VIII. DOCUMENTS

(Printer-friendly versions of the Export Control Policy)

I. INTRODUCTION

Certain types of University research may fall under Federal Government Export Controls (EC) regulations that prohibit unlicensed export of specific information and technologies, require prior approval for foreign nationals to access information, technologies and materials, and participate in research, limit partnering with a foreign company, and/or prohibit sharing research with persons who are not U.S. citizens.

Export controls may affect many aspects of research because the term “export” covers not only the shipment of information or materials to another country but also the release or disclosure of information or materials to foreign nationals on U.S. soil (“deemed export”). These restrictions are imposed on shipments abroad, as well as access to University research by foreign nationals. Therefore, the term "export" in these regulations has a very expansive meaning (see basic concepts below).

Export controls are based on (a) the nature of the item or activity, (b) the country involved in the transaction, (c) the person receiving or ultimately using the item or service, and (d) the end-use to which the item or service will be put.

U.S. export controls serve the following purposes: (a) to control any potential military application; (b) to protect U.S. trade/economic interests; (c) to control the exposure of controlled technologies, materials and information to foreign nationals and foreign countries; and (d) to prevent the proliferation of weapons of mass destruction.

Federal EC regulations are promulgated through the following agencies and regulations.

US State Department, International Traffic in Arms Regulation (ITAR)
Governs defense articles (including technical data) and defense services (predominately military items and information, including satellites and spacecraft).

US Commerce Department, Export Administration Regulations (EAR)Governs commodities, software and technology (or information) (primarily civilian); also includes some sanctions, embargoes and restrictions on transfers to certain end-uses and persons, including terrorists.

US Treasury Department, Office of Foreign Assets Control (OFAC)Maintains trade sanctions, embargoes and restrictions on transfers to certain persons, such as terrorists and narcotics traffickers.

US Nuclear Regulatory Commission             Governs nuclear equipment, materials, software and technology.

It is important that all University administrators, faculty and students responsible for or involved in research, teaching and travel understand their obligation to comply with EC regulations. The consequences of violating the regulations can be severe for the both the institution and the individual violators, and include fines and prison time.

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II. BASIC CONCEPTS AND TERMS
The Commerce Department’s Export Administration Regulations (EAR) and the State Department’s  International Traffic in Arms Regulations (ITAR) prohibit the export of specific unlicensed technologies for reasons of national security or for the protection of trade. Similarly, the Treasury Department’s Office of Foreign Assets Control (OFAC) administers and enforces boycotts that have been imposed against specific countries for reasons of foreign policy, national security, or based upon international agreements. (See Export Definitions)

Export control decisions depend on a correct understanding of the following terms. The official regulatory definition should be consulted for specific applications.  References to the Code of Federal Regulations (CFR) are included, where appropriate, to indicate the source(s) of information.  The Export Control Regulations are provided in Section 730 through 774 of  Chapter 15 of the CFR, and are designated below as 15 CFR 730,   whereas the International Trade and Arms Regulations are provided in Section 120 to 130 of Chapter 15, and are designated as 15 CFR 120.  Specific paragraphs are designated by the § symbol.  Up-to-date versions of these regulations can be found at: http://www.access.gpo.gov/bis/ear/ear_data.html  and http://www.access.gpo.gov

In addition to the U.S. export control policy for dual-use items, the Bureau of Industry and Security is also charged with the development, implementation and interpretation of the anti-boycott provisions of the Export Administration Act. The anti-boycott provisions encourage, and in some cases require, U.S. persons to refuse to participate in foreign boycotts that the United States does not sanction. U.S. persons are also required to report receipt of boycott-related requests.  http://www.bis.doc.gov/

Commerce Department - promotes, and develops the foreign and domestic commerce of the United States. To foster, serve, and promote the Nation’s economic development and technological advancement, the Department fulfills this mission by:

1. Participating with other Government agencies in the creation of national policy, through the President’s Cabinet and its subdivisions;
2. Promoting and assisting international trade;
3. Strengthening the international economic position of the United States;
4. Promoting progressive domestic business policies and growth;
5. Ensuring effective use and growth of the Nation’s scientific and technical resources;
6. Acquiring, analyzing, and disseminating information regarding the Nation and the economy to help achieve increased social and economic benefit; and
7. Assisting states, communities, and individuals with economic progress. 

For more information on this Department go to http://www.commerce.gov/

Commerce Control List (CCL) is a list of commodities (including test equipment and materials), technology and software controlled for export and re-export by the  Commerce Department because of their potential dual use or for other policy reasons. The CCL is located in the Export Administration Regulations at 15 CFR 774 (2005).

Summary List of Controlled Items:

Category 0	Nuclear Materials, Facilities and Equipment (and Miscellaneous Items)
Category 1	Materials, Chemicals, Microorganisms and Toxins
Category 2	Materials Processing
Category 3	Electronics Design, Development and Production
Category 4	Computers
Category 5	(Part 1) - Telecommunications - (Part 2) - Information Security
Category 6	Sensors and Lasers
Category 7	Navigation and Avionics
Category 8	Marine
Category 9	Propulsion Systems, Space Vehicles and Related Equipment

Commodity Jurisdiction Ruling is a decision made by the State Department regarding which agency will have jurisdiction over the export of an article covered by both the EAR and ITAR

Countries and Persons Subject to U.S. Sanctions or Embargoes are countries and persons, such as terrorist and narcotics traffickers, the United States imposes sanctions or embargoes against. To determine whether a country or person is subject to sanctions or embargoes, review the updated list of Sanctions Programs and Countries Summaries. This list is maintained by the U.S. Treasury Department’s Office of Foreign Assets Control (OFAC) or the U.S. Commerce Department’s Bureau of Industry and Security (BIS). 

Deemed Export is deemed to be an export:

• Releasing technology or source code software (other than encryption source code software) to a foreign national in the United States, other than a foreign national who qualifies as a U.S. person. CFR § 734.2(b)(2)(ii) (EAR).

Note also: Such release is deemed to be an export to the home country or countries of the foreign national. For foreign nationals with dual citizenship, the current policy is that the last citizenship governs for purposes of this deemed export rule.

• Transferring encryption software in the United States to a foreign embassy or an “affiliate” of a foreign country. CFR § 734.2(b)(9)(i)(B).
• Making certain encryption software available for transfer outside the United States over communications facilities accessible to persons outside the United States without taking precautions adequate to prevent unauthorized transfer. CFR § 734.2(b)(9)(ii), (iii).
• Disclosing or transferring technical data covered by the U.S. Munitions List to a foreign person. CFR § 120.17(a)(4).

