Exporting Commodities, Technical Data or Software
Foreign National Access to EAR‐ and ITAR‐controlled Items and Data
Staying within the Fundamental Research Exclusion (FRE) Outside the Laboratory
International Collaborations and Conducting Research Abroad
Fabrication and Service Contracts; Spin‐off Entities
Office of Foreign Assets Controls (OFAC)
Exporting Commodities, Technical Data or Software[collapse title=”I intend to export an item, technical data, or software. What do I need to do in advance of the export?”]
Notify the Export Compliance Officer at least 60 days prior to your intention to export so that compliance requirements can be resolved.
There are two primary concerns:
- Export recipients must be screened against the U.S. Government’s restricted party watch lists
- The export of an item, data, or software may require an export license
If the Export Compliance Officer determines that the item requires an export license, you will need to wait until we have the license. In any case, you will need to wait until a restricted party screening has taken place. Absent any screening concern and no license requirement, an export can proceed immediately.
[/collapse] [collapse title=”Does it matter how I plan to export the item, i.e. ship by freight forwarder or courier, hand‐carry, transmit data/software electronically?”]
No; the method of export has nothing to do with whether a license is required.
[/collapse] [collapse title=”How difficult is it to obtain an export license to ship tangible items, data, or software?”]
Licenses are normally issued within 60 days from the date an application is submitted.
Normally and, subject to certain exceptions, it is not difficult to obtain a license. Upon obtaining the necessary details about the export (e.g., nature of the item, purpose/end use, destination, and end user) the Export Compliance Officer prepares and files the appropriate type of license application. Dual civilian-military use items are licensed by the Department of Commerce while military use items are licensed by the Department of State. The license application is filed through one of the online U.S. government agency portals, and the Export Compliance Officer is able to track the government’s approval process. Licenses are normally issued within 60 days.
Note that where the government finds the proposed export to have particular national security, biological safety, or nuclear or missile technology implications, the applicable Government agency can deliberate longer over the issuance of the license, referring it for interagency review or requesting UGA to provide specific details. It is critical to allow sufficient time prior to intended export for the license application to be processed.
Where the license application is intended to cover the provision of a defense service under the ITAR, (i.e. the release in any manner of ITAR technical data to a foreign national or training or assistance to a foreign national using ITAR data), this type of ITAR license, called a Technical Assistance Agreement or TAA, can take longer to prepare and longer to process.
[/collapse] [collapse title=”Once we have a license authorization, am I done with the compliance requirements? “] No.
All export licenses and authorization carry provisos or conditions which are the Government’s specific restrictions or limitations on the export activity. For example, the Government may require that the recipient of the export provide a Letter of Assurance that they will not transfer or re‐export the item beyond the originally licensed country destination. Limitations on the duration of the license or on access by foreign nationals from certain countries may also apply. Failure to adhere to these provisos results in an enforceable export violation.
[/collapse] [collapse title=”Do exports to every country require an export license?”] Not necessarily.
Under the EAR dual use regulations, license requirements are on an item by item, country by country basis. As such, your particular item may or may not require a license. Under the ITAR defense regulations, exports to all countries presumptively require a license and, in some cases, depending on the country, the State Department will not, as a matter of policy, issue a license. For example, China is per se a prohibited country under the ITAR USML regulations: the State Department will not consider issuing a license of a USML item to China. There are approximately 10 other countries that are likewise prohibited under ITAR. Therefore, it is essential that all exports be cleared by the Export Compliance Officer.
[/collapse] [collapse title=”Do I need an export license to temporarily ship controlled research equipment or prototypes/samples out of the U.S., for example, for purposes of field research or equipment demonstration?”] In some cases, yes.
The answer depends on the export control jurisdiction of the item, as follows:
Scenario A: EAR dual use items: if the equipment does not require a license to export it to any country, then no, the temporary export does not require a license. If on the other hand, the item would normally require a license to export abroad, a specific license exemption such as the “Tool of Trade” exemption must apply to the temporary export or otherwise a license is required. [Note: the Tool of Trade exemption itself has numerous qualifications based on type of export, destination, and duration of export. Hence, it can only be used when all requirements are met.]
