Export Control – FAQ

  1. What are export controls?
  2. Our department doesn’t do any exporting. Do we need to be concerned about export controls?
  3. Is unfunded research subject to export controls?
  4. So many acronyms! What are BIS, DDTC, EAR, ITAR and OFAC?
  5. What is a reexport?
  6. Who is a foreign national or foreign person?
  7. What is a restricted party or Denied Persons? How do I know if one is involved in my research (conducting a screening)?
  8. Do I need to screen visitors?
  9. What are OFAC sanctioned countries?
  10. What is the CCL (Commerce Control List), USML (United States Munitions List) and an ECCN?
  11. What is a dual use item?
  12. What is a defense article?
  13. What is a defense service?
  14. What is a deemed export and what is considered a release of technology under the deemed export rule?
  15. When do I need to apply for an export license for technology under the “deemed export” rule?
  16. What is a Technology Control Plan (TCP)?
  17. The lab that I work in is planning to begin admitting groups of the general public and students to tour the lab facilities. We are concerned that a license might be required if the tour groups include foreign nationals. Would such a tour constitute an export? If so, is the export subject to the EAR?
  18. What do I do about tours if my research in the lab is subject to the EAR and does not qualify for an exclusion?
  19. What is “technology” or “technical data”?
  20. What constitutes the “use” of a controlled commodity?
  21. Does the use of controlled lab equipment by foreign nationals constitute a deemed export?
  22. What are the export control exclusions?
  23. What is the Fundamental Research Exclusion?
  24. What is the Public Domain Exclusion?
  25. What is the Educational Information Exclusion?
  26. Does a sponsor request to review a publication prior to distribution destroy the fundamental research exclusion?
  27. What is a contractual restriction?
  28. What kinds of controls in government-sponsored research compromise the “fundamental research exclusion?”
  29. What are the federal policies relating to ITAR restrictions in fundamental research and why should I care?
  30. Who qualifies as a “bona fide employee” for ITAR purposes?
  31. What do I do if a sponsor begins providing export controlled information or technology to an award previously determined to be fundamental research?
  32. My university will host a prominent scientist from the People’s Republic of China (PRC) who is an expert on research in biomimetic systems, nanoelectronics, nanobioelectronics and nanoenergy. Do I require a license before telling our visitor about my latest, as yet unpublished, research results in those fields or will this qualify for the fundamental research exclusion?
  33. I would like to correspond and share research results with an Iranian expert in my field, which deals with technology that requires a license to all destinations except Canada. Do I need a license to do so?
  34. Suppose the research in question were funded by a corporate sponsor and I had agreed to prepublication review of any paper arising from the research?
  35. In determining whether research is thus open and therefore counts as “fundamental,” does it matter where or in what sort of institution the research is performed?
  36. In a contract for performance of research entered into with the Department of Defense (DOD), we have agreed to certain national security controls. DOD is to have ninety days to review any papers we proposed before they are published and must approve assignment of any foreign nationals to the project. The work in question would otherwise qualify as “fundamental research.” Is the information arising during or resulting from this sponsored research subject to the EAR?
  37. Do the Export Administration Regulations restrict my ability to publish the results of my research?
  38. I am a professor at a U.S. university, with expertise in design and creation of submicron devices. I have been asked to be a consultant for a “third-world” company that wishes to manufacture such devices. Do I need a license to do so?
  39. Is the export or reexport of information contributed to an electronic bulletin board subject to the EAR?
  40. I plan to publish in a foreign journal a scientific paper describing the results of my research, which is in an area listed in the EAR as requiring a license to all countries except Canada. Do I need a license to send a copy to my publisher abroad?
  41. Would I need a license to send the paper to the editors of a foreign journal for review to determine whether it will be accepted for publication?
  42. The research on which I will be reporting in my paper is supported by a grant that requires prepublication clearance by the funding agency. Does that make any difference under the EAR?
  43. My Ph.D. thesis is on technology listed in the EAR as requiring a license to all destinations except Canada, which has never been published for general distribution. However, the thesis is available at the institution from which I took the degree. Do I need a license to send another copy to a colleague overseas?
  44. Is the export or reexport of information subject to the EAR if it is available in a library and sold through an electronic or print service?
  45. Is the export or reexport of information subject to the EAR if the information is available in an electronic form in a library at no charge to the library patron?
  46. Is the export or reexport of information subject to the EAR if the information is available in a library and sold for more than the cost of reproduction and distribution?
  47. I have been invited to give a paper at a prestigious international scientific conference on a subject listed as requiring a license under the EAR to all countries, except Canada. Scientists in the field are given an opportunity to submit applications to attend. Invitations are given to those judged to be the leading researchers in the field, and attendance is by invitation only. Attendees will be free to take notes, but not make electronic or verbatim recordings of the presentations or discussions. Some of the attendees will be foreigners. Do I need a license to give my paper?
  48. Is the export or reexport of software in machine readable code subject to the EAR when the source code for such software is publicly available?
  49. Is the export or reexport of software sold at a price that does not exceed the cost of reproduction and distribution subject to the EAR?
  50. Is the export or reexport of patented information fully disclosed on the public record subject to the EAR?
  51. I teach a university graduate course on design and manufacture of very high-speed integrated circuitry. Many of the students are foreigners. Do I need a license to teach this course?
  52. What if I teach proprietary courses? Is the instruction in our classes subject to the EAR?
  53. How do I know if export controls apply to a grant or contract?
  54. What do I do to ensure my research is not subject to export controls?
  55. What kinds of activities trigger the need for a license?
  56. How do I apply for a license?
  57. How can a researcher keep up with export control information that is vague and seems to change?

