Frequently Asked Questions
What is an export?
What are controlled articles and information?
How is access to controlled items limited?
Who is a foreign person?
What are sanctioned parties?
What are "dual-use" commodities, software and technology?
What are defense articles?
Who is the exporter?
What is meant by classifying something according to the CCL or the USML?
What is a commodity jurisdiction?
Why is the country of export significant?
Why is the country of citizenship significant?
What exemptions from licensing may be available under the ITAR?
What is fundamental research?
Who is considered a bona fide and regular full time employee at a university?
What are the reasons for control under the EAR?
Why is the citizenship of the recipient important?
What is a deemed export?
What is the significance of the term subject to?
What is publicly available software and technology?
What is educational information?
What is fundamental research?
1. What are U.S. export controls? U.S. Export controls comprise a complex and dynamic set of U.S. trade regulations aimed at safeguarding U.S. national security and furthering U.S. foreign policy and economic objectives. This is accomplished by managing exports of controlled articles and information in order to limit access by some foreign persons and sanctioned parties.
- What is an export? An export is sending a controlled item out of the United States, communicating controlled information to a foreign person either within the U.S. or outside of the US or performing a defense service for or on behalf of a foreign person either within the U.S. or outside of the U.S.
- What are controlled articles and information? These are items which the United States government has determined to be valuable to its interests, the release of which must be strictly managed to benefit U.S. national security or foreign policy and to maintain U.S. leadership in technology development.
- How is access to controlled items limited? The agencies in charge of administering and enforcing the regulations limit access to controlled items by requiring government approval in the form of a license or an exception to the requirement for a license and associated record-keeping, as determined by the totality of the circumstances surrounding the proposed export.
- Who is a foreign person? A foreign person is any living person or entity which is not a U.S. person. A U.S. person is generally defined as a U.S. citizen, permanent resident alien (green card holder) or protected person (refugee or asylum recipient).
- What are sanctioned parties? Sanctioned parties are persons or entities which have been denied export privileges for a given period of time, sometimes indefinitely. It is a violation of the regulations to engage in exports with these parties. As there are currently more than 6000 such persons or entities, it is important to screen the appropriate government lists to determine whether an intended recipient of exports is restricted. A screen of restricted parties can be accomplished by subscribing to an appropriate software service or by searching the compilation of the lists published by the Departments of Commerce, State and Treasury and found at http://export.gov/ecr/eg_main_023148.asp
2. What trade regulations apply? The Export Administration Regulations (EAR) are promulgated under the Export Administration Act as authorized under the International Emergency Economic Powers Act. These regulations are administered by the Bureau of Industry and Security (BIS) within the U.S. Department of Commerce and control access to dual-use commodities, software and technology. The complete EAR can be found on the BIS website at http://www.bis.doc.gov/index.htm.
- What are "dual-use" commodities, software and technology? Dual-use items and information which have a predominantly commercial use but also have military applications. Dual-use items controlled under the EAR can be found on the Commerce Control List (CCL).
The International Traffic in Arms Regulations (ITAR) are promulgated under the Arms Export Control Act. These regulations are administered by the Directorate of Defense Trade Controls (DDTC) within the U.S. Department of State and control access to defense articles and services. The ITAR can be found on the DDTC website at http://www.pmddtc.state.gov/index.html.
- What are defense articles? These are any items or technical data included in the U.S. Munitions List (USML) or later determined to be appropriately placed on the USML because they were “specifically designed, developed, configured, adapted, or modified for a military application” and do not have predominant civil applications and a performance equivalent to an article or service used for civil applications.
The Office of Foreign Assets Controls (OFAC) within the U.S. Department of the Treasury administers and enforces economic and trade sanctions against targeted foreign countries and regimes, terrorists, international narcotics traffickers, those engaged in activities related to the proliferation of weapons of mass destruction, and other threats to the national security, foreign policy or economy of the United States. These regulations can be found on the OFAC website at http://www.treasury.gov/about/organizational-structure/offices/Pages/Office-of-Foreign-Assets-Control.aspx
3. When is a license required and how is this requirement determined? It is important to remember that anything can potentially require an export license if it is going to a restricted place, to restricted persons, or for a restricted use. With that said, whether or not a license is required in order to export a commodity, software or technology, requires a close examination of the facts of the situation. It is the responsibility of the exporter to be aware of who is receiving the article, information or service and where it is going. It is also the responsibility of the exporter to determine the correct classification for the item according to the CCL or the USML.
- Who is the exporter? Under the EAR this is the person who has the authority of a principal party in interest to determine and control the sending of items out of the United States. Under the Foreign Trade Statistics Regulations the exporter is the U.S. principal party in interest. Basically this is the person who derives the benefits from the export. This term is not expressly defined under the ITAR.
- What is meant by classifying something according to the CCL or the USML? It is the responsibility of the person exporting the item or information or providing the controlled service to classify the item to be exported by searching the ITAR’s United States Munitions List (USML) and the EAR’s Commerce Control List (CCL) in order to determine which agency has regulatory authority. If the controlled status and regulatory authority cannot be determined after carefully reviewing the USML and the CCL and applying the policy to determine new designations, a request for a commodity jurisdiction should be made to the DDTC.
- What is a commodity jurisdiction? The commodity jurisdiction decision provided by DDTC will determine whether DDTC believes the item should be controlled under the ITAR or whether it should be controlled under the EAR.