Scenario B: ITAR USML items: Yes: a DSP73 license is always required, even if only sending or transporting the ITAR equipment to international waters or airspace (i.e. not landing it any particular country); there is no Tool of Trade exemption under the ITAR.
[/collapse] [collapse title=”How does licensing work if I’m intending to ship both EAR and ITAR classified items? “] You will likely need to obtain two licenses.
The ITAR item will require a DSP license, depending on the purpose of the export; the EAR item may require a separate license if controlled under the EAR. EAR items incorporated into ITAR items, lose their EAR identity: the entire item gets classified under ITAR. ITAR items incorporated into EAR‐controlled or otherwise non‐ licensable items (No License Required) render the entire assembly ITAR, by virtue of the “see‐through” rule under the ITAR regulations.
[/collapse] [collapse title=”What does it mean to provide a “defense service” under the ITAR regulations?”] When I release ITAR‐classified technical data to a foreign national (including foreign national students or visitors on campus, off campus, or abroad), this constitutes a defense service, requiring a license prior to such activity. In addition, providing technical assistance or training to a foreign military organization in the U.S. or abroad constitutes a defense service, regardless of whether the data or information being transferred is EAR or ITAR‐governed. In these instances, it is necessary to first obtain a TAA from the State Department prior to releasing the data or conducting the activity.
[/collapse] [collapse title=”Does that mean teaching foreign national students about something which happens to be listed on the USML requires a license?”] Absolutely not.
When teaching or discussing any item in the public domain which happens to be listed on the USML or we have self‐invented such information during the course of fundamental research with the intention to publish it, there is no license requirement. The license requirement applies when we are exporting ITAR data which we have received from a sponsor (government or industry) or research collaborator (government, industry, or research institution) under a restricted agreement i.e. it is explicitly export controlled, and does not qualify as fundamental research intended for the public domain.
[/collapse] [collapse title=”Is there any easy way to distinguish between what is classified as an EAR vs. ITAR item for export license purposes, such as a laboratory research tool? What if the classification is not clear from the use of the vendor’s specifications?”] When in doubt, refer the evaluation to the Export Compliance Officer.
Typically, our research instruments are not categorized under the USML; however, as noted earlier, they may be dual‐use controlled under the EAR and hence may require a license. Where an item is specifically designed or modified for defense purposes as defined under the USML, it is likely ITAR‐classified. When an item is procured, this designation may be referenced in the vendors’ Operation Manual or sales documentation, though not always. Research institutions transferring ITAR items during the course of collaborative research do not always identify such items as ITAR controlled, unless the Material Transfer Agreement so requires. Bottom line: you cannot tell whether an item is EAR or ITAR controlled merely by looking at: if there is any doubt, refer the evaluation to the Export Compliance Officer who will assist in the classification for license purposes.
[/collapse] [collapse title=”Do I really need to be concerned if the item that I plan to export is commercially available abroad?”] Yes. Commercial availability does not remove a controlled article from export jurisdiction and a potential licensing requirement.
[/collapse] [collapse title=”Do I need to be concerned if I’m importing an item into the U.S., i.e., are there import compliance regulations?”] All imported items are subject to U.S. Customs regulations, and may have Customs duty and reporting requirements. In addition, importing items listed on the USML require an ITAR license, unless certain specific exemptions are met.
Foreign National Access to EAR‐ and ITAR‐controlled Items and Data[collapse title=”Is a license necessary for foreign national access to export controlled laboratory equipment?”] In some cases, yes.
Assuming the Fundamental Research Exclusion (FRE) applies to the activity in which EAR‐classified equipment is being accessed, generally speaking no license is required. However, there are some exceptions to this rule: 1) when citizenship or certain publication restrictions are accepted (thus the FRE is lost;) 2) when certain levels of advanced cryptographic functionality and source code are involved; and 3) when third party proprietary “use” and “development” technology pertaining to the equipment is used, if it in fact is controlled.
Foreign national access to ITAR-classified equipment will require a Technical Assistance Agreement.