 

Contact the University ECO, Dr. Lisa Goble at exportcontrol@uncg.edu for additional information.


  1. What are export controls?

The term “Export Controls” refers collectively to the body of U.S. laws and regulations that govern the transfer of controlled items or information to foreign nationals or foreign entities. They cover:

  • Transfers of controlled information, including technical data, to persons and entities outside the United States;
  • Shipment of controlled physical items, such as scientific equipment, that require export licenses from the U.S. to a foreign country; and
  • Verbal, written, electronic, and/or visual disclosures of controlled scientific and technical information related to export controlled items to foreign nationals (“deemed exports”) in the United States.

Any item that is sent from the United States to a foreign destination is an export. How an item is transported outside of the U.S. does not matter. In addition, technology, know how, and non-encryption source code that is released to foreign national within the U.S. is “deemed” to be an export to the country where the person is a resident or citizen and could be subject to licensing requirements. This is what is commonly known as the “deemed export” rule.

Some examples of exports include:

  • Items sent by regular mail or hand-carried on an airplane
  • Design plans, blue prints, schematics sent via fax to a foreign destination
  • Software uploaded or downloaded from an internet site
  • Technology transmitted via e-mail or during a telephone conversation.

Much of the controlled technology to which our international students and scholars have access on campus at UNCG, however, will not require licensing because of the exceptions contained in the regulations for Fundamental Research or Educational Information exclusions.

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  1. Our department doesn’t do any exporting. Do we need to be concerned about export controls?

Yes, export control regulations apply to all international activities regardless of location:
Example: The transfer of infrared camera technology to an Iranian national in the U.S. may be regulated as if the transfer of the technology was made to the Iranian national in Iran. The transfer is thus “deemed” to be to Iran even though all activities take place in the U.S. Regardless of the method used for the transfer, the transaction is considered an export for export control purposes.

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  1. Is unfunded research subject to export controls?

Yes, in particular to international collaborations; however, most unfunded research will qualify for an exclusion so long as the research is published, or is planned to be published.

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  1. So many acronyms! What are BIS, DDTC, EAR, ITAR and OFAC?

There are three main agencies responsible for regulating the export control laws:

  • S. Department of Commerce, Bureau of Industry and Security (BIS)
  • S. Department of State, Directorate of Defense Trade Controls (DDTC)
  • S. Department of Treasury, Office of Foreign Assets Control (OFAC)

Other agencies which also have jurisdiction over certain items and/or activities subject to export controls the Customs and Border Protection (CBP), Department of Homeland Security (DHS), Food and Drug Administration (FDA), Alcohol Tobacco and Firearms (ATF), Nuclear Regulatory Commission (NRC), and U.S. Department of Energy (DoE), just to name a few.

EAR – the Export Administration Regulations, created and enforced by the BIS for regulating the export control laws. This information is identified using Export Control Classification Numbers (ECCN) and export requirements are found on the Commerce Control List (CCL) Country Chart. EAR regulates the export of “dual use” items; technology designed for commercial purposes and with potential military applications, such as computers, software, aircraft, and pathogens, as well the reexport of items. EAR regulations may affect many activities at UNCG from showing a foreign national student hoe to operate a high-energy laser to taking a laptop to a restricted country.

ITAR refers to the International Traffic in Arms Regulations (DDTC, U.S. Department of State) of the United States Department of State which controls the export of “defense articles and defense services. The U.S. Munitions List (USML) categorizes items that are under the jurisdiction of the ITAR. Items on the USML are designed for military purposes.

OFAC: Office of Foreign Asset Control (U.S. Treasury Department) of the United States Department of Treasury administers and enforces economic and trade sanctions based on U.S. foreign policy and national security goals against targeted foreign countries, terrorists, and those engaged in activities related to the proliferation of weapons of mass destruction.

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  1. What is a reexport?

An actual shipment or transmission of items subject to the EAR from one foreign country to another foreign country. For purposes of the EAR, the export or reexport of items subject to the EAR that will transit through a country or countries, or be transshipped in a country or countries to a new country, or are intended for reexport to the new country, are deemed to be exports to the new country.

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  1. Who is a foreign national or foreign person?

A Foreign National is any person who is NOT:

  • A U.S. citizen
  • Permanent resident alien (Green Card Holders)
  • Asylee
  • Refugee
  • Temporary resident under amnesty provisions

The following are considered foreign nationals or foreign persons:

  • Foreign corporation, business association, partnership entity or group not incorporated in the U.S.
  • Person in the US in non-immigrant status (i.e. international students, visiting scholars or any person on visa types: H-1B, H-1B1. H-3, L-1, J-1, F-1, L-1, O-1 ,etc.)

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  1. What is a restricted party or Denied Persons? How do I know if one is involved in my research (conducting a screening)?

Several agencies of the U.S. government have established lists of Denied Persons or Restricted Parties which identify individuals or entities with whom the university and its employees may be prohibited by law, or require a license, to export to or engage in business transactions. Note these may or may not be foreign nationals. These include the Denied Persons List, Entity List, and Unverified List (Department of Commerce), the Debarred Parties Lists (Department of State), and the Specially Designated Nationals and Blocked Persons List (Department of Treasury).