4. What if a project involves items or technical data found on the USML? If the item is on the USML or should be placed there according to the policy found at 22 C.F.R. 120.3 because it has been specially designed, developed, configured, adapted, or modified for a military application, then a license is required to export the item outside of the United States or to provide technical data or defense services to a foreign person, regardless of location. Whether a license will be granted is dependent upon the country to which export is proposed and the country of citizenship of the recipient. If the proposed export will occur within the United States there may be available to universities some limited exemptions from the licensing requirement.
- Why is the country of export significant? The ITAR have a policy of denial for licenses to export to some countries. These are countries against which there is some type of embargo. The complete list of these countries can be found at 22 CFR 126.1
- Why is the country of citizenship significant? In determining whether a license will be granted for exports of technical data, the ITAR consider all countries of citizenship or residence and not simply the most recent.
- What exemptions from licensing may be available under the ITAR? The most common exemption to the ITAR used by universities is for information in the public domain which is defined as information which is published and which is generally accessible or available to the public. This includes information available through published patents, public libraries, open subscriptions and unlimited distribution at conferences or meetings generally accessible to the public. It also includes information available through fundamental research. Universities also have an exemption from licensing for bona fide and full time regular employees.
- What is fundamental research? Fundamental research is defined as basic and applied 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 within the scientific community. It is important to note that this is expressly distinguished from research the results of which are restricted for proprietary reasons or specific U.S. Government access and dissemination controls. Therefore, where a university or its researchers accept any restrictions on access to or dissemination of the results of a research activity the exemption for fundamental research will not be available.
- Who is considered a bona fide and regular full time employee at a university? To be considered for this exemption the employee must be permanently and directly employed by the university and maintain a permanent abode in the United States throughout the period of employment. Also, the employee must not be a national of one of the countries listed in 22 CFR 126.1 to which exports are prohibited as a matter of policy. There is no similar exemption available under the EAR.
5. What are some representative examples of controlled itesm found on the USML? Firearms, kinetic energy weapon systems, ordnance, ablative materials fabricated from advanced composites, energetic materials, amphibious warfare vessels, military trucks and trailers, aircraft, military training devices, body armor and protective gear, radar tracking systems, infrared focal plane array detectors, military cryptographic systems, toxicological agents such as nerve and tear gas, spacecraft, nuclear weapons and detection devices, directed energy weapons systems. Also included are parts and components, technical data and defense services related to items which are found on the USML and any item designed, modified or adapted for a defense purpose.
6. What if a project involves commodities, software or technology found on the CCL? If an item is on the CCL the requirement for an export license is based upon the reason for control and the actual country to which the item will be shipped or citizenship of the recipient to whom the export is proposed. According to the EAR, all items in the U.S., all U.S- origin items wherever located, foreign-made commodities that incorporate more than prescribed de minimis amounts of U.S.-origin commodities and certain foreign-made direct products of U.S.-origin technology or software are subject to the requirements of the EAR. Items may be subject to the EAR yet may not generally be restricted for export.
- What are the reasons for control under the EAR? The EAR control goods for a variety of reasons including National Security (NS), Antiterrorism (AT), Short Supplies (SS), Nuclear Proliferation (NP), Missile Technology (MT), Chemical and Biological Weapons (CB) and Encryption (EI). These controls are applied to countries according to US participation in international treaties or to US foreign policy. Articles controlled for one of these reasons may not be exported to a country with the same control designation (e.g., NP) in the absence of a license from BIS.
- Why is the citizenship of the recipient important? A license determination must be made for tangible exports of EAR-controlled commodities, software or technology to foreign persons abroad and for transfers of software or technology within the US as this is considered a “deemed export”. The EAR is less restrictive than the ITAR with regard to citizenship and looks to the country of most recent citizenship or permanent residence, absent compelling evidence of continued strong ties to the country of former citizenship.
- What is a deemed export? Any release of technology or source code subject to the EAR to a foreign national is deemed to be an export to the home country(ies) of the foreign national. This definition includes releases which occur within the United States.
- What is the significance of the term subject to? Some items which are subject to the requirements of the EAR are not export controlled but may require a license if the exporter “knows or has reason to know” that the commodities, software or technology will be used for an impermissible end use such as stockpiling weapons of mass destruction, missile technology or biological and chemical weapons. Notwithstanding the broad scope of commodities, software and technologies which are subject to the EAR, there remain some which are not. This includes, for example, commodities, software and technologies which are exclusively controlled by another agency. It also includes publicly available technology and software.
- What is publicly available software and technology? Publicly available software and technology includes information which is already published or which will be published as well as educational information and fundamental research.
- What is educational information? This is information which is not subject to the EAR if it is released by instruction in catalog courses and associated teaching laboratories of academic institutions.
- What is fundamental research? This is basic and applied research in science and engineering where the resulting information is ordinarily published and shared broadly within the scientific community. This safe harbor is only available to research conducted at institutions located within the U.S. and it is not available for developmental research or for research, the results of which are subject to publication restrictions, such as sponsor or government approval, or to access limitations based on citizenship.
7. What are some representative examples of controlled items found on the CCL? Accelerometers, Micro-processors, silcon chips, submersible vehicles, encrypted software, oscilloscopes, lasers, viruses and bacteria, high-speed computers, microwave and millimeter wave electronic components, polygraphs and fingerprint analyzers. Whether any of these items is controlled is highly dependent upon the specifications of the particular item being considered.
8. What are the consequences of failing to comply? The penalties for violations of the export control regulations can be severe and may include imprisonment, civil and/or criminal fines for both the individual and institution, revocation of export privileges and prohibitions on future contracting with the Government.