Note: It makes no difference whether the technical data is disclosed orally, visually or in some other manner.

• Disclosing or transferring a defense article (including technical data) in the United States to a foreign embassy or a foreign government agency or subdivision. CFR § 120.17(a)(3).

Note: It makes no difference whether the defense article is disclosed orally, visually or in some other manner.

The term “deemed export” is included in the definition of “export” in the Commerce Department’s Export Administration Regulations (EAR). A similar concept is included in the definition of “export” in the State Department’s International Traffic in Arms Regulations (ITAR).

A “deemed export” does not occur if the recipient is a U.S. person.

Sources: 15 CFR § 734.2(b)(2)(ii), (3) (2005) (EAR); 22 CFR § 120.17(a)(4), (3) (2004) (ITAR).

Deemed Re-export is deemed to be a re-export:

• Releasing U.S.-origin technology or source code software to a foreign national outside the United States, other than a foreign national who is a citizen of or who is lawfully admitted for residence in the country in which the release occurs. CFR § 734.2(b)(4), (5).

Note: Technology or source code software is released for re-export through: (1) Visual inspection by foreign nationals of U.S.-origin equipment and facilities, (2) Oral exchanges of information, or (3) The application to situations abroad of personal knowledge or technical experience acquired in the United States. CFR § 734.2(b)(3), (5).

• Transferring U.S.-origin defense articles (including technical data) or defense services to “an end use, end user or destination not previously authorized.” CFR § 120.19.

Sources: 15 CFR § 734.2(b)(4), (5) (2005) (EAR); 22 CFR § 120.19 (2004) (ITAR).

Defense Article is any item or technical data on the U.S. Munitions List, which covers satellites and spacecraft as well as items specially designed, developed, configured, adapted or modified for a military application.  Defense articles include: (a) technical data recorded or stored in any physical form, (b) models, (c) mockups or (d) other items that reveal technical data directly relating to items on the U.S. Munitions List.  Defense articles do not include: (a) basic marketing information on function or purpose, or (b) general system descriptions of defense articles. 22 CFR § 120.6 (2004) (ITAR).

Defense SERVICE refers to:

• The 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 on the U.S. Munitions List; or
• The furnishing to foreign persons of any technical data on the U.S. Munitions List.

Educational Information EXCLUSION covers the following information:  

• Information that might otherwise be controlled by the U.S. Munitions List is excluded from export controls if it concerns general scientific, mathematical or engineering principles commonly taught in universities, colleges or schools. This type of educational information is treated differently from information in the “public domain.”

• All other information is excluded from export controls if it is released by instruction in catalog courses or associated teaching laboratories of universities and other academic institutions. This type of educational information is considered to be “publicly available.” 

Sources: 15 CFR §§ 734.3(b)(3)(iii), 734.9 (2005) (EAR); 22 CFR § 120.10(a)(5) (2004) (ITAR).

Exclusions from Export Controls are items in the United States subject to export controls unless one (or more) of the following exclusions applies:

• Educational Information Exclusion
• Fundamental Research Exclusion
• Informational Materials Exclusion
• Publicly Available or Public Domain Information Exclusion

EXPORT is any of the following:

• Sending, taking, shipping, transferring or transmitting technology, software, commodities or defense articles (including technical data) out of the United States. CFR § 734.2(b)(1), (9)(i)(A); ITAR § 120.17(a)(1);
• Releasing technology or software in a foreign country. CFR § 734.2(b);
• Releasing technology or source code software (other than encryption source code software) to a foreign national in the United States, other than a foreign national who qualifies as a U.S. person. CFR § 734.2(b)(2)(ii);

Note: Technology or source code software is released for export through: (1) Visual inspection by foreign nationals of U.S.-origin equipment and facilities, (2) Oral exchanges of information, or (3) The application to situations abroad of personal knowledge or technical experience acquired in the United States. CFR § 734.2(b)(3).

• Disclosing technical data covered by the U.S. Munitions List to a foreign person. CFR § 120.17(a)(4).

Note: It makes no difference whether the technical data is disclosed orally, visually or in some other manner.

• Transferring technical data covered by the U.S. Munitions List to a foreign person. CFR § 120.17(a)(4).
• Downloading or causing the downloading of certain encryption software to locations outside the United States. CFR § 734.2(b)(9)(ii).
• Making certain encryption software available for transfer outside the United States over communications facilities accessible to persons outside the United States without taking precautions adequate to prevent unauthorized transfer. CFR§ 734.2(b)(9)(ii), (iii).
• Transferring encryption software in the United States to a foreign embassy or an “affiliate” of a foreign country. CFR § 734.2(b)(9)(i)(B).
• Disclosing a defense article (including technical data) in the United States to a foreign embassy or a foreign government agency or subdivision. CFR § 120.17(a)(3).

Note: It makes no difference whether the defense article is disclosed orally, visually or in some other manner.

• Transferring a defense article (including technical data) in the United States to a foreign embassy or a foreign government agency or subdivision.CFR § 120.17(a)(3).
• Transferring registration, control or ownership to a foreign person of any aircraft, vessel or satellite covered by the U.S. Munitions List. CFR § 120.17(a)(2).
• Performing a defense service on behalf of a foreign person. CFR § 120.17(a)(5).
• Performing a defense service for the benefit of a foreign person. CFR § 120.17(a)(5).

Sources: 15 CFR. § 734.2(b) (2005) (EAR); 22 CFR § 120.17 (2004) (ITAR).

Export Administration Regulations (EAR) govern the export of all items in the United States or of U.S. origin, unless an exclusion from export controls applies or the items are exclusively controlled for export or re-export under other federal regulations.

Export Controls apply to transactions involving certain types of information, items or services, namely, those classified on the Commerce Control List or the U.S. Munitions List, if they are in the United States or of U.S. origin.

In addition, regardless of the type of information, item or service involved, export controls also apply to:

• Exports and re-exports involving foreign countries that are subject to U.S. sanctions or a U.S. embargo, nationals of such countries or persons designated under the sanctions or embargo;

Note: Review the list of Countries and Persons Subject to U.S. Sanctions or Embargoes to determine whether the country or person in question raises a potential issue that needs to be further analyzed. 