UNCG’s Export Control Officer (ECO) can screen project participants, employees, visitors and entities to ensure they are not Restricted Parties. Records documenting screenings must be kept to comply with export control regulations. Contact the ECO to request screenings.

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  1. Do I need to screen visitors?

It depends. Any foreign national who is not a UNCG faculty or staff member or an enrolled student and who will be visiting UNCG by invitation or arrangement and may have access to EAR controlled equipment, data, or technology that does not qualify for an exclusion should be screened. UNCG’s Export Control Officer (ECO) can screen visitors and their associated entity, e.g. employer, to ensure they are not Restricted Parties. In addition, she can advise you on any concerns related to existing Technology Control Plans (see below) as it relates to the screened visitors. Contact the ECO to request screenings.

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  1. What are OFAC sanctioned countries?

The U.S. Department of the Treasury Office of Foreign Assets Control (OFAC) administers and enforces economic and trade sanctions or embargoes against specific foreign countries, terrorists, international narcotics traffickers, and those engaged in activities related to the proliferation of weapons of mass destruction. Sanctions are prohibitions on transactions (e.g., financial exchanges, providing or receiving services of value) with designated countries, entities or individuals.

It is important to note the OFAC sanctions program may prohibit conducting surveys of persons in sanctioned countries or presenting at conferences.

The applicable sanctions vary depending on the country involved and are subject to change. The complete and updated list of countries included in the sanctions program may be viewed at the following website:

http://www.treasury.gov/offices/enforcement/ofac/programs/index.shtml

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  1. What is the CCL (Commerce Control List), USML (United States Munitions List) and an ECCN?

ITAR (International Traffic in Arms Regulations) and the EAR (Export Administration Regulations in the DOC) are export control regulations designed to restrict the release of certain materials, devices and technical information outside of the United States. Release of this information is granted by obtaining an export license the appropriate licensing agency, if no exclusions or exemptions apply contact the ECO at exportcontrol@uncg.edu to determine next steps for obtaining the required license.

In order to decide if an export license is needed from the DOC, you must determine if the item you intend to export has a specific Export Control Classification Number (ECCN). For goods and technology listed on the EAR’s Commerce Control List (CCL), a license may be required for export, depending on the destination country, receiving party, and end use (unless an exclusion or exemption applies).

The United States Munitions List (USML) consists of 21 categories of articles (including associated components, systems, subsystems parts, accessories, and attachments), services, and related technical data that are designated as defense or space-related. Items on the USML are ITAR controlled and subject to the jurisdiction of the US Department of State. Use of USML defense articles do not qualify for an exclusion.

Dual Use items are covered by both the EAR’s CCL and ITAR’s USML. If items are subject to both the EAR and ITAR, the ITAR regulations takes precedence.

ECCNs are five character alpha-numeric designations used on the Commerce Control List (CCL) to identify items for export control purposes. An ECCN categorizes items based on the nature of the product, i.e. type of commodity, software, or technology and its respective technical parameters.

The CCL categorizes these covered items into 10 broad categories:

  • Nuclear Materials, Facilities and Equipment, and Miscellaneous
  • Materials, Chemicals, Microorganisms, and Toxins
  • Materials Processing
  • Electronics
  • Computers
  • Telecommunications and Information Security
  • Lasers and Sensors
  • Navigation and Avionics
  • Marine
  • Propulsion Systems, Space Vehicles, and Related Equipment

The USML categorizes these covered items into 21 broad categories:

  • Firearms
  • Artillery projectors and armaments
  • Ammunition
  • Launch vehicles, guided missiles, ballistic missiles, rockets, torpedoes, bombs, and mines
  • Explosives, propellants, incendiary agents, and their constituents
  • Vessels of war and special naval equipment
  • Tanks and military vehicles
  • Aircraft and associated equipment
  • Military training equipment
  • Protective personnel equipment
  • Military electronics
  • Fire control, range finder, optical and guidance and control equipment
  • Auxiliary military equipment
  • Toxicological agents and associated equipment
  • Spacecraft systems and associated equipment
  • Nuclear weapons, design, and testing equipment
  • Classified articles, technical data and defense services not otherwise enumerated
  • Directed energy weapons
  • Submersible vessels, oceanographic and associated equipment
  • Miscellaneous articles not listed above with substantial military applicability and which were designed or modified for military purposes

The regulations include an additional “catch-all” category, the EAR99, which covers any good or technology that is subject to the EAR, but that is not on the CCL. If your item falls under U.S. Department of Commerce jurisdiction and is not listed on the CCL, it is designated as EAR99. EAR99 items generally consist of low-technology or consumer goods and do not require a license in many situations. If your proposed export of an EAR99 item is to an embargoed country, to an end-user of concern or in support of a prohibited end-use, you may be required to obtain a license.

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  1. What is a dual use item?

Dual use items and technologies or associated technical data are primarily commercial in nature but also have military or proliferation applications. The term Dual Use is used to distinguish the types of items covered solely by the EAR on the Commerce Control List (CCL) from those that are covered by both the CCL and regulations of other U.S. government departments and agencies with export licensing responsibilities, e.g. ITAR’s USML. If items are subject to both the EAR and ITAR, the ITAR takes precedence.

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  1. What is a defense article?