[/collapse] [collapse title=”Is a license necessary for foreign national access to export controlled technology/ technical data? “] In some cases, yes.
Assuming the Fundamental Research Exclusion (FRE) applies to the activity in which EAR‐classified technology is being accessed, generally speaking no license is required. However, there are some exceptions to this rule: 1) when citizenship or certain publication restrictions are accepted (thus the FRE is lost;) 2) when certain levels of advanced cryptographic functionality and source code are involved; and 3) when third party proprietary “use” and “development” technology pertaining to the equipment is used, if it in fact is controlled.
Foreign national access to ITAR-classified technical data will require a Technical Assistance Agreement.
[/collapse] [collapse title=”How does having an ITAR item in my laboratory affect foreign national (student, post doc, H1) access to it?”] If you’ve invented the item and publish the results of your invention, there is no access restriction, since it was created under the Fundamental Research/Public Domain exclusion. However, if you’ve purchased the item or otherwise received it from a third party (i.e. proprietary technology) and it is not already in the public domain, then access to or use of the item that allows the foreign national insight into how it works (directly or by virtue of controlled technical data) is restricted and subject to license authorization; in this case, while a license application is pending or if no license is applied for or approved, the ITAR item will require a Technology Control Plan to restrict access by foreign nationals.
[/collapse] [collapse title=”But can’t foreign nationals access all equipment and data that is under the Fundamental Research/Public Domain Exclusions when applicable?”] No.
See “How does having an ITAR item in my laboratory affect foreign national (student, post doc, H1) access to it?” The same rule applies to ITAR technical data (not self‐invented) that exists in any form (soft or hard copy), conversational release of data, blue prints, manuals, etc.
[/collapse] [collapse title=”What if I’m a foreign national PI who wishes to access an ITAR item as part of my fundamental research program: am I excluded from access as well?”] There is one exception under the ITAR which allows a PI access to ITAR technical data where the PI is a bona fide, full time employee of the research institution and meets other specific criteria. Assuming the terms of this exception are met, the PI is subject to the same no‐transfer restrictions that a U.S. person PI is subject to. Hence, this exception is used for accessing background information only necessary to launch or conceptualize contemplated fundamental research. If the research requires the data to be shared with the research team which may include foreign nationals, the exception cannot be invoked, since only the PI may qualify under the exception. PIs wishing to explore using this exception must contact UGA’s export administrator prior to accessing any such data.
[/collapse] [collapse title=”Is there any problem with communicating with or assisting a foreign government with respect to our research?”] It depends on the situation.
If the research involves ITAR technical data and we are training or assisting the government representative to be able to use it in a defense context, this would require a “defense service” TAA. This applies even if the data is already in the public domain. This rule may change under a current proposal by State, but is not yet law; i.e. data not yet in the public domain and provided to a foreign defense organization would still constitute a defense service, and require a TAA. (Note: even EAR‐classified technical data being provided to a foreign defense organization for a defense purpose may constitute a defense service).
Staying within the Fundamental Research Exclusion (FRE) Outside the Laboratory[collapse title=”How do I remain within the FRE for purposes of the EAR and ITAR when teaching or lecturing abroad?”] When teaching or presenting research results abroad, attending professional conferences etc., as long as what is being presented is the results of fundamental research intended for publication or to be published, there is no export license requirement. However, to the extent you depart from this framework and present in any form data which is proprietary to another party, or restricted by the sponsor’s contract or funding mechanism, then the FRE education and conference exclusions no longer apply. Note that when presenting at professional conference has to be one normally associated with the academic or professional subject at hand and not closed in a way that is contrary to the premise of published fundamental research.
[/collapse] [collapse title=”What if I need to export laboratory instrument or tools as part of my work abroad?”] See Travel Abroad and International Collaborations.
Travel Abroad[collapse title=”Can I bring my laptop and other hand held communication devices with me?”] Yes, with some exceptions.
If, for example, you happen to have export controlled data on your laptop this would require a license, or license exception , depending on its EAR or ITAR classification.
Travel to Cuba with university owned laptops or equipment would require a license from the Commerce Department. However, personal laptops or equipment may be taken to Cuba using a license exception.