OFAC's Sanctions Program Country Summaries http://www.treas.gov/offices/enforcement/ofac/sanctions/ 

• Transactions involving certain individuals or entities, with whom transactions are prohibited;
• Transactions involving items that are ultimately to be used in certain nuclear, missile-related or chemical or biological weapons-related activities; and
• Activities by U.S. persons, including any person in the United States, involving the provision of technical assistance to a foreign person with the intent to aid in the development or manufacture outside the United States of certain encryption software.

Export controls apply not only to exports from the United States but also to re-exports of U.S.-origin items or services from one foreign country to another. See the definitions of Export and Re-export.

Export controls also apply to activities within a single country that are deemed to be exports or re-exports. See the definitions of Deemed Export and Deemed Re-export.

In addition, economic sanctions and embargoes regulating exports are, in effect, export controls. Review the list of Countries and Persons Subject to U.S. Economic Sanctions or Embargoes to determine whether a country or person involved in a proposed transaction would subject the transaction to these export controls.

Foreign NATIONAL is a foreign citizen, other than one who is:

• A U.S. citizen,
• A U.S. national, 
• A lawful permanent resident alien of the United States (i.e., a foreign national with a Green Card, a.k.a., a Permanent Resident Card), Lawfully admitted to the United States as a refugee,
• Granted asylum by the United States or
• Lawfully admitted to the United States as a special, temporary agricultural worker.

Foreign PERSON is any of the following:

A foreign national who is not:

• A lawful permanent resident alien of the United States (i.e., a foreign national with a Green Card, a.k.a., a Permanent Resident Card),  
• Lawfully admitted to the United States as a refugee,
• Granted asylum by the United States or
• Lawfully admitted to the United States as special, temporary agricultural worker; or any organization or entity not organized under any U.S. law.

Sources: 15 CFR § 772.1 (2005) (EAR) (def. of “U.S. person”); 22 CFR § 120.16 (2004) (ITAR) (def. of “foreign person”).

Fundamental RESEARCH is basic or applied research in science or engineering where the resulting information is ordinarily published and shared within the scientific community. 

·          “Fundamental research” is distinguished from proprietary or other research where the resulting information is restricted either for proprietary reasons or due to specific U.S. government controls governing access and dissemination of the research results.

University research does not qualify as “fundamental research” if:

• The University or researcher accepts any restrictions on the publication of the information resulting from the research, other than limited time for pre-publication reviews by research sponsors to prevent inadvertent divulging of proprietary information provided to the researcher by the sponsor or to insure that publication will not compromise patent rights of the sponsor; or
• The research is federally funded and specific access and dissemination controls regarding the resulting information have been accepted by the University or the researcher.

The fundamental research concept was established by National Security Decision Directive 189 (AAU site). PROVIDE A MORE COMPLETE CITATION TO SOURCE OF THIS INFO.

Sources: 15 CFR §§ 734.3(b)(3)(ii), 734.8(a), (b), 734.11 (2005) (EAR); 22 CFR § 120.11(a)(8) (2004) (ITAR).

Fundamental Research EXEMPTION includes the conduct of and information resulting from fundamental research.  This is generally EXCLUDED from U.S. export controls, including deemed export controls (i.e., disclosure of information to foreign nationals on U.S. soil) — in accordance with National Security Decision Directive 189 (AAU site).  Because fundamental research is not generally subject to deemed export controls, no export license or other authorization is needed to involve foreign nationals in fundamental research activity. The general rule does not, however, apply to fundamental research on encryption software.

Informational Materials EXCLUSION  includes the following:  

      Informational materials that might otherwise be considered technical data covered by the U.S. Munitions List are excluded from export controls if they fall within any of the following categories:

• Information in the public domain;
• Basic marketing information on function or purpose; or
• General system descriptions of defense articles.

All other informational materials are excluded from export controls if they fall within any of the following categories:

• Publicly available information;
• Pre-recorded phonograph records reproducing in whole or in part, the content of printed books, pamphlets, and miscellaneous publications, including newspapers and periodicals;
• Printed books, pamphlets, and miscellaneous publications including bound newspapers and periodicals;
• Children’s picture and painting books;
• Newspaper and periodicals, unbound, excluding waste;
• Music books;
• Sheet music;
• Calendars and calendar blocks, paper;
• Maps, hydrographical charts, atlases, gazetteers, globe covers and globes (terrestrial and celestial);
• Exposed and developed microfilm reproducing, in whole or in part, the content of any of the above;
• Exposed and developed motion picture film and soundtrack; or
• Advertising printed matter exclusively related thereto.

Note: Review the list of Countries and Persons Subject to U.S. Sanctions or Embargoes to determine whether the proposed transaction involves any such country or person.  OFAC's Sanctions Program Country Summaries http://www.treas.gov/offices/enforcement/ofac/sanctions/ 

International Traffic in Arms Regulations (ITAR) covers the export and re-export of defense articles (including satellites and spacecraft), technical data and defense services, unless an exclusion from export controls applies. 22 CFR  parts 120 to 130 (2004).   The State Department’s responsibility for the control of the permanent and temporary export and temporary import of defense articles and services is governed primarily by 22 U.S.C. 2778 of the Arms Export Control Act (AECA; see the AECA web page) and Executive Order 11958, as amended. https://www.pmdtc.org/itar_index.htm

National Security Defense Directive–189. is the Basic Rights in Data Clause:  “In contracts for basic or applied research with universities or colleges, no restrictions may be placed upon the conduct or reporting of the results of unclassified basic or applied research, except as provided in applicable U.S. Statutes.”  189 CFR 27.404  

OFFICE OF FOREIGN ACCESS CONTROL (OFAC) of the Treasury Department of administers and enforces economic and trade sanctions based on U.S. 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/index.shtml

Publicly Available or Public Domain INFORMATION (a.k.a. technology) or software) that is “publicly available” or that is in the “public domain” is generally EXCLUDED from U.S. export controls, including deemed export controls. Information resulting from fundamental research is considered to be both publicly available and in the public domain.  The term “publicly available” and “public domain” are not synonymous. “Publicly available” is the term used in the Export Administration Regulations, and “public domain” is the term used in the International Traffic in Arms Regulations. 