Defense articles are any item or technical data designated on the United States Munitions List (USML), which includes all items, data and services specifically designed, developed, configured, adapted, or modified for a military application, that do not have predominant civil applications, and that do not have performance equivalent to those of an article or service used for civil applications. The term includes technical data recorded or stored in any physical form, models, mockups or other items that reveal technical data directly relating to items in the USML. It does not include basic marketing information on function or purpose or general system descriptions.

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  1. What is a defense service?

A defense service is “The furnishing of assistance (including training) to foreign persons, whether in the United States or abroad in the design, development, engineering, manufacture, production, assembly, testing, repair, maintenance, modification, operation, demilitarization, destruction, processing or use of defense articles;” or “The furnishing to foreign persons of any technical data controlled [in the USML] whether in the United States or abroad;” or ”Military training of any foreign military forces, regular or irregular, in the use of defense articles” including formal or informal instruction of foreign persons in the United States or abroad by correspondence courses, technical, educational, or information publications and media of all kinds, training aid, orientation, training exercise, and military advice.

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  1. What is a deemed export and what is considered a release of technology under the deemed export rule?

A deemed export is the release of technology or information to a foreign national within the U.S., including students, post-docs, faculty, visiting scientists or training fellows. Technology is “released” for export when it is available to foreign nationals for visual inspection (such as reading technical specifications, plans, blueprints, etc.); when technology is exchanged orally; or when technology is made available by practice or application under the guidance of persons with knowledge of the technology..

Deemed exports are the primary area of export control exposure for the university.

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  1. When do I need to apply for an export license for technology under the “deemed export” rule?

Assuming that a license is required because the technology does not qualify for treatment under EAR99and no license exception is available, you must apply for an export license under the “deemed export” rule when both of the following conditions are met: (1) you intend to transfer controlled technologies to foreign nationals in the United States; and (2) transfer of the same technology to the foreign national’s home country would require an export license. Contact the university ECO as soon as possible to determine need for a license or help in identifying the appropriate license exception.

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  1. What is a Technology Control Plan (TCP)?

A TCP documents specific procedures taken to safeguard and control access to information or items that are export restricted. A TCP will outline what the restricted information/item is, who will have access to it, how access will be monitored and controlled, how the information/item will be physically and electronically stored, what information about it can be shared or presented and what will be done with the information/item once the project is complete. Such security measures include Laboratory Compartmentalization, Time Blocking, Marking, Locked Storage, Electronic Security, and Confidential Communications

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  1. The lab that I work in is planning to begin admitting groups of the general public and students to tour the lab facilities. We are concerned that a license might be required if the tour groups include foreign nationals. Would such a tour constitute an export? If so, is the export subject to the EAR?

The EAR define exports and reexports of technology to include release through visual inspection by foreign nationals of U.S.-origin equipment and facilities. Such an export or reexport qualifies under the “publicly available” provision and would not be subject to the EAR so long as the tour is truly open to all members of the public, including any competitors, and you do not charge a fee that is not reasonably related to the cost of conducting the tours. Otherwise, you will have to obtain a license, or qualify for a License Exception, prior to permitting foreign nationals to tour your facilities.

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  1. What do I do about tours if my research in the lab is subject to the EAR and does not qualify for an exclusion?

If there is research in the lab that does not qualify for an Exclusion, or involves ITAR/USML defense articles and associated technical data, the researcher, must institute research security measures to safeguard the research and ITAR/USML articles and data. These measures are detailed in a Technology Control Plan, and include:

  • Laboratory Compartmentalization by reconfiguring lab space or work areas
  • Time blocking by restricting times when export controlled research will take place
  • Mark equipment and data as “export controlled” for identification purposes
  • Exclude foreign national participation from the research or obtain worker licenses
  • Implement physical safeguards to secure tangible items and data
  • Implement data safeguards to secure data

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  1. What is “technology” or “technical data”?

Technical information beyond general and basic marketing materials about a controlled commodity. The terms do not refer to the controlled equipment/commodity itself, or to the type of information contained in publicly available user manuals. Rather, the terms “technology” and “technical data” mean specific information necessary for the “development”, “production”, or “use” of a commodity, and usually takes the form of blueprints, drawings, photographs, plans, diagrams, models, formulae, tables, engineering specifications, and documentation. The “deemed export” rules apply to the transfer of such technical information to foreign nationals inside the U.S.

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  1. What constitutes the “use” of a controlled commodity?

The routine “use” of controlled equipment by foreign nationals (e.g., using it in the ordinary way specified in the user manual, in such a manner that does not disclose technical information about the equipment beyond what is publicly available), does not require a license. However, a license may be required if a foreign national is “using” the equipment in such a way as to access technical information beyond what is publicly available (for example, accessing the source code of software or modifying a piece of equipment in such a way as to gain non-publicly available technical information about its design).

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  1. Does the use of controlled lab equipment by foreign nationals constitute a deemed export?

It depends on the equipment. Use of a defense article by foreign nationals is prohibited, unless a license is obtained prior to “use.”

Use of EAR/CCL items equipment) by a foreign national in the U.S. is not controlled by the export regulations. In the U.S., any person (including foreign nationals) may purchase export-controlled commodities and the “deemed” export rule only applies to technical information about the controlled commodity. As such, while the use of equipment inside the U.S. is not controlled, the transfer of technical information relating to the use (i.e., operation, installation, maintenance, repair, overhaul and refurbishing) of equipment may be controlled in certain circumstances. For example, if the manufacturer of the equipment provided the University some confidential, proprietary information about the design or manufacture of the equipment, then the University might need a “deemed” export license to provide such proprietary information to a foreign national, especially if shipment of the item to the home country of the foreign national would require an export license. In sum, the export regulations allow foreign students, researchers and visitors to “use” (and receive information about how to use) controlled equipment while conducting fundamental research on U.S. university campuses or while studying at the institution, as long as the technical information about the controlled equipment qualifies as “in the public domain” or “publicly available.

