The term "export controls" typically refers to regulations overseen by several federal agencies, especially the Departments of State, Commerce, and Treasury, that implement federal laws put in place to protect national security, promote foreign policy, and in some cases to control short supplies. The regulations govern the international transfer of military and most commercial items, including software and technical information, and certain services. In addition to the transfer of items out of the United States, the term “export” also refers to the release of controlled software source code or technical information to a foreign national, whether in the U.S. or abroad.
It is important for all members of the University community to understand how export control regulations can affect their University activities, identify export control issues, and obtain assistance to properly document exports.
Export control regulations are intricate and involved. Penalties and fines imposed for export control violations are severe and can include criminal, civil and administrative charges. You are encouraged to seek assistance for any question on the topic.
The University Office of Export Compliance (OEC) is responsible for directing and monitoring the University’s export control compliance program and implementing procedures and/or guidelines to comply with federal export control laws and regulations. For more information visit the OEC website or contact Susan MacNally at firstname.lastname@example.org or the KU Export Control Officer at email@example.com.
An “export” also occurs when controlled information is released to foreign nationals in the United States. This is deemed to be an export to the home country or countries of the foreign national (“deemed export”).
Technology and software is “released” for export through: Visual inspection by foreign nationals of U.S.-origin equipment and facilities; Oral exchanges of information in the United States or abroad; or the application to situations abroad of personal knowledge or technical experience acquired in the United States (734.2(b)(3) of the EAR).
A transfer is also considered an export when
- an item is leaving the United States temporarily
- an item is leaving the United State but is not for sale, (e.g. a gift)
- a foreign-origin item is exported from the United States, transferred through the United States, or returned from the United States to its foreign country of origin
A few examples of exports:
- Hand carrying a GPS unit to Canada
- Shipping biological materials under a material transfer agreement (MTA) to a colleague in England
- Shipping instruments to a research site in Mexico by freight forwarder
- Sending silicon wafers made in China back to China
- Leaving a standard laptop with a foreign colleague at the end of a research mission in Peru
- E-mailing blueprints to a colleague in Romania
- Sharing a sponsor’s proprietary technical information, protected under a non-disclosure agreement and which will not be published with the results, with a graduate student from Morocco.
|Agency:||Bureau of Industry and Security (BIS)||Directorate of Defense Trade Controls (DDTC)||Office of Foreign Assets Controls (OFAC)|
Export Administration Act (EAA)
Arms Export Control Act (AECA)
Trading with the Enemy Act, Int’l Emergency Economic Powers Act, & Others
Export Administration Regulations (EAR) 15 C.F.R. Parts 700-799
International Traffic in Arms Regulations (ITAR) 22 C.F.R. Parts 120-130
Regulations for Economic Sanctions, Terrorism Sanctions, & Others
|Lists:||Commerce Control List (CCL)||U.S. Munitions List (USML)||Lists of Specially Designated Nationals & Blocked Persons|
US State Department, Directorate of Defense Trade Controls (DDTC)
ITAR govern exports of "defense articles and defense services." ITAR contain the United States Munitions List (USML), a list of 21 categories of military and space-related items: defense articles and related technical data, defense services and technical assistance, plus both civilian and military satellites and spacecraft. A “defense article” is defined in the ITAR as any item or technical data on the USML or any item designed, developed, configured, adapted or modified for a military application.
Defense articles and services, and space-related items, are controlled more tightly than non-military commercial items. Exporting USML items or services almost always requires a license for transfer out of the U.S. or to a non-U.S. person within the U.S. This includes any release of defense technical data or assistance to foreign nationals either in the U.S. or abroad.
Whether an item or export situation is subject to the Department of State or another agency is not always self-evident. When questions arise, the Department of State has the authority to determine jurisdiction. In such cases the Export Control Officer will assist in submission of a Commodity Jurisdiction Request to ensure the application of the correct set of regulations.
A license for ITAR-controlled items or information requires detailed information about the export and who is involved, and may take 6 weeks to much longer to obtain. Licenses are unlikely to be granted for approximately 17 countries or nationalities proscribed from receiving military items or information.