Information or software that might otherwise be considered technical data covered by the U.S. Munitions List is in the “public domain” if it is published and generally accessible or available to the public through any of the following ways:

• Through sales at newsstands or bookstores;
• Through subscriptions 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 public libraries or libraries 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., not necessarily in published form) after approval by the cognizant U.S. government department or agency; or
• Through fundamental research in science or engineering at accredited institutions of higher learning in the United States where the resulting information is ordinarily published and shared broadly in the scientific community.

All other information or software (other than certain encryption software) is “publicly available” if it falls within any one of the following categories:

• Information or software that is or will be “published”;

Note: Information is published when it becomes generally accessible to the interested public in any form, including (a) when it is released at an open conference, seminar or meeting that all technically qualified members of the public are eligible to attend and at which attendees are permitted to take notes or otherwise make a personal record of the proceedings and presentations, (b) when it is readily available at a public or university library or (c) when it is in a patent or open patent application available at any patent office. Note also: Information is also considered published when it is available for general distribution either for free or at a price that does not exceed the cost of reproduction or distribution. This rule also applies to software.

• Information that arises during or results from fundamental research;
• Educational information; or
• Information in certain patent applications, such as a patent application being sent to a foreign country to obtain the signature of a person who is a co-inventor with a person residing in the United States.

Important Notice: Even if a transaction involves only information or software that is “publicly available” or in the “public domain,” it would, nevertheless, be subject to U.S. export controls if it involved the provision of a defense service.  Sources: 15 CFR §§ 734.3(b)(3), 734.7 to 734.11 and pt. 734, Supp. No. 1 (2005) (EAR); 22 CFR § 120.11 (2004) (ITAR).

Technical Data (ITAR Term) is a defense article covered by the U.S. Munitions List. Technical data means:

• Information required for the design, development, production, manufacture, assembly, operation, repair, testing, maintenance or modification of a defense article;

Note: Such information may take forms such as blueprints, drawings, photographs, plans, instructions or documentation.

• Software directly related to a defense article;
• Information covered by an invention secrecy order; or
• Classified information relating to a defense article or defense service.

“Technical data” does not include: (a) information in the public domain, (b) information concerning general scientific, mathematical or engineering principles commonly taught in schools, colleges and universities, (c) basic marketing information on function or purpose or (d) general system descriptions of defense articles.

Sources:  22 CFR §§ 120.10(a)(1), (4), 120.10(a)(5), 120.6 (2004) (ITAR).

Third-Party Involvement in Fundamental Research may give rise to export control issues if it requires exposure of foreign nationals to information or items that are provided by a third party, such as a vendor, research partner or government collaborator, and that is disclosure restricted. Even though fundamental research may proceed openly and the results may be shared freely with foreign nationals in the U.S. without concern for deemed export controls, it does not follow that disclosure-restricted information or items provided by a third party may be openly shared with foreign nationals. It makes no difference whether those individuals are important contributors to the fundamental research. For example, a vendor or research partner may have to disclose the heat and vibration tolerances for export-controlled hardware being provided for use in carrying out a fundamental research experiment. Information about export-controlled equipment may itself be export controlled. If so, that information carries with it export control requirements that must be honored by the researcher who agrees to receive such information. 

U.S. Munitions LIST  is a list of defense articles (including satellites and spacecraft), technical data and defense services controlled for export and re-export by the U.S. State Department. The U.S. Munitions List is located in the International Traffic in Arms Regulations at 22 CFR § 121.1 (2004).

For an overview of the type of items and defense services covered by the U.S. Munitions List, review the Summary List of Controlled Items shown above under Commerce Control List or at http://fas.org/spp/starwars/offdocs/itar/p121.htm

U.S. Person is any of the following:

• A U.S. citizen;
• A foreign national who is:
  • A lawful permanent resident alien of the United States (i.e., a foreign national with a Green Card, a.k.a., a Permanent Resident Card), Lawfully admitted to the United States as a refugee,
  • Granted asylum by the United States or
  • Lawfully admitted to the United States as a special, temporary agricultural worker; or
• Any organization or entity organized under any U.S. law, including universities.

Sources: 15 CFR § 772.1 (2005) (EAR) (def. of “U.S. person”); 22 CFR § 120.15 (2004) (ITAR) (def. of “U.S. person”).

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III. EMBARGOED COUNTRY LIST

Below is a list of countries subject to U.S. sanctions or embargoes maintained by the Treasury Department’s Office of Foreign Assets Control (OFAC) or the Commerce Department’s Bureau of Industry and Security (BIS) as of August 2006. Included are notes about the nature of the sanctions or embargoes and the U.S. government agency that maintains them.
 

