or the researcher. The citation for the official definition of Fundamental Research under the EAR is 15 CFR § 734.8. The ITAR citation is 22 CFR § 120.11.
International Traffic in Arms Regulations (ITAR): The International Traffic in Arms Regulations (ITAR), 22 CFR sections 120-130, are promulgated and implemented by the Department of State and regulate defense articles and services and related technical data that are identified on the Munitions Control List (MCL), 22 CFR § 121.1. Click here for complete, on-line versions of the ITAR: http://pmddtc.state.gov/official_itar_and_amendments.htm and MCL http://pmddtc.state.gov/docs/ITAR/2007/official_itar/ITAR_Part_121.pdf
Office of Foreign Asset Control: The Office of Foreign Assets Control ("OFAC") of the US Department of the Treasury administers and enforces economic and trade sanctions based on US foreign policy and national security goals against targeted foreign countries, terrorists, international narcotics traffickers, and those engaged in activities related to the proliferation of weapons of mass destruction. OFAC acts under Presidential wartime and national emergency powers, as well as authority granted by specific legislation, to impose controls on transactions and freeze foreign assets under US jurisdiction. Many of the sanctions are based on United Nations and other international mandates, are multilateral in scope, and involve close cooperation with allied governments. http://www.treas.gov/offices/enforcement/ofac/
Public Domain: (22 CFR 120.11) means 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.
Technology, General Note: Specific information necessary for the "development", "production", or "use" of a product. The information takes the form of "technical data" or "technical assistance". Controlled "technology" is defined in the General Technology Note and in the Commerce Control List (Supplement No. 1 to part 774 of the EAR).
N.B.: Technical assistance--May take forms such as instruction, skills training, working knowledge, consulting services.
Note: "Technical assistance" may involve transfer of "technical data".
Technical data: May take forms such 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.
Tools of the Trade: Items considered to be tools of the trade (commodities, software, and technology) may be temporarily export and re-export commodities and software for temporary use abroad (including use in international waters). Consult EAR Part 740.9 for more on tools of the trade.
United States Munitions Control List: List of Technologies controlled under International Traffic in Arms Regulations (ITAR) http://pmddtc.state.gov/docs/ITAR/2007/official_itar/ITAR_Part_121.pdf
(Certain definitions in this resource has been derived from materials from the MIT Office of Sponsored Programs (OSP) and the University of Maryland Office of Research Administration and Advancement)
FREQUENTLY ASKED QUESTIONS
Current export law controls both hardware and information concerning a wide range of technologies in a way that may have a substantial impact on research at UT Arlington. Federal regulations control the conditions under which certain information, technologies, and commodities can be transmitted overseas to anyone, including U.S. citizens, or to a foreign national on U.S. soil. The following Q&A may help clarify some of the requirements.
1. What is an export?
The export regulations define an export as:
- Any oral, written, electronic or visual disclosure, shipment, transfer or transmission outside of the United States to anyone, including a U.S. citizen, of any commodity, technology (information, technical data, or assistance) or software/codes
- 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, wherever located (even to a foreign student or colleague at UT Arlington)
- Any transfer of these items or information to a foreign embassy or affiliate.
It is important to emphasize 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 in a university setting.
2. Who controls exports?
There are two government agencies that control exports:
- The United States Department of Commerce through its Export Administration Regulations (EAR), Title 15, sections 730-774 of the Code of Federal Regulations. For a list of controlled technologies, see 15 CFR 774, Supplement I.
- The United States Department of State (which controls the export of “defense articles and defense services”) under the International Traffic in Arms Regulations (ITAR), 22 CFR 120-130. For a list of controlled technologies, see 22 CFR 121.1.
- A complete on-line version of the EAR and ITAR (including the critical technology list) is available on-line at:
3. What is fundamental research?
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 learning in the United States where the resulting information, in some cases, is ordinarily published and shared broadly in the scientific community and, in other cases, where the resulting information has been or is about to be published. Fundamental research is distinguished from research that results in information that is restricted for proprietary reasons or pursuant to specific U.S. government access and dissemination controls. 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 inadvertent divulging of 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.
- All Fundamental Research is Exempt from EAR.
4. What is considered published information as used in Question 3?
The EAR and ITAR approach the issue of publication differently. For the EAR, the requirement is that the information has been, is about to be, or is ordinarily published. The ITAR requirement is that the information has been published.
Information becomes “published” or considered as “ordinarily published” when it is generally accessible to the interested public through a variety of ways. Publication in periodicals, books, print, electronic or any other media available for general distribution to any member of the public or to those that would be interested in a scientific or engineering discipline. Published or ordinarily published material also includes 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 “open” 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 (but not necessarily a recording) of the proceedings and presentations. In all cases, access to the information must be free or for a fee that does not exceed the cost to produce and distribute the material or hold the conference (including a reasonable profit).
5. What is public domain and why is it important?
Public domain is the term used for “information that is published and generally accessible or available to the public” 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 which demonstrate public availability which are enumerated in the EAR.
6. If a license is needed, what is the process?
UT Arlington has designated Jeremy Forsberg as the Empowered Official for export control regulations. He will arrange appropriate support within the University and, where necessary, outside the University to address export control and license issues. Unless there is an urgent need for expedited review and approval, it normally takes six months or longer to secure a license to export controlled materials from the U.S. or to transmit them to a non U.S. citizen or permanent resident within the U.S.