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, incl. Chemical and 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 - Submersible Vessels, Oceanographic and Associated Equipment
XXI - Miscellaneous Articles
Export Administration Regulations (EAR)
US Department of Commerce, Bureau of Industry and Security (BIS)
The BIS is responsible for implementing and enforcing the EAR, which regulate the export of most commercial items, according to ten general prohibitions, including a subset of more tightly controlled “dual-use” commodities, software, and technologies which comprise the Commerce Control List (CCL). Dual use items have predominantly civilian uses, but also have military or proliferation applications. BIS is also charged with overseeing the anti-boycott provisions of the Export Administration Act. The EAR govern export of all items that are neither excluded from export controls (such as information in the public domain) nor subject to controls of another U.S. agency.
The Commerce Control List (CCL) is sometimes referred to as the “Dual Use List.” In general, any item subject to the EAR can be controlled for several reasons: where it is going, to whom it is going, and the end use of the item. In addition to these transaction-based aspects of transferring goods and information, items on the CCL are controlled because of what the items are or can do.
Ten Commerce Control List (CCL) Categories
0 = Nuclear materials, facilities and equipment (and miscellaneous items)
1 = Materials, Chemicals, Microorganisms and Toxins
2 = Materials Processing
3 = Electronics
4 = Computers
5 = Telecommunications and Information Security|
6 = Sensors and Lasers
7 = Navigation and Avionics|
8 = Marine
9 = Propulsion Systems, Space Vehicles, and Related Equipment
Five Product Groups (each category above has sections for each of the product groups below)
A. Systems, Equipment and Components
B. Test, Inspection and Production Equipment
The CCL is broken into 10 technology categories each divided into 5 groups of products (see above). Export Control Classification Numbers (ECCNs) are assigned according to technology category, type of product (e.g. equipment or software), and reasons for control. Nuclear proliferation, national security, missile technology, encryption, crime control, chemical and biological weapons, and anti-terrorism are some examples of reasons for controls. Each reason for control is associated with a list of countries for which export requires a license.
Export licenses and license exceptions. Unlike the USML, an item on the CCL may not require a license for every destination. For instance, an item controlled only for anti-terrorism can be sent without a license to any country not designated as a terrorist-supporting country (as long as the end-user and end use are not prohibited). If a license is required for a particular destination, then one of several specific “license exceptions” might apply. A license exception is authority for transferring an item without a license from BIS, if certain conditions are met. An example is the TMP (temporary export of tools of the trade) license exception, which is often—though not always—applicable to short-term shipments of university equipment to and from research sites outside the U.S. License exceptions carry their own general and specific conditions and limitations and must be applied carefully, as the exporter is responsible for mistakes. The use of a license exception must be documented.
If a license is required and no license exception is available, then a license must be obtained before export can occur. A license from BIS requires detailed information about the transaction and can take 6 weeks to several months to receive.
The university is required to keep records of exports of items on the CCL for a minimum of five years,
a) when no license is required (NLR) for a particular destination,
b) when an applicable license exception is used to authorize an export, and
c) of any export for which a license has been obtained (whether or not the item is on the CCL).
EAR 99 Any commercial items not under the jurisdiction of another government agency and not on the Commerce Control List, but still subject to EAR are designated “EAR 99,” a catch-all classification for all goods not subject to dual use controls, but still subject to general prohibitions concerning the end user and end use.
While the CCL is less restrictive than the USML, it can be more challenging to navigate, both for determining the correct ECCN and discerning whether a license is required or if a license exception is applicable to a particular transaction. Classification of items requires both technical expertise and regulatory knowledge. When an ECCN is not available from the manufacturer (e.g. for a KU-developed instrument) the Export Control Officer will provide regulatory guidance to assist technical experts to identify the correct classification or, if this can’t be determined, will assist in submitting a Commodity Classification Request to the BIS for an official classification. Contact the Export Control Officer, Susan MacNally, firstname.lastname@example.org, as early as possible for questions, guidance and assistance.