Afghanistan (Embargoed)	Denies licenses, other approvals, exports and defense services, defense articles.
Balkans  (Sanctioned)	Prohibition on engaging in transactions with designated persons who threaten international stabilization efforts in the Balkans (OFAC).
Belarus  (Embargoed)	Denies licenses, other approvals, exports and defense services, defense articles.
Burma (Sanctioned/Embargoed)	Prohibition on engaging in transactions with designated nationals of Burma; Prohibition on engaging in exporting financial services and importing Burmese products (OFAC)
China (Embargoed)	Arms Embargoed Country An export license is required for commercial goods, services, or technology intended for China for reasons of: chemical and biological weapons proliferation, nuclear proliferation, national security, missile technology, regional stability, and crime control.
Cote d’Ivoire (Ivory Coast) (Sanctioned/Embargoed)	Prohibition of all licenses and other approvals to export or otherwise transfer defense articles and defense services
Cuba (Sanctioned/Embargoed)	Comprehensive sanctions, including deemed export controls (OFAC & BIS); Diamond Traders Sanctions against importers and exporters of rough diamonds (OFAC). Denies licenses, other approvals, exports and defense services, defense articles.
Cyprus (Sanctioned)	Denies licenses, other approvals, exports and defense services, defense articles destined for or originating except to UN Forces.
Democratic Republic of the Congo(Embargoed)	Arms Embargoed Country Denies licenses, other approvals, exports and defense services, defense articles.
Eritrea (Embargoed)	Denies licenses, other approvals, exports and defense services, defense articles.
Haiti (Embargoed)	·Denies licenses, other approvals, exports and defense services, defense articles.
Iran (Sanctioned/Embargoed)	Comprehensive sanctions (OFAC & BIS) Denies licenses, other approvals, exports and defense services, defense articles.
Iraq  (Sanctioned/Embargoed)	Prohibition on engaging in transactions with designated persons associated with former Iraqi regime; Prohibition on engaging in transactions involving certain Iraqi cultural property (OFAC) Denies licenses, other approvals, exports and defense services, defense articles.
Liberia   (Sanctioned/Embargoed)	Prohibition on engaging in transactions with designated persons associated with former Liberian regime; Prohibition on importing Liberian logs or timber products (OFAC); Narcotics Traffickers Prohibition on engaging in transactions with designated narcotics traffickers (OFAC) Nonproliferation Sanctions Prohibition on engaging in transactions with persons designated as weapons of mass destruction proliferators or supporters; Prohibition on importing products produced or provided by persons subject to nonproliferation sanctions (OFAC)
Libya (Sanctioned/Embargoed)	Denies licenses, other approvals, exports and defense services, defense articles.
North Korea (Sanctioned/Embargoed)	Prohibition on importing products from North Korea; Prohibitions on receiving certain transfers from the North Korean government; including donations (OFAC) Denies licenses, other approvals, exports and defense services, defense articles.
Palestinian Authority	Sanctioned
Rwanda (Embargoed)	Arms embargoed (BIS) Denies licenses, other approvals, exports and defense services, defense articles.
Somalia (Embargoed)	Denies licenses, other approvals, exports and defense services, defense articles. Arms embargoed (BIS)
Sudan (Sanctioned/Embargoed)	Comprehensive embargo (OFAC) Denies licenses, other approvals, exports and defense services, defense articles.
Syria (Sanctioned/Embargoed)	Comprehensive export and re-export sanctions, including deemed export controls (BIS); Prohibitions on engaging in transactions with designated nationals of Syria and receiving certain transfers from the Syrian government, including donations (OFAC); Prohibition on engaging in transactions with designated terrorists or terrorist organizations (OFAC & BIS).
Venezuela (Sanctioned October, 2006)	Sanctioned as of October 1st, 2006
Vietnam  (Embargoed)	Denies licenses, other approvals, exports and defense services, defense articles.
Yemen (Embargoed)	Denies licenses, other approvals, exports and defense services, defense articles.
Zimbabwe (Sanction/Embargoed)	Prohibition on engaging in transactions with designated persons who undermine democratic processes or institutions in Zimbabwe (OFAC).

NOTE: The list of countries and persons subject to sanctions or embargoes changes from time to time. Additional information and changes about the OFAC sanctions or embargoes is contained in OFAC's Sanctions Program Country Summaries.

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IV. MISSOURI STATE UNIVERSITY POLICY

It is the policy of Missouri State University that, absent extraordinary circumstances, teaching, research, and service will be accomplished openly and without prohibitions or restrictions on the publication and dissemination of the results of academic and research activities.  However, certain federal regulations may require the University to obtain licenses from the U.S. Departments of State, Commerce, or Treasury before allowing foreign nationals to access research involving specific technologies or before sharing research information with persons who are not citizens of the United States or permanent resident aliens. 

It is the policy of Missouri State University to pursue teaching, research, and service in a manner that is consistent with the applicable Export Control regulations while making reasonable efforts to maximize the situations in which the University may claim the benefit of the public domain or fundamental research exclusion to the regulations. 

The Board of Governors has delegated responsibility for assuring the University acts in compliance with Federal Export Control Regulations to the President.  The President has delegated authority to implement and enforce this policy to the Institutional Official for Export Control. 

Responsibilities of the Institutional Official shall include:

• Assuring that University personnel are aware of and comply with the Export Control Regulations;

• Establishing and implementing a Standard Operating Procedure for identifying University activities that are within the purview of the Export Control Regulations;

• Determining the validity of allegations of violations of these regulations and University policy;

• Reporting violations of these regulations to the appropriate federal offices;

• Directing the application for licenses as needed to enable allowable access by foreign nationals to export control materials, or for shipping of such materials to foreign countries;

• Submitting reports as required under these regulations.

The Institutional Official also has designated the Associate Director of the Office of Sponsored Research and Programs as the Compliance Officer responsible for assisting the Institutional Official in assuring compliance with the Export Control regulations and the University policy and Standard Operating Procedures:

Responsibilities of the Compliance Officer include:

• Assisting the Institutional Official in implementing the Standard Operating Procedure;
• At the request of the Institutional Official, investigating allegations of violations of Export Control regulations and the University policy;
• Assisting the Principal Investigators (PIs) in review of current and planned projects to determine the applicability of these regulations;
• Determining with a PI whether the technology or other material to be used in a research project is included on the Commerce Control List (CCL) or the U.S. Munitions List and, if applicable, initiating the application for a license.
• Coordinating the investigation of alleged violations, and presenting results to the Institutional Official;
• Maintaining a centralized database of projects within the University’s responsibility that fall within the purview of EC regulations;
• Conducting an annual review of projects that fall within the purview of  EC regulations and reporting results to the Institutional Official;  
• Preparing reports as required under these regulations;
• Maintaining awareness of and disseminating current information on Export Control Regulations and this policy throughout the University community; and
• Reviewing of research agreements and contracts for export control language and for terms or provisions that restrict accessibility or prohibit publication of research results, limit the participation of foreign nationals on the research or otherwise render the fundamental research exclusion inapplicable.

The Office of General Counsel (OGC) is responsible for providing assistance to the University with regard to legal interpretation of the regulations as related to University activities.

The Office of Human Resources responsibilities include assuring that information provided by PIs regarding applicability of Export Control regulations are incorporated into announcements for hiring personnel. 

Faculty and professional staff who serve as a Principal Investigator (PI) on projects involving University personnel, facilities and other resources are responsible for

• Identifying the potential applicability Export Control Regulations to current and planned projects;

• If found to be applicable, identifying all personnel involved or to be involved in the project, including names and country of origin;

• Assuring that information about EC regulations, where applicable, are included in announcements for hiring of personnel who would be involved in covered projects;

• Assuring that access to and distribution of technologies and information related to EC covered projects are restricted to those persons and destinations that are not subject to these regulations;

• Understanding that acquiring a license for actions required by EC regulations may take 4 to 6 months; and 

• Reporting any suspected violations of these regulations to the Institutional Official or OSRP.

Suspected violations of the Export Control Regulations and this policy will be reported to the Institutional Official.  Results of an investigation will be reviewed with the input from the OGC and the Provost.    

 Actions to be taken in cases of documented or validated violations of Export Control Regulations include:

• Reporting validated violations to the applicable federal agency;

• Cooperating in the imposition of penalties as directed by federal agencies; and

• Sanctions to be determined based on the Faculty, Employees or student status.