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  1. What are the export control exclusions?

Research is not subject to export controls if it qualifies for at least one of three exclusions:

  • Fundamental Research Exclusions
  • Public Domain Exclusions
  • Educational Information Exclusions

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  1. What is the Fundamental Research Exclusion?

The Fundamental Research Exclusion is a broad-based general legal exclusion that helps to protect technical information (but not tangible items) involved in research from export controls. It is defined as basic and applied research in science and engineering conducted at accredited U.S. institutions of higher education where the resulting information is ordinarily published and shared broadly within the scientific community. Such research can be distinguished from proprietary research and from industrial development, design, production, and product utilization, the results of which ordinarily are restricted for proprietary reasons or specific national security reasons. Research qualifying as “fundamental research” is not subject to export controls.

University research will 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 prepublication reviews by research sponsors to prevent inadvertent divulging of proprietary information provided to the researcher by sponsor or to insure that publication will not compromise patent rights of the sponsor. There is no general fundamental research exclusion that applies to defense articles (as opposed to technical data) under the ITAR; however, there are exclusions that apply to specific articles under certain circumstances.

Fundamental research permits U.S. universities to allow foreign members of their communities (e.g., students, faculty, and visitors) to participate in research projects involving non-ITAR export-controlled technical information on campus in the U.S. without a deemed export license. Further, technical information resulting from fundamental research may be shared with foreign colleagues

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  1. What is the Public Domain Exclusion?

The Public Domain Exclusion applies to information that is published and that is 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 in science and engineering at accredited institutions of higher learning in the U.S. where the resulting information is ordinarily published and shared broadly in the scientific community.

ITAR/USML technical information already in the public domain qualifies for the Public Domain exclusion as long as it meets the requirements stipulated above.

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  1. What is the Educational Information Exclusion?

Educational Information Exclusion covers general science, math or engineering commonly taught in courses listed in catalogues and associated teaching laboratories of academic institutions in the U.S. even if the information concerns EAR/CCL controlled commodities or items. ITAR/USML items do not qualify for the Educational Exclusion, as instruction is a “defense service.”

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  1. Does a sponsor request to review a publication prior to distribution destroy the fundamental research exclusion?

No, this kind of review, even when requested, is considered a courtesy rather than a restriction. If the award required “review and approval” it is considered 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 destroy the fundamental research exclusion.

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  1. What is a contractual restriction?

Contract clauses that require approval authority over publication or any other dissemination of research results, not including provisions for a short pre-publication review of results, (30-90 days) to remove company/collaborator business proprietary or pre-patentable information.

Export controls may impose access, dissemination, and participation restrictions on information and tangible items; “exports” can include both the shipment of materials to another country AND/OR the disclosure of controlled information to foreign nationals who are in the U.S.

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  1. What kinds of controls in government-sponsored research compromise the “fundamental research exclusion?”

If the U.S. Government funds research and specific controls are agreed on to protect information resulting from the research, then information resulting from the project will not be considered fundamental research. Such controls are usually contained in contractual clauses. Examples of “specific controls” include requirements for prepublication review by the Government, with right to withhold permission for publication; restrictions on prepublication dissemination of information to non-U.S. citizens or other categories of persons; or restrictions on participation of non-U.S. citizens or other categories of persons in the research.

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  1. What are the federal policies relating to ITAR restrictions in fundamental research and why should I care?

The DoD can have compelling reasons to impose restrictions on research, but the federal policy is to limit restrictions as much as possible. Does your research qualify as “fundamental research” or has the DoD determined that restrictions are necessary? There are two primary federal policies the government has issued which should be used during negotiation with the Sponsor to remove problematic clauses to ensure there are no participation or publication restrictions. These policies do not override the EAR or ITAR nor is the use of defense articles and associated technical data in research permitted by the policies.

  • National Security Decision Directive 189: White House policy regarding the transfer of scientific, technical, and engineering information qualifying as fundamental research at universities and laboratories that stipulates fundamental research remain unrestricted to the maximum extent possible.
  • Policy Memo Protecting Exemptions for Fundamental Research at Universities specifies contracts and grants should be structured to allow research to qualify as “fundamental research” and should not be subject to export controls, except on a limited basis. Thus, fundamental research should not involve ITAR/USML defense articles or associated technical data.

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  1. Who qualifies as a “bona fide employee” for ITAR purposes?

A bona fide employee per the Code of Federal Regulations (CFR) is “a full time regular employee” (not a student or visiting scholar) whose:

  • Permanent abode throughout the period of employment is in the U.S.
  • Who is not a foreign national from a proscribed country

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  1. What do I do if a sponsor begins providing export controlled information or technology to an award previously determined to be fundamental research?

This action is an indication that the direction of the research or some other factor has changed the project in some way to render the export control regulations applicable to this project and that, more than likely, the researcher’s work will now be export controlled. The PI should reexamine the research, checking the ITAR/USML and EAR/CCL lists to see if the research falls under either of these lists. If the PI makes the determination that the research does now fall under export control restrictions, the information/technology must be protected from intentional (or inadvertent) export or “deemed export.” The researcher should also notify the assigned Contract Administrator in the Office of Sponsored Programs that the export control status has changed. The PI should re-evaluate the project’s export control determination prior to changes in scope of work or hiring foreign nationals to work on the project, including graduate and undergraduate students.

