Export Controls: Regulations and Regulated Activities
Export controls are targeted toward the transfer, sharing, or physical export of materials, technology, equipment, and information to foreign countries or individuals who are not U.S. citizens or permanent residents. There are two general areas of concern to the federal government: A) that certain technical information or property that may have some military use or otherwise have national security implications not be shared with any other countries; and B) that certain kinds of information or tangible goods not be shared with certain foreign countries. The federal agencies responsible for these regulations maintain lists of the types of items that are restricted in general as well as a list of the countries under a specific boycott or embargo (see Export Controls Screening Lists for more information).
Several federal agencies administer overlapping sets of regulations in this area. For example, two key sets of regulations that deal with the sharing of certain information or property to foreign individuals in general are the International Traffic in Arms Regulations (ITAR) and the Export Administration Regulations (EAR). These regulations are mainly concerned with items that may have national security implications, as defined in the regulations.
In addition to the EAR and ITAR, the Department of Treasury's Office of Foreign Assets Control (OFAC) administers and enforces economic and trade sanctions based on US foreign policy and national security goals against targeted foreign countries, terrorists, international narcotics traffickers, and those engaged in activities related to the proliferation of weapons of mass destruction. The scope of the boycott program depends on the country involved and is subject to change.
International Traffic in Arms Regulations (ITAR)
The International Traffic in Arms Regulations (ITAR), 22 CFR §§120-130, are administered by the US Department of State. They regulate the export of defense articles, defense services, and related technical data ("defense" meaning that the government has determined the article, service, or data to be inherently military in nature). The list of ITAR-controlled items is published at 22 CFR §121, as the United States Munitions List or USML.
The USML covers 21 categories (including chemical and biological agents in addition to various weapons, vehicles, missiles, equipment, and electronics). Again, the items on the list have been determined by the Department of State to be inherently military in nature (basically, items designed to kill or defend against death in a military context). Also, although they may not meet this definition, all satellites and related technology are controlled by ITAR as a result of the 1999 Congressional expansion of ITAR jurisdiction. Unless a specific exclusion or exemption applies, licenses are required for the export of an USML-listed item.
Export Administration Regulations (EAR)
The Export Administration Regulations (EAR), 15 CFR §§730-774 are administered by the US Department of Commerce and can be found at https://www.bis.doc.gov/index.php/regulations/export-administration-regulations-ear. Among other things, they regulate the export of so-called "dual use" items, i.e., goods and related technology designed for commercial purposes but which could have military applications, such as computers, aircraft, and pathogens. The list of EAR-controlled items (the "Commerce Control List" or "CCL") is published at 15 CFR §774, Supplement 1 (https://www.bis.doc.gov/index.php/documents/regulations-docs/2345-774-10-24-18/file (PDF). An alphabetical list of CCL items is available at https://www.bis.doc.gov/index.php/documents/regulations-docs/2329-commerce-control-list-index-3/file (PDF).
The CCL categorizes covered items into the following ten categories (which each have subdivisions):
1) Nuclear materials, Facilities and Equipment, and Miscellaneous
2) Materials, Chemicals, Microorganisms, and Toxins
3) Materials Processing
6) Telecommunications and Information Security
7) Lasers and Sensors
8) Navigation and Avionics
10) Propulsion Systems, Space Vehicles, and Related Equipment
For goods and technology listed on the CCL, a license will be required for export, unless an exclusion or exemption applies. Where embargoed countries are involved (presently Cuba, Iran, Iraq, Libya, North Korea, Sudan, and Syria), a license will be denied.
There is an additional "catch-all" category in the regulations, the "EAR 99," which covers any good or technology that is "subject to the EAR" as defined in 15 CFR §734.3(a) (PDF) but is not on the CCL. Items in the EAR 99 category may or may not require a license, depending on the country involved and individual(s) to whom the export will be made.
Office of Foreign Assets Control (OFAC)
The Department of Treasury's Office of Foreign Assets Control (OFAC) administers and enforces economic and trade sanctions based on US foreign policy and national security goals against targeted foreign countries, terrorists, international narcotics traffickers, and those engaged in activities related to the proliferation of weapons of mass destruction. The scope of the boycott program depends on the country involved and is subject to change. The complete and updated list of countries included in the boycott program may be viewed at https://www.treasury.gov/resource-center/sanctions/Programs/Pages/Programs.aspx.
There are many activities in which a university engages that potentially could trigger export control requirements, including:
- hiring and paying wages or other compensation to faculty, staff, and students;
- retaining, entering into contracts with, or paying contractors and consultants;
- awarding or paying financial aid or scholarships;
- arranging for speakers and visitors and paying honoraria and travel reimbursements;
- entering into housing, student, or other loans to faculty, students, or others;
- opening a university debit card (as is often the case for employees) or credit card (as is often the case for students);
- entering into a research collaboration agreement or subcontract;
- planning or participating in a conference where foreign colleagues or students may be present;
- conducting a survey in another country;
- entering into a technology transfer agreement; and
- making travel arrangements to another country.