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V. STANDARD Operating Procedures

The following standard operating procedures have been developed to enable the Administration, Principal Investigators (PIs) and other persons engaged in research at the University to fully comply with Export Control (EC) regulations promulgated by the US Department of Commerce, through its Export Administration Regulations (EAR), the US Department of State through its International Traffic in Arms Regulations (ITAR) as well the US Treasury Department through its Office of Foreign Assets Control (OFAC).

Principal Investigator’s responsibilities:

1. PI’s will cooperate with the Office of Sponsored Research and Programs (OSRP) in determining the applicability of EC regulations to research before starting any projects.  The PI’s will provide a description of the project, proposed personnel, and whether there is to be involvement of any foreign national or exchange of technologies or information with a foreign country.   

2. The PI will notify OSRP of any changes in the scope or staffing of research projects that could alter initial determinations about the applicability of EC regulations;

3. The PI will notify OSRP well in advance of sending scientific equipment or information including GPS equipment and encrypted software out of the country in order to determine if a license is required;

4. The PI will send all proposed Nondisclosure Agreements, Material Transfer Agreement, grants or contracts (hereafter referred to as “Agreements”) to OSRP for review and modification of any provisions that could eliminate exclusions from EC regulations.

5. The PI will contact OSRP before engaging in research activities with persons in or from foreign countries that are named on the Embargoed or Sanctioned Country List of the State Department  or the Office of Foreign Access Control or the .  As of August 2006, this includes: Afghanistan, Balkans, Belarus, Burma, China, Cote D’Ivoire (Ivory Coast), Cuba, Cyprus, Democratic Republic of the Congo, Eritrea, Haiti, Iran, Iraq, Liberia, Libya, North Korea, Rwanda, Somalia, Sudan, Syria, Vietnam, Yemen, Zimbabwe;

6. If it is known that a research proposal or any Agreements may or will require shipping scientific equipment out of the country or transmitting technology or information to foreign persons abroad, the PI shall submit this information along with the relevant documents to OSRP.

Office of Sponsored Research and Programs (OSRP):

1. The Associate Director shall be designated as the University Compliance Officer and be the lead person for assisting the Institutional Official in implementation of the  University’s EC policy.  

2. The Compliance Officer shall review proposed (Confidentially) Nondisclosure Agreements ((NDA), Material Transfer Agreements (MTA), grants and contracts (hereinafter designated as “Agreements”) for provisions that restrict access to or publication of research and technical data, limit the participation of foreign nationals in the research effort, or otherwise render inapplicable the exclusions and exemptions from the EC regulations.  The results of such review will be recorded on an Export Control Review report signed by the Compliance Officer and transmitted to the Institutional Official. (Record of Export Control Review).
3. No export license will be required as a condition of releasing research results or granting foreign nationals access to the research if the project qualifies under the Fundamental Research Exclusion or Public Domain Exemption.
4. If the results of such review indicate that an exemption from the EC regulations may not be available, OSRP will forward the Export Control Review report and supporting documentation to the Office of General Counsel.  The Office of General Counsel will confirm the review of OSRP and forward these findings to the Institutional Official for review and action, as appropriate. 
5. The Institutional Official will meet with the PI to determine if adjustments can be made to address issues which resulted in the conclusion that the research project falls under the EC regulations.
6. The Compliance Officer and General Counsel will review revised documents and make the necessary recommendations to the Institutional Official who will make a final determination as to the applicability of EC regulations. 
7. The PI will receive written notice of the Institutional Official’s determination and will cooperate with the OSRP in taking the directed actions, e.g., further modification to the proposed project or seeking a license from the relevant federal agency.    Copies of this determination shall be provided to the PIs department head (or center director), dean and the Vice President for Research and Economic Development.  All export control decisions will be documented and kept on file by OSRP.
8. In situations where a technology is arguably covered by both the EAR and ITAR, the University will submit a Commodity Jurisdiction Request to the Office of Defense Trade Controls to receive guidance as to whether Commerce or State has jurisdiction. The PI will sign the Certification on the Handling of Export-Controlled Information and Acknowledgement of Briefing form.
9. If an Agreement falls under the terms of the EC regulations, the PI and OSRP, with assistance of the Office of General Counsel as needed, will contact the research sponsor to negotiate modification of the provisions that impact the University’s exemption from EC regulations.  If this negotiation does not result in elimination of conditions that negate exclusions/exemptions from the EC regulations,   the matter will be referred to the Institutional Official to determine if the University will apply for an export control license, conduct the research under EC restrictions, or abandon the research effort due to the possible burdens or restrictions associated with compliance.

10. OSRP, on behalf of the Associate Provost, will conduct an Annual Review and Certification with the assistance of PIs engaged in EC-related research and licenses to determine if any aspect of the project has changed necessitating further action to assure compliance.  If no changes are found, a notice to that effect will be filed with the Institutional Official with a copy to the PI, department head (or center director), dean, Institutional Official and the Vice President for Research and Economic Development. 

Institutional Official:

The Institutional Official is responsible for assuring compliance with the federal EC regulations, and for overseeing the implementation of the Policy and SOP

The Standard Operating Procedure is intended to promote understanding of the regulations to enable compliance by all persons involved in research and related activities within the University’s responsibility.  Questions whether EC regulations apply to specific research should be referred to the Compliance Officer in the OSRP office (CARR 407) or at 6-5972.   

FORMS

 

 

 

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VI. Frequently Asked Questions

1.      What is an export? 

The Export Control (EC) Regulations define an export as:

• Any oral, written, electronic or visual disclosure, shipment, transfer or transmission outside the United States to anyone, including a U.S. citizen, or 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); and
• Any transfer of these items or information to a foreign embassy or affiliate.

2.      Who controls exports?

There are two agencies that control exports:

• The 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 1.
• The 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 controlled technologies, see 22 CFR 121.1

3.      What is considered Fundamental Research?

1. Fundamental research, as used in the Export Control Regulations, includes basic or applied research in science and/or engineering projects 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 other forms of research and/or engineering projects which produce results that are 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:
2. The University or research institution 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 a sponsor or to insure that publication will not compromise patent rights of the sponsor; or
3. The research is federally funded and specific access and dissemination controls regarding the resulting information have been accepted by University or researcher.

Note: 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.