Office of Foreign Assets Control (OFAC)
US Treasury Department. OFAC administers and enforces trade embargos and sanctions against countries, entities, and individuals.
OFAC administers and enforces economic and trade sanctions against targeted foreign countries, terrorism sponsoring organizations, and international narcotics traffickers. OFAC controls may apply to a country or region of a country, to entities or individuals, or to specific types of transactions. The OFAC Website provides information on these sanctions as well as the complete list of Specially Designated Nationals and Blocked Persons (the "SDN list").
Limitations imposed by OFAC regulations vary considerably with destination and end users. Changes or updates, particularly to the SDN list, are frequent.
Other regulatory agencies that control exports
Nuclear Regulatory Commission, Office of International Programs:
Licenses nuclear material and equipment.
Department of the Interior, U.S. Fish and Wildlife Service:
Import and Export of wildlife and endangered and threatened species.
Food and Drug Administration, Office of Compliance:
For the Export of Unapproved Medical Devices
Patent and Trademark Office, Licensing and Review:
Oversees patent filing data sent abroad.
Environmental Protection Agency, Office of Solid Waste, International and Transportation Branch
Regulates hazardous waste exports
Publicly available information
Information that is in the public domain, that is, available to the public through libraries, newsstands, or open internet, is generally excluded from export controls. This includes published patent applications and patented technologies. In a broad sense, fundamental research and educational information (see definitions below) are subsets of publicly available information.
Limits to the publicly available information exclusion:
a) Encryption source code: Software using publicly available, open source encryption technology is not excluded from export controls.
b) Available at significant cost: If the purchase price is greater than the reasonable cost of providing the published material, the material is not considered to be publicly available.
c) Sanctions or embargoes may restrict financial or other transactions that involve publicly available information.
The conduct, products, and results of fundamental research conducted at U.S. institutions of higher education are generally excluded from federal “deemed export” controls in accordance with National Security Decision Directive 189 (commonly known as the “fundamental research exclusion”):
“Fundamental research” means 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.”
Research that conforms to the fundamental research definition has no restrictions to foreign nationals working on the project nor does it delay or require approval for disclosure of the results at public conferences, presentations, or in electronic or print publications.
Limits to the fundamental research exclusion
Not all University sponsored projects meet the definition of fundamental research. The following situations are not excluded from export control. In these cases an export license may be necessary to share, ship, or transfer the controlled item or information.
a) Fundamental research conducted outside of the U.S: The fundamental research exclusion does not apply to controlled items or technologies shipped, transmitted, hand-carried or transferred to foreign countries.
b) Restrictions to research: The fundamental research exclusion may also not apply if the university enters into a sponsored project agreement or contract which limits the university's right to publish the results of its research or restricts access to or participation in the research by foreign nationals. (See also the University’s Restricted Research Policy.)
c) Confidential or proprietary information: Any information that is provided to the University under a non-disclosure agreement and which the sponsor may exclude from research results could be subject to export controls.
d) Use of defense articles: Training a foreign national in the use of a defense article, even in the pursuit of fundamental research, would not be exempt from ITAR licensing requirements.
Information provided in the context of a catalog course or associated laboratory at accredited institutions of higher education within the United States is generally excluded from export controls as long as the course is accessible to the public.
Limits to the educational information exclusion:
a) Courses taught outside of the U.S.: a course that occurs in a foreign country, covers content that might be otherwise controlled, or provides services to citizens of embargoed countries may be subject to export regulations.
b) Private training or consulting. Discussions and consultation related to but outside of a course taught abroad that cover unpublished, otherwise controlled information or concern defense articles may constitute private training or technical assistance.
- Shipping or hand-carrying materials, equipment or supplies to another country.
- Transferring technology, technical data, or source code that is not protected by the exclusions to a foreign national in the U.S. or abroad.
- Collaboration with colleagues in other countries that includes sending or transmitting information abroad.
- Travel to or collaboration with individuals in a country subject to U.S. embargo or sanction.
- Proprietary work that involves controlled technology, including lab work performed under a business services agreement.
- Receiving information that cannot be disclosed without permission of another party.