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  1. My university will host a prominent scientist from the People’s Republic of China (PRC) who is an expert on research in biomimetic systems, nanoelectronics, nanobioelectronics and nanoenergy. Do I require a license before telling our visitor about my latest, as yet unpublished, research results in those fields or will this qualify for the fundamental research exclusion?

If you performed your research at UNCG and you were subject to no contract controls on release of the research, your research would qualify as “fundamental research”. Information arising during or resulting from such research is not subject to the EAR. You should probably assume, however, that your visitor will be debriefed later about anything of potential military value he learns from you. If you are concerned that giving such information to him, even though permitted, could jeopardize U.S. security interests, the Commerce Department can put you in touch with appropriate Government scientists who can advise you. Contact the University ECO, Dr. Lisa Goble at exportcontrol@uncg.edu for additional information.

  1. What if I were proposing to talk with a PRC expert in China? Do I require a license before telling the expert about my latest, as yet unpublished, research results in those fields or will this qualify for the fundamental research exclusion?No, if the information in question arose during or resulted from the same “fundamental research.”
  2. Could I properly do some work as PRC expert in his research laboratory inside China?

    Application abroad of personal knowledge or technical experience acquired in the United States constitutes an export of that knowledge and experience, and such an export may be subject to the EAR. If any of the knowledge or experience you export in this way requires a license under the EAR, you must obtain such a license or qualify for a License Exception.

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  1. I would like to correspond and share research results with an Iranian expert in my field, which deals with technology that requires a license to all destinations except Canada. Do I need a license to do so?

Not as long as we are still talking about information that arose during or resulted from research that qualifies as “fundamental” under the rules spelled out in the federal regulations.

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  1. Suppose the research in question were funded by a corporate sponsor and I had agreed to prepublication review of any paper arising from the research?

Whether your research would still qualify as “fundamental” would depend on the nature and purpose of the prepublication review. If the review is intended solely to ensure that your publications will neither compromise patent rights nor inadvertently divulge proprietary information that the sponsor has furnished to you, the research could still qualify as “fundamental.” But if the sponsor will consider as part of its prepublication review whether it wants to hold your new research results as trade secrets or otherwise proprietary information (even if your voluntary cooperation would be needed for it to do so), your research would no longer qualify as “fundamental.” As used in these regulations it is the actual and intended openness of research results that primarily determines whether the research counts as “fundamental” and so is not subject to the EAR.

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  1. In determining whether research is thus open and therefore counts as “fundamental,” does it matter where or in what sort of institution the research is performed?

In principle, no. “Fundamental research” is performed in industry, Federal laboratories, or other types of institutions, as well as in universities. The regulations introduce some operational presumptions and procedures that can be used both by those subject to the regulations and by those who administer them to determine with some precision whether a particular research activity is covered. Recognizing that common and predictable norms operate in different types of institutions, the regulations use the institutional locus of the research as a starting point for these presumptions and procedures. Nonetheless, it remains the type of research, and particularly the intent and freedom to publish that identifies “fundamental research,” not the institutional locus.

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  1. In a contract for performance of research entered into with the Department of Defense (DOD), we have agreed to certain national security controls. DOD is to have ninety days to review any papers we proposed before they are published and must approve assignment of any foreign nationals to the project. The work in question would otherwise qualify as “fundamental research.” Is the information arising during or resulting from this sponsored research subject to the EAR?

Any export or reexport of information resulting from government-sponsored research that is inconsistent with contract controls you have agreed to will not qualify as “fundamental research” and any such export or reexport would be subject to the EAR. Any such export or reexport that is consistent with the controls will continue to be eligible for export and reexport under the “fundamental research” rule set forth in the regulations. Thus, if you abide by the specific controls you have agreed to, you need not be concerned about violating the EAR. If you violate those controls and export or reexport information as “fundamental research,”, you may subject yourself to the sanctions provided for under the EAR, including criminal sanctions, in addition to administrative and civil penalties for breach of contract under other law.

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  1. Do the Export Administration Regulations restrict my ability to publish the results of my research?

The Export Administration Regulations are not the means for enforcing the national security controls you have agreed to. If such a publication violates the contract, you would be subject to administrative, civil, and possible criminal penalties under other law.

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  1. I am a professor at a U.S. university, with expertise in design and creation of submicron devices. I have been asked to be a consultant for a “third-world” company that wishes to manufacture such devices. Do I need a license to do so?

Quite possibly you do. Application abroad of personal knowledge or technical experience acquired in the United States constitutes an export of that knowledge and experience that is subject to the Export Administration Regulations. If any part of the knowledge or experience your export or reexport deals with technology that requires a license under the EAR, you will need to obtain a license or qualify for a License Exception.

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  1. Is the export or reexport of information contributed to an electronic bulletin board subject to the EAR?

Assume each of the following:

  1. Information is uploaded to an electronic bulletin board by a person that is the owner or originator of the information;
  2. That person does not charge a fee to the bulletin board administrator or the subscribers of the bulletin board; and
  3. The bulletin board is available for subscription to any subscriber in a given community regardless of the cost of subscription.