4.      What is considered Published Information as used in question #3?

The EAR and the 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 “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 the material in a scientific or engineering discipline. Published or ordinarily published material also include the following:

1. Available at libraries open to the public;
2. Patents;
3. Open conference, meeting, or 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 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 that is generally accessible or available to the public” through a variety of mechanisms. Publicly available software or technology is that which is already, 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.

Public Domain is defined in the ITAR (22 CFR 120.11) as information that is “published and 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.

The EAR definition of Public Domain is located at http://www.access.gpo.gov/nara/cfr/waisidx_01/15cfr734_01.html.

6.      What is the purpose of the Export Administration Regulations (EAR)?

The primary focus of the EAR is to control the export of dual use technologies i.e., items that are used, or have the potential to be used, for military as well as non-military purposes if such export could adversely affect the national interests of the United States.

7.      What types of dual use technologies are subject to EAR?

Items subject to the EAR are listed on the Commerce Control List (CCL). This is a very long list broken down into nine broad categories.

Category 0	Nuclear Materials, Facilities and Equipment (and Miscellaneous Items)
Category 1	Materials, Chemicals, Microorganisms and Toxins
Category 2	Materials Processing
Category 3	Electronics Design, Development and Production
Category 4	Computers
Category 5	(Part 1) - Telecommunications - (Part 2) - Information Security
Category 6	Sensors and Lasers
Category 7	Navigation and Avionics
Category 8	Marine
Category 9	Propulsion Systems, Space Vehicles and Related Equipment

8. What is the purpose of the International Traffic in Arms Regulations (ITAR)?

ITAR places strict controls on the export of “defense articles” and “defense services.” Defense articles include any item or technical data on the United States Munitions List (USML), and defense services include the furnishing of assistance to foreign persons, whether or not in the United States, with respect to defense articles, and the furnishing of any technical data associated with a defense article.

9. What is on the US Munitions List (USML)?

The following categories of defense articles and services are included on the USML:

1. Firearms
2. Artillery projectors and armaments
3. Ammunition
4. Launch vehicles, guided missiles, ballistic missiles, rockets, torpedoes, bombs, and mines
5. Explosives, propellants, incendiary agents, and their constituents
6. Vessels of war and special naval equipment
7. Tanks and military vehicles
8. Aircraft and associated equipment
9. Military training equipment
10. Protective personnel equipment
11. Military electronics
12. Fire control, range finder, optical and guidance and control equipment
13. Auxiliary military equipment
14. Toxicological agents and associated equipment
15. Spacecraft systems and associated equipment
16. Nuclear weapons, design, and testing equipment
17. Classified articles, technical data and defense services not otherwise enumerated
18. Directed energy weapons
19. Submersible vessels, oceanographic and associated equipment
20. Miscellaneous articles not listed above with substantial military applicability and which were designed or modified for military purposes.

10. If a license is needed, what is the process at Missouri State University?

Contact the Compliance Officer in OSRP (6-5972) to arrange for appropriate support both 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 can take months to secure a license to export controlled materials from the U.S. or to transmit them to a non U.S. citizen or resident status within the U.S. 

11.  Are there other regulations to consider?

Yes, under some circumstances. Different rules govern the export (including downloading to electronic bulletin boards or websites, or otherwise making available for transfer outside the United States) of certain encryption software under the EAR. Other rules apply to protection of classified information and to the exporting of commodities and technology relating to nuclear reactor vessels and to special nuclear materials.

12.  How should an employee handle the use of information gained from past or present research in classroom discussions if foreign nationals are present?

The employee should first ascertain the source of the information and if the contract or grant under which it was discovered, invented or obtained is under export control restrictions. Lack of contractual designation of “export controlled” is not an exclusively sufficient determination. The employee also should make a self-determination of the applicability of EC regulations to the particular information or technology he/she wishes to discuss in the classroom. If this information or technology should be considered export controlled, it should not be presented in the classroom.

13.  What is the guidance for determining if non-sponsored program activity should be export controlled?

An employee should check the Department of State’s U.S. Munitions List and the Department of Commerce’s Commerce Control List to ascertain if the information or technology falls under the information or technology areas. As this research would not be under a sponsored program, the fundamental research exemption would not apply.

14.  Are individuals with dual citizenship (one of which is U.S.) allowed unlicensed access to export controlled information?

Some funding agencies regard the non-U.S. citizenship as the primary citizenship status. If there is any doubt, check with your funding agency and with OSRP.

15.  I teach a class which involves information about encryption using standard published textbooks. Do I have a problem if foreign nationals are in my class?

If you are providing information which is already in the public domain (e.g., published text books, excerpts from professional journals, newspaper articles, etc.), it is not covered by the EC regulations. 

16.  Can we send documents that contain export controlled information to Quick Copy for reproduction if Foreign Nationals are employed there?

No, this would be a “deemed export” and would violate the EC regulations.

17.  What are the practices that I should employ for protecting export controlled information?

• Laboratory work should be physically shielded from observation by operating in secured laboratory spaces or during secure time blocks when observation by unauthorized persons is preventable.
• Data, lab notebooks, hard copy reports, and research materials are to be held in locked, fireproof cabinets which are located in rooms with key-controlled access.
• Electronic communications and all databases are to be managed via a type of virtual private network specifically a Secure Socket layer (SSL), which limits access to authorized users only and facilitates exchanges between those authorized users while encrypting (128 bit encryption) any data sent via Internet.
• Discussions about the project or work products are to be limited to the identified contributing investigators and are held only in areas where unauthorized persons are not present.
• Discussions with subcontractors, such as identified manufacturing sites, are only to be conducted under signed (Confidentiality) Non Disclosure Agreements that fully comply with the non-US citizen limitations for such disclosures as described in the EC regulations.
• Third-party communications are conducted only under valid (Confidentiality) Non-Disclosure Agreements with prior consent of the Government.

18.  Some of these requirements will result in expenses that I didn’t request in my proposal because I didn’t know that this would be export controlled. How do I handle this?

Check first with your Department or Dean  to see if they can provide the funds for the separate computer, special storage facilities, separate work space, etc. It may be necessary for you to bring the matter to the designated Institutional Official for Export Control. The information or technology must be protected; this is not an option.