- Accepting contractual restrictions on access to facilities or participation in a project by foreign nationals.
- Accepting approval rights or indefinite delays over publication of research results.
- Training foreign nationals to use a defense article, even if the project falls under the aegis of “fundamental research.” Developing encryption source code.
If any of these conditions apply to your project or activity contact Susan MacNally at email@example.com, Export Control Officer.
Steps for processing an export:
- Gather information about the export (what, where, when, how, to whom, and for what purpose). With the assistance of the Export Control Officer,
- Determine jurisdiction of items, technology, or financial transaction (Commerce, State, Treasury, other agency, or excluded from export controls).
- Classify items, if necessary, for items subject to EAR (Commerce).
- Determine whether a license is required for what it is and where it is going. All license determinations must be documented.
- If no license is required, the shipment will be marked “NLR” (No License Required.)
- If a license is required, determine whether a license exception is available and applicable for the situation.
- If no license exception is available, then a license application must be made.
- Screen all parties to the transaction to check for restrictions on who will receive the item.
- Ensure the end use of the item is not prohibited.
- Ship or share using appropriate authorization and documentation.
- Maintain records for at least 5 years.
Yes. With very few exceptions export documentation is required for all exports, even those in fulfillment of a government agency contract. Visit NASA’s export controls policy.
2. My item is consumer merchandise sold over the counter, here and in many countries. Surely it is not subject to export controls!
The fact that an item is mass-marketed doesn’t mean that it isn’t subject to export controls. Even commercially available hand-held GPS units , cell phones, and laptops currently available at most of your favorite “big box” stores are listed on the CCL. Although in many cases no export license will be required, records must be kept for exports of all items listed on the CCL, for a minimum of 5 years.
3. All scientific and scholarly activity at KU is protected by the “fundamental research” exclusion, isn’t it?
No. Here are some activities and items that are outside of the scope of fundamental research :
a. Confidential sponsor information which will not be published with your research results,
b. Activity under contractual terms that restrict access or dissemination of results, other than a short delay for the sponsor to remove confidential information or apply for a patent;
c. Projects under contractual stipulation that the content or results will be export controlled;
d. Work on a service-business agreement where the results are proprietary and not intended to be published;
e. Training of foreign persons to use defense articles or access defense technical data, even if the defense article is used in a project that otherwise conforms to fundamental research;
f. Purchase of items, software, or information on the USML or whose purchase contract indicates the item is export controlled.
4. The freight forwarder I’m using to ship my items internationally takes care of all export documentation.
Freight forwarders sometimes will file the Automated Export System (AES) documentation for U.S. Customs tracking, but you are still considered the exporter of record and would be held responsible for ensuring the proper identification of any controlled items, whether a license is required, and if a license is required, the license number or applicable license exception code.
5. I have a foreign national graduate student working on my research project. Do I need to be concerned about “deemed export” issues?
Possibly, but not in most cases. If any of the following are not true, or if you can’t determine that with certainty, contact the Export Control Officer for assistance.
a. The project conforms to the definition of “fundamental research,”
b. The project does not involve the use of a defense article,
c. The project does not rely on confidential or non-public technical information that will need to be shared with the student and which concerns controlled technology.
6. I’m shipping my equipment to Canada. There shouldn’t be an export license requirement for that.
Export license requirements exist for every country in the world, including Canada.