Licenses exception TMP (university owned) and BAG (personal) can be used for travel with laptops or other equipment to most destinations as “Tools of Trade.”
[/collapse] [collapse title=”Can I hand carry samples or other laboratory instruments?”] If EAR (dual use) controlled, such items may or may not qualify under the Tools of Trade exemption, and therefore require prior classification. If ITAR controlled, a license is likely required.
International Collaborations and Conducting Research Abroad[collapse title=”Does collaborating internationally with another researcher or foreign institution have export control requirements?”] Yes, in several respects.
The exchange of scientific information with researchers and administrators abroad can trigger control requirements such as end user screening and export licensing for tangible items and software under ITAR and EAR control regimes (see also OFAC section below).
In addition, the ITAR regulations include controls on providing a “defense service.” This pertains to providing advice, training assistance, and other release of technical data to a foreign national with respect to an article on the USML or providing same to a foreign national for a military/defense objective with respect to any article, whether or not listed on the USML.
In addition, visiting scholars and researchers who visit UGA as part of the collaboration will likewise need to be restricted from accessing UGA laboratories wherein ITAR items or data are kept or used.[/collapse]
Fabrication and Service Contracts; Spin‐off Entities[collapse title=”Do fabrication and service activities outside of fundamental research trigger special export control concerns?”] Most definitely, yes. Where fabrication or contract service work is being conducted using the university’s physical or human resources (i.e. a separate legal entity does not own or house the activity), it is essential that the PI/Administrator leading or conducting such activity contact the export control administrator to understand the export control implications and requirements prior to such activity occurring. Again, certain exemptions such as the ITAR bona fide employee exemption will not apply to this type of non‐ research/academic activity.
[/collapse] [collapse title=”What if the fabrication and service activities are being conducted through an independently-owned spin-off entity, i.e. UGA does not own the activity nor is it the entity disclosing any data being used?”] Where a UGA PI or administrator has spun‐off or is working for a separately organized company to perform contract services independent of his/her research or teaching position at UGA, the activity conducted by this company cannot be conducted using the university’s physical resources (including laboratory space) or human resources (unless by separate contract). In these cases, such activity ‐ ‐ which is outside the scope of the university’s fundamental research exclusion ‐ ‐ may trigger export control requirements for which the University will not be legally responsible.
In such situations, it is necessary for the separate legal entity to seek separate counsel pertaining to export control compliance obligations. As noted above, the bona fide employee exemption under ITAR allowing a foreign national faculty member access to ITAR data does not apply or carry over to ITAR work or access to controlled instruments or data provided by and conducted through a separate proprietary entity.[/collapse]
Office of Foreign Assets Controls (OFAC)[collapse title=”What Special Rules Apply to Cuba, Iran, Syria and Sudan?”] The OFAC regulations pertaining to transactions with these countries vary by country. These regulations address not only export, but a much broader spectrum of activity (e.g., funding, providing services) that OFAC restricts absent specific license approval.
For example, the Cuba sanctions regulate personal travel to Cuba as well as professional research activity conducted with Cuba institutions here and abroad. That said, the Cuba regulations allow for broad range of research and humanitarian related activity when approved by license from OFAC.
The Iran regulations, on the other hand, do not regulate individual tourist travel to Iran, but remain highly restricted as to any activity, research or otherwise, which OFAC defines as a “service” to Iran. While certain kinds of collaborative research activity are permissible with Iranian institutions, to the extent such research contemplates the exchange of material items with Iran or, providing advice on establishing a laboratory or research facility in Iran, a license may be required. Likewise, peer review or editorial comment that extends beyond the scope of what is normally defined as credential input or scientific journal editorial review may likewise trigger a license requirement.
With respect to Syria and Sudan, because of the geopolitical instability in both countries, transactions with those nations likewise must be evaluated carefully for evolving sanctions and requirements.
Hence, when contemplating any research or transactional activity with one of these OFAC sanctioned countries or foreign nationals known to reside in these countries, contact the Export Compliance Officer for assistance before proceeding.