19.  Some of this information is vague and seems to change a lot. How am I supposed to keep up with all of this?

This law and its supporting regulations are complicated and the international political, military and economic situation changes daily. This is, in turn, reflected in the information and technology which is placed on the controlled lists as well as the various funding agencies’ procedures in addressing the export control issue. Our best advice is to revisit your information and technology periodically relative to the government’s controlled lists, keep an open dialogue with your funding agency technical counterpart, and bring your questions and concerns to OSRP or the Institutional Official. 

20.  My award has no restriction on foreign nationals working on it and no publication restrictions except the funding agency wants to review a publication prior to distribution. Does this cancel my fundamental research exemption?

No, this kind of review, even when requested, is considered a courtesy rather than a restriction. If the award required “review and approval” it would be considered as a restriction as this language implies the potential of denying approval to publish or requiring changes to the report, presentation or article prior to publication. A publication approval requirement would cancel fundamental research exemption.

21.  I download software that I use in my classes and usually just click “yes” without reading the license agreement. I’ve heard that some of these licenses have export control restrictions. What should I do?

First, read all license agreements because clicking “yes” is agreeing to the conditions of the agreement. Second, notice if there are options concerning the type of software you can download. Most license agreements do contain some export control language. In many instances, there is an “educational” version of the software which does not contain export controlled information and is suitable for classroom use.

22.  I have heard that Microsoft operating software is or may be export controlled. I’ve already been warned about not taking my laptop out of the country if it has obvious export controlled data on it but, can I have a problem with the basic operating software?

Possibly. Microsoft provides information under their general home page http://www.microsoft.com/security/default.mspx (at the home page, search on “export control”) listings of their different software products along with the Department of Commerce’s ECCN (export control classification number)

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VII. Additional Information on Export Regulations

COMPUTER SOFTWARE EXPORT RULES:

The export regulations have a number of special rules for computer software. Other software might be controlled because it relates to the design process, operation, maintenance or other activities.

Each category of technology in the EAR Commerce Control List (CCL) has a special subcategory for computer software, with specific rules. The EAR also has special rules for mass-market software. In addition, the EAR has extensive rules for software (specifically “encryption software”) that performs security functions or uses such functions performed by other software or equipment.

EXPORT CONTROLLED FUNCTION: 

Export Control (EC) regulations control certain services (e.g., “defense services” under ITAR), even if all of the information used or transferred in association with the services is publicly available and not otherwise controlled under the regulations. Controlled services may assist military or space activities, assist with encryption commodities or software, or assist embargoed countries.

EXCLUSIONS AND EXEMPTIONS UNDER THE EXPORT RULE:

Publicly available information is excluded from export regulations under both EAR and ITAR. Even though the information itself may not be subject to export control, the activity for which it is used may still be controlled — such as a defense service under ITAR or a service to an embargoed country under EAR

These exclusions apply only to research results.  They do not apply to controlled equipment and/or services, such as training foreign nationals inside or outside the U.S. on defense articles.  A PI could have a contract that places no restriction on publishing research results or access to the project but requires a license for the PI to send controlled equipment to a foreign collaborator.

ITAR Exemptions:

Under ITAR, the exclusion for publicly available information is made indirectly, by specifying that such information is not included in the definition of “technical data,” as that term is used with regard to the controls under ITAR. ITAR references publicly available information as being “public domain.” The term “public domain” under ITAR does not mean dedicated to the public, which is the definition under intellectual property law. Under the EAR, the exclusion for publicly available information is more directly and expressly made.

Under ITAR, public domain means information which is published and which is generally accessible or available to the public:

University research will not be considered fundamental research if:

1. The University or its researchers accept  restrictions on publication of scientific and technical information resulting from the project or activity; or
2. The research is funded by the U.S. Government and specific access and dissemination controls protecting information resulting from the research are applicable.

ITAR Employee Exemption:

ITAR specifically exempts foreign persons who are bona fide and full-time regular employees from the requirement of a license for disclosures of unclassified technical data in the U.S by U.S. institutions of higher learning. This exemption is available only if:

1. The employee’s permanent residence throughout the period of employment is in the United States;
2. The employee is not a national of a country to which exports are prohibited pursuant to Sec. 126.1 of ITAR; and
3. The institution informs the individual in writing that the technical data may not be transferred to other foreign persons without the prior written approval of the Department of State. See Export Control Nondisclosure Statement form ( PDF, 28 KB).

Determinations on whether a foreign national qualifies for this exemption must be done on an individual basis by the Office of Human Resources with the assistance of the Compliance Officer.  Qualified individuals must sign the Certification on the Handling of Export-Controlled Information ( PDF, 20 KB) to document that the technical data that he/she receives may not be transferred to other foreign persons without the prior written approval of the Directorate of Trade Defense Controls [22CFR 25.4(b)(10)].

Further, ITAR includes an exemption from the licensing requirement for certain items and defense services for space applications by accredited U.S. institutions of higher learning when the items or services are for fundamental research and are for organizations in certain countries. 

EAR Exemptions:

The following items are not subject to the EAR:

1.  Items that are exclusively controlled for export or re-export by departments or agencies of the U.S. Government other than Commerce, State and Treasury;
2.  Prerecorded phonograph records reproducing, in whole or in part, the content of printed books, pamphlets, and miscellaneous publications, including newspapers and periodicals; printed books, pamphlets, and miscellaneous publications including bound newspapers and periodicals; children’s picture and painting books; newspapers and periodicals, unbound, excluding waste; music books; sheet music; calendars and calendar blocks, paper; maps, hydrographical charts, atlases, gazetteers, globe covers, and globes (terrestrial and celestial); exposed and developed microfilm reproducing, in whole or in part, the content of any of the above; exposed and developed motion picture film and soundtrack; and advertising printed matter exclusively related thereto.
3. Publicly available technology and software, except certain encryption software, that:

• are already published or will be published as generally accessible to the interested general public in any form, including

            -- in periodicals, books, etc;
            -- availability at libraries;
            -- in patents and published patent applications;
            -- released at an open conference, meeting, seminar, trade show, or other open gathering; or
            -- submissions of papers to domestic or foreign editors or reviewers of journals or to organizers of  open conferences with the under­standing that the papers will be made publicly available if favorably received;

• arise during or result from fundamental research;

• are educational information released by instruction in catalog courses and associated teaching laboratories of academic
• institutions; or    

• are included in certain patent applications.

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Controls Policy Document (in Word or PDF file)

Policy on U.S. Export Control Laws (MS Word)

Policy on U.S. Export Control Laws ( PDF)

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