|BIS||Bureau of Industry and Security. Government agency under the Department of Commerce whose mission is to “advance U.S. national security, foreign policy, and economic objectives by ensuring an effective export control and treaty compliance system and promoting continued U.S. strategic technology leadership”.|
|CCL||Commerce Control List. Also known as the “dual-use” list. EAR §774.|
|Deemed Export||A release of technology or source code subject to the EAR to a foreign national in the U.S. or abroad. Such release is deemed to be an export to the home country of the foreign national.|
|Defense Article||Any item or technical data on the USML plus any item or technical data designed, developed, configured, adapted, or modified for a military application.|
|Defense Service||Furnishing of assistance, including training, to foreign persons, in the design, development, engineering, manufacture, production, assembly, testing, repair, maintenance, modification, operation, demilitarization, destruction, processing or use of a defense article.|
|DDTC||Directorate of Defense Trade Control, the agency of the State Department that oversees the implementation of the International Traffic in Arms Regulations (ITAR).|
|Dual-Use||Having both a civil and military or weapon proliferation application. Items on the CCL are in this category.|
|EAR||Export Administration Regulations. Regulations pursuant to the Export Administration Act, that govern the export of most commercial items, which are implemented by BIS of the Department of Commerce.|
|Encryption||The process of transforming information to make it less accessible to most and only accessible to a specific group. Additional regulations apply to items that use or incorporate encryption.|
|Exclusion||In the realm of export controls, “exclusion” pertains to information outside the jurisdiction of the controls, and as such is not subject to controls that otherwise might apply.|
|Export||An “export” may consist of transferring information, software or commodities to another country, but can also include disclosing controlled information, including technology and technical data, or software source code, to foreign nationals within or outside the United States.|
|Exporter||The person in the United States who has the authority of a principal party in interest to determine and control the sending of items out of the United States. Principal parties in interest are those persons in a transaction that receive the primary benefit, monetary or otherwise, of the transaction.|
|Foreign Entity||A business or other entity that is not incorporated to do business in the United States.|
|Foreign National/Foreign Person||A person who is not a U.S. citizen, lawful permanent resident (green card holder), or specially protected individual (i.e. asylum, refuge, amnesty).|
|Freight Forwarder||A person or a company that provides shipping services on behalf of individuals or organizations. Generally, the freight forwarder does not have the responsibility of the exporter or principal party in interest.|
basic and applied research in science and engineering, where the resulting information is ordinarily published and shared broadly within the scientific community. Such research can be distinguished from proprietary research and from industrial development, design, production, and product utilization, the results of which ordinarily are restricted for proprietary reasons or specific national security reasons . University research will not be 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, or
The research is funded by the U.S. Government and specific access and dissemination controls protecting information resulting from the research are applicable.
|ITAR||International Traffic in Arms Regulations. Regulations pursuant to the Arms Export Control Act that govern the export of military items, and are overseen by the DDTC, of the State Department.|
|OFAC||Office of Foreign Assets Control, an agency of the Treasury Department which oversees economic sanctions and embargoes.|
|Public Domain (ITAR §120.11)||
Public domain means information which is published and which is generally accessible or available to the public:
Through sales at newsstands and bookstores;
Through subscriptions which are available without restriction to any individual who desires to obtain or purchase the published information;
Through second class mailing privileges granted by the U.S. Government;
At libraries open to the public or from which the public can obtain documents;
Through patents available at any patent office;
Through unlimited distribution at a conference, meeting, seminar, trade show or exhibition, generally accessible to the public, in the United States;
Through public release (i.e., unlimited distribution) in any form (e.g., no necessarily in published form) after approval by the cognizant U.S. government department or agency;
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. (see Fundamental Research)
|Publically Available Information (EAR §732)||
Information that is generally accessible to the interested public in any form and, therefore, not subject to the EAR.
|Technical Data (EAR)||
Specific information required for the “development”, “production”, or “use” of a product which is itself “controlled”. 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, or read-only memories.
|Technical Data (ITAR)||
Information which is required for the design, development, production, manufacture, assembly, operation, repair, testing, maintenance, or modification of “defense articles”; classified information related to “defense articles”; information covered by an invention secrecy order; software directly related to “defense articles”.
Technical data does not include information concerning general scientific, mathematical or engineering principles commonly taught in schools, colleges and universities or information in the “public domain”. It also does not include basic marketing information on function or purpose or general system descriptions of “defense articles”.
|Technology (EAR)||Specific information necessary for the “development”, “production”, or “use” of a product. Release of technology to “use” an item requires all of the following to be transferred: Operation, installation (including on-site installation), maintenance (checking), repair, overhaul and refurbishing.|
|USML||United States Munitions List (ITAR §121): A list of defense articles and defense services controlled by the ITAR. Note that items not found on the USML can be also be designated as defense articles or services.|