Such information is “publicly available” and therefore not subject to the EAR even if it is not elsewhere published and is not in a library. The reason for this conclusion is that the bulletin board subscription charges or line charges are for distribution exclusively, and the provider of the information receives nothing for the inherent value of the information.

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  1. I plan to publish in a foreign journal a scientific paper describing the results of my research, which is in an area listed in the EAR as requiring a license to all countries except Canada. Do I need a license to send a copy to my publisher abroad?

No. Your research results would be made public by the planned publication. You would not need a license. In addition, it would not matter where you work or where you performed the research. Of course, the answer would be different if there are any restrictions on its publication.

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  1. Would I need a license to send the paper to the editors of a foreign journal for review to determine whether it will be accepted for publication?

No. You are submitting the paper to the editors with the intention that the paper will be published.

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  1. The research on which I will be reporting in my paper is supported by a grant that requires prepublication clearance by the funding agency. Does that make any difference under the EAR?

No, as long as the review is time limited (90 days max) and does not restrict final publication.

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  1. My Ph.D. thesis is on technology listed in the EAR as requiring a license to all destinations except Canada, which has never been published for general distribution. However, the thesis is available at the institution from which I took the degree. Do I need a license to send another copy to a colleague overseas?

That may depend on where in the institution it is available. If it is not readily available in the university library (e.g., by filing in open stacks with a reference in the catalog), it is not “publicly available” and the export or reexport would be subject to the EAR on that ground. The export or reexport would not be subject to the EAR if your Ph.D. research qualified as “fundamental research”. If not, however, you will need to obtain a license or qualify for a License Exception before you can send a copy out of the country.

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  1. Is the export or reexport of information subject to the EAR if it is available in a library and sold through an electronic or print service?

Electronic and print services for the distribution of information may be relatively expensive in the marketplace because of the value vendors add in retrieving and organizing information in a useful way. If such information is also available in a library — itself accessible to the public – or has been published in any way, that information is “publicly available” for those reasons, and the information itself continues not to be subject to the EAR even though you access the information through an electronic or print service for which you or your employer pay a substantial fee.

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  1. Is the export or reexport of information subject to the EAR if the information is available in an electronic form in a library at no charge to the library patron?

Information available in an electronic form at no charge to the library patron in a library accessible to the public is information publicly available even though the library pays a substantial subscription fee for the electronic retrieval service.

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  1. Is the export or reexport of information subject to the EAR if the information is available in a library and sold for more than the cost of reproduction and distribution?

Information from books, magazines, dissertations, papers, electronic data bases, and other information available in a library that is accessible to the public is not subject to the EAR. This is true even if you purchase such a book at more than the cost of reproduction and distribution. In other words, such information is “publicly available” even though the author makes a profit on your particular purchase for the inherent value of the information.

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  1. I have been invited to give a paper at a prestigious international scientific conference on a subject listed as requiring a license under the EAR to all countries, except Canada. Scientists in the field are given an opportunity to submit applications to attend. Invitations are given to those judged to be the leading researchers in the field, and attendance is by invitation only. Attendees will be free to take notes, but not make electronic or verbatim recordings of the presentations or discussions. Some of the attendees will be foreigners. Do I need a license to give my paper?

No. Release of information at an open conference and information that has been released at an open conference is not subject to the EAR. The conference you describe fits the definition of an open conference.

  1. Would it make any difference if there were a prohibition on making any notes or other personal record of what transpires at the conference?Yes. To qualify as an “open” conference, attendees must be permitted to take notes or otherwise make a personal record (although not necessarily a recording). If note taking or the making of personal records is altogether prohibited, the conference would not be considered “open”.
  2. Would it make any difference if there were also a registration fee?

    That would depend on whether the fee is reasonably related to costs and reflects an intention that all interested and technically qualified persons should be able to attend.
  3. Would it make any difference if the conference were to take place in another country?No.
  4. Must I have a license to send the paper I propose to present at such a foreign conference to the conference organizer for review?No. A license is not required under the EAR to submit papers to foreign organizers of open conferences or other open gatherings with the intention that the papers will be delivered at the conference, and so made publicly available, if favorably received. The submission of the papers is not subject to the EAR.
  5. Would the answers to any of the foregoing questions be different if my work were supported by the Federal Government?

    No. You may export and reexport the papers, even if the release of the paper violates any agreements you have made with your government sponsor. However, nothing in the EAR relieves you of responsibility for conforming to any controls you have agreed to in your Federal grant or contract.

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  1. Is the export or reexport of software in machine readable code subject to the EAR when the source code for such software is publicly available?

If the source code of a software program is publicly available, then the machine readable code compiled from the source code is software that is publicly available and therefore not subject to the EAR.

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  1. Is the export or reexport of software sold at a price that does not exceed the cost of reproduction and distribution subject to the EAR?

Software in machine readable code is publicly available if it is available to a community at a price that does not exceed the cost of reproduction and distribution. Such reproduction and distribution costs may include variable and fixed allocations of overhead and normal profit for the reproduction and distribution functions either in your company or in a third party distribution system. In your company, such costs may not include recovery for development, design, or acquisition. In this case, the provider of the software does not receive a fee for the inherent value of the software.

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  1. Is the export or reexport of patented information fully disclosed on the public record subject to the EAR?

