Export Control Frequently Asked Questions
- What are Export Control Laws?
- How is “export” defined?
- What is a “deemed export?”
- Why do Export Control Laws matter at West Virginia University?
- Which departments are most often affected by ECLs?
- Which federal agencies control exports?
- Which items do the ECLs regulate?
- What if I’m not sure if my item or information is covered by the EAR or ITAR?
- Are there any exceptions to the ECLs?
- What if I’m not sure if a license is required?
- How do I obtain a license?
- What if I have other questions?
Export Control Laws (ECLs) are federal regulations that control the export of certain technologies, commodities, services, or information to other countries or to foreign nationals living in the United States (“deemed export”). These items are regulated for both national security and proprietary reasons, and since 9/11 universities using these items in research have become increasingly scrutinized. To export covered items, a license must be secured from the governing federal agency, such as the Bureau Department of Commerce or the Department of State.
The export 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, of 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 Any transfer of these items or information to a foreign embassy or affiliate
The vast majority of exports do not require the prior approval of the U.S. government. Only those listed in the federal regulations require a license to be exported.
The term “export” does not only apply to the transmission of covered items outside of the United States; it also applies to the transmission of covered items or information to foreign nationals living in the US. This definition is important because it may apply to WVU students or visiting scholars who are not US citizens if no exemption is applicable. For a full definition of “deemed export,” please see 15 C.F.R. 734.2 or 22 C.F.R. 120.17.
Please note that the ITAR provides an exemption for full-time, regular employees of US institutions, including most foreign nationals. Such employees must have permanent abodes in the U.S. throughout their employment and must also agree not to transfer technology to another foreign national without a license. However, this exemption does not apply to foreign graduate students or foreign nationals from ITAR’s prohibited countries.
ECLs can have a significant impact on university research involving regulated items. As defined, the term “export” includes not only the transfer of a controlled item or information outside of the U.S., but also the transfer of an item or information to a foreign national inside the U.S (called the “deemed export” rule). This may include WVU’s foreign students who are exposed to covered technologies or information. Transfers include electronic and digital transfer.
ECLs may also apply to the following situations:
Presentation or discussion of previously unpublished research with foreign nationals or foreign scholars Lab visits by foreign scholars Travel to OFAC sanctioned countries (i.e. Cuba, Iran, North Korea, etc.) Travel with a personal or work-related laptop computer Research collaborations with foreign nationals and technical exchange programs Equipment & material surplus or disposal International collaboration Distance learning Proposal development Supervision of theses and dissertations
Any department or faculty member exporting covered items or information can be subject to ECLs. Departments most often affected include:
Engineering Space sciences Computer Science Biomedical research with lasers Research with encrypted software Research with controlled chemicals, biological agents, and toxins
Exports are primarily controlled by three agencies:
The Department of Commerce, which regulates commercial/military items (“dual use”). The Department of State, which regulates military and defense items. U.S. Department of Treasury, which enforces sanctions against specified countries.
The Department of Commerce lists controlled technologies in its Export Administration Regulations (EAR – trade protection). The Commodity Control List (CCL) lists covered items in ten topical categories, as well as one “catch-all” category. Items on this list are generally commercial in nature, but may also be considered “dual-use (commercial and military)” items. Covered items that do not qualify for an exemption must be licensed by the Bureau of Industry and Security (BIS). You can determine if the EAR covers your item or information by visiting http://www.access.gpo.gov/bis/ear/ear_data.html.
The Department of State lists controlled military technologies in its International Traffic in Arms Regulations (ITAR). The ITAR cover items that are inherently military in nature and lists them on the Munitions List (USML). The USML contains 21 categories and includes “defense articles,” “defense services,” and “technical data.” Some items not inherently military in nature, such as research satellites, are included on the list. Consult http://www.fas.org/spp/starwars/offdocs/itar/p121.htm for more information about covered items.
The Office of Foreign Assets Control (OFAC) enforces economic and trade sanctions against certain countries, individuals, and groups. These sanctioned countries are essentially being boycotted by the United States for various reasons, including support of terrorist activities and proliferation of WMDs. For a current list of boycotted countries, visit http://www.treas.gov/offices/enforcement/ofac/programs/. Other important lists to check can be viewed at http://www.bis.doc.gov/ComplianceAndEnforcement/ListsToCheck.htm.
If you are not sure if your export is subject to the EAR or the ITAR, you can request a Commodity Jurisdiction Ruling from the State Department Directorate of Defense Trade Controls. The State Department will determine whether your item, service, or information falls under either the EAR or ITAR. For more information on requesting a Commodity Jurisdiction Ruling, visit http://www.bis.doc.gov/Licensing/facts3.htm.
Yes! There are several very important exceptions that may apply to university research:
- Fundamental Research Exclusion (FRE): This exclusion applies to basic or applied research in science and/or engineering at an accredited institution of higher learning in the United States where the resulting information, in some cases, is ordinarily published and shared broadly in the scientific community and, in other cases, where the resulting information has been or is about to be published. The FRE does not apply to the physical transmission of goods; it only applies to the transmission of information and data.
- Please note: This FRE may be lost if: restrictions are placed upon publication of research, other than limited prepublication 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 the research is federally-funded and specific access or dissemination controls regarding the resulting information have been accepted by the university or the researcher; or the university accepts any contract clause that restricts the participation of foreign persons. The EAR defines “published” as information that has been, is about to be, or is ordinarily published. The ITAR requires that the information has been published. Thus, the fundamental research exemption is broader under the EAR than it is under the ITAR.
- Public Domain Exemption: This exemption applies to information that is published and generally accessible or available to the public through a variety of mechanisms, including:
- Libraries, newsstands, subscriptions, and bookstores that are open to the public, where the information is sold for no more than a reasonable profit
- Published patents,
- Generally accessible conferences, meetings, or seminars in the US where attendees can take notes and are charged only a reasonable fee
- Publicly accessible, free websites
- Educational Information: General science, math, and engineering commonly taught at universities in courses listed in their course catalogues and their associated teaching labs are generally exempt from ECLs.
It is important that WVU consider its general policy of academic freedom when examining export control matters. Thus, the University will strive to fit most ECL-covered research into an exemption. Exceptions to this policy should only be made after careful review of the potential implications and submission of a written request to the ORIC. The Principal Investigator, Department Chair, and Dean must endorse this request.
If you are unsure whether a license is required for your export, you can contact either the BIS or the Department of State and request an advisory opinion. BIS can advise you whether or not a license is required or if it will likely be granted upon request, although its opinions are not binding. It can also provide you with the correct Export Control Classification Number (ECCN). The Office of Defense Trade Controls will also provide, upon written request, an advisory opinion as to whether your export may require a license under the ITAR. To obtain an advisory opinion, visit:
Once you have determined that a license is required, you can request a license from either the BIS or the Department of State. For items subject to the EAR, see http://www.bis.doc.gov/licensing/index.htm#factsheets for more information. For items subject to the ITAR, visit http://pmdtc.org/licenses.htm.
If you need further information, please contact:
Gary Morris, Ph.D.
Associate Director and Registered Patent Agent Office of Technology Transfer
Chestnut Ridge Research Building, Room 721
PO Box 6845
Tel: (304) 293-6329
Fax: (304) 293-3224