***If you suspect that information, technology, software, or equipment you are working with may be subject to export control laws, go to the Export Screening Lists page and check the lists maintained by the government to see if your item is listed. Also, contact the Export Controls Coordinator to ensure you are making the correct determination.***
Research and Related Materials
Conducting research on topics which involve any of the items listed in the regulations makes the results from that research subject to export control, unless the research project falls under one of several exclusions (see Export Controls Exclusions). Fortunately, most of the research and related activities at UNI and other universities do fit within one of the exclusions. However, allowing any formal or contractual restrictions on the open sharing of research results eliminates two of the key exclusions (fundamental research and public domain). Moreover, these exclusions apply only to information and not to equipment, materials, chemicals, certain encrypted software and other items. They also do not typically apply to exchanges with individuals from boycotted countries. In addition to other research activities, simply conducting surveys of individuals in boycotted countries may be among the "transactions" that are restricted by the OFAC boycott program. For research and collaborations in restricted countries (see Export Controls Screening Lists), plan well ahead, so that required licenses can be secured (if possible).
Acquisition and Management of Export Controlled Equipment
The regulations restrict not just physical export, but also the transfer of export-controlled products and information within the United States to foreign nationals (a "deemed export"). This includes international students working on controlled equipment, who can be "deemed" to be receiving controlled information about that equipment. Unfortunately, much scientific equipment falls under export control restrictions. Because of the intrusive nature of the regulations, consideration should be given, whenever possible, to acquiring equipment that is not subject to export controls. Also, international students should not be responsible for repair and maintenance of export-controlled equipment. (See Export Controls Screening Lists)
Communication of Technical Information or Software
Communication of technical information about export-controlled equipment and the transfer of export-controlled software also are subject to the regulations. This is true whether the information is transferred in person, is sent by e-mail to a foreign national who is here or abroad, or is posted for upload to the Internet. Therefore, it is prudent to be wary of requests to transfer technical information (such as operation or repair manuals) regarding export-controlled equipment.
Traveling to conferences or other events in countries subject to economic sanctions, as outlined in the OFAC regulations, require securing the appropriate license. In addition, the EAR and ITAR control which items may be taken outside the U.S.
Therefore, faculty and staff should also consider what items they plan to take with them when traveling internationally. For example, employees often take electronic devices (e.g., laptop computers, cell phones, PDAs, GPS), equipment, materials, and data when they travel to conferences or meetings. However, taking such items out of the United States or providing them to foreign persons can constitute an "export" and may require an export license. In addition, laptops can often be lost or stolen, and customs officials here and abroad may inspect and seize belongings. Accordingly, UNI employees should not travel with anything they do not need. This includes information stored in laptops and other devices, in particular, confidential information such as student and personnel records and export-controlled technical data and software. Employees should either remove such items from the device or investigate whether their department has a clean laptop or other devices for travel. Encryption software is highly regulated and may not be a viable alternative. For those items an employee elects to take, please consult the International Travel Checklist to ensure the transferred material is not covered by export control laws, to determine whether any export limitation on the covered material applies to the country of destination, and, if so, to secure export licenses in time for your travel. The International Travel Checklist also addresses other issues, such as State Department travel warnings and alerts and other travel restrictions. The Checklist must accompany any requests to OBO for advance funds for international trips.
Shipping of Goods, Software, Materials, Chemicals, Biologics or Other Items
The simple act of sending a package to a foreign collaborator can result in a violation of export controls as well as other regulations-you may need an export license. If you are sending technical items overseas, including equipment, software, rare materials, dangerous biologics, and the like, it is your responsibility to learn about the regulations and to comply with them by working with the Export Controls Coordinator to determine if the regulations apply and if so, how to address them. In addition, shipping anything to countries subject to embargoes must first be cleared by the Export Controls Coordinator. Department personnel who are asked to ship packages out of the country should inquire as to the contents and follow the above procedures to assure compliance.
Hazardous materials are also subject to US shipping regulations. UNI Environmental Health and Safety must be involved in shipping any toxic or hazardous item to assure compliance with federal and international requirements.
Please note that the OFAC boycott program also specifies individuals and entities with whom U.S. entities may not engage in business. This list is posted the OFAC website. Faculty, staff, and administrators may not sign or otherwise engage in commercial activities with these individuals, companies, or countries without the approval of the Export Controls Coordinator and the authorized signatories for engaging in contracting and other economic activity (within the Office of Sponsored Programs and the Office of Business Operations). If you are aware of participation in University business activities of foreign nationals from the listed countries, please consult the Export Controls Coordinator to determine whether licenses are required.