Information to the extent it is disclosed on the patent record open to the public is not subject to the EAR even though you may use such information only after paying a fee in excess of the costs of reproduction and distribution. In this case the seller does receive a fee for the inherent value of the technical data; however, the export or reexport of the information is nonetheless not subject to the EAR because any person can obtain the technology from the public record and further disclose or publish the information. For that reason, it is impossible to impose export controls that deny access to the information.

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  1. I teach a university graduate course on design and manufacture of very high-speed integrated circuitry. Many of the students are foreigners. Do I need a license to teach this course?

No. Release of information by instruction in catalog courses and associated teaching laboratories of academic institutions is not subject to the EAR.

  1. Would it make any difference if some of the students were from countries to which export licenses are required?No.
  2. Would it make any difference if I talk about recent and as yet unpublished results from my laboratory research?

    No.
  3. Even if that research is funded by the Government?Even then, but you would not be released from any separate obligations you have accepted in your grant or contract.
  4. Would it make any difference if I were teaching at a foreign university?No.

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  1. What if I teach proprietary courses? Is the instruction in our classes subject to the EAR?

Yes. That instruction would not qualify as “release of educational information” because your proprietary business does not qualify as an “academic institution.” Conceivably, however, the instruction might qualify as “release at an open seminar, or other open gathering”. The conditions for qualification of such a seminar or gathering as “open”, including a fee “reasonably related to costs (of the conference, not of producing the data) and reflecting an intention that all interested and technically qualified persons be able to attend,” would have to be satisfied.

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  1. How do I know if export controls apply to a grant or contract?

Export controls only apply to a grant or contract that involves technology listed in either the ITAR/USML or the EAR/CCL and:

  • The research does not qualify for an exclusion; or
  • There are physical exports, or
  • There is foreign travel with controlled equipment, or travel to a sanctioned country, or
  • Specific controls are agreed on to protect information resulting from the research (typically found in problematic clauses) including access, publication, or participation restrictions, or
  • Defense articles or associated technical information are used in the research

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  1. What do I do to ensure my research is not subject to export controls?

Researchers have the choice to accept or reject research. For researchers who desire to have unrestricted academic freedom not subject to export controls, it is important to preserve the publicly available and public domain exclusions/protections provided by the government, including that afforded to fundamental research. Without exclusions, EAR or ITAR’s licensing requirements may apply to information (technology or technical data) concerning controlled commodities or items. Unless a license exclusion applies, a “deemed export” license is required before information is conveyed (even visually thorough observation) to foreign students, researchers, staff or visitors on campus, and an actual export license would be required before information is conveyed abroad to anyone.

  • Know your sponsor and ask them if the research will have access, participation, publication/dissemination restrictions.
  • Assure that the research qualifies for an Exclusion and document your findings with the ECO.
  • Determine if the technology is listed in the EAR/CCL or the ITAR/USML. Use of USML defense articles do not qualify for an exclusion.
  • Be cautious of DoD Sponsored research. Ensure the research will qualify for an exclusion by not using defense articles or technical data. Ask the Sponsor if the funding is 6.1 (basic) or 6.2 (applied) or some other type (6.3, 6.4, etc.).
  • Ensure that no defense articles or technical data are involved in the research.
  • Assure that all technical data about export-controlled commodities qualify as “publicly available” (e.g., publish early and often).
  • Do not accept publication controls or access/dissemination restrictions hidden in a contract (such as approval requirements for use of foreign nationals). Negotiate such restrictions out of the agreement.
  • Do not enter into ‘secrecy agreements’ or otherwise agree to withhold results in research projects conducted at the University or that involve University facilities, students, or staff.
  • Do not accept proprietary information from another that is marked “Export Controlled.” Return to the manufacturer any materials they provide to you about export-controlled equipment that is marked “Confidential.” Review any Confidentiality/Non-Disclosure Agreements to insure that you are not assuming the burden of restricting dissemination based on citizenship status or securing licenses.

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  1. What kinds of activities trigger the need for a license?

The following are examples of the types of university activities that may trigger the need for an export license or deemed export license:

  • International shipments of equipment or data
  • Research involving export controlled items or information (e.g., defense items or services, satellites, WMD, non-mass market encryption)
  • Involving foreign nationals in research that does not qualify for an exclusion
  • Presenting unpublished information not protected under an exclusion
  • Travel or field work in a sanctioned / embargoed country
  • Providing financial support to a sanctioned / embargoed country
  • Shipping or hand carrying internationally any controlled pathogens, toxins, viruses, bacteria, fungi, select agents, or chemicals
  • Use of any ITAR/USML defense article or associated technical data

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  1. How do I apply for a license?

Export licenses are requested on behalf of a researcher by the Office of Research and Economic Development. Contact the ECO at exportcontrol@uncg.edu to submit a license request to the appropriate regulatory body on your behalf. It is important to note that obtaining an export license may take several months and there is no guarantee that the U.S. government will approve a license request. Remember – no transfer of information can occur until a license is in place so allow adequate time to obtain a license!

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  1. How can a researcher keep up with export control information that is vague and seems to change?

Export law and its supporting regulations are quite complicated and the international political, military and economic situation changes daily. This is, in turn, is reflected in the commodities, defense articles and associated technical data placed on the EAR/CCL and ITAR/USML as well as the various funding agencies’ procedures in addressing the export control issue. The best advice is to revisit your information and technology periodically relative to the EAR/CCL and ITAR/USML, keep an open dialogue with your funding agency technical counterpart, and bring your questions and concerns to the ECO, Dr. Lisa Goble at exportcontrol@uncg.edu.

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