Export control regulations are group of federal regulations designed to advance the national security, foreign policy, and economic interests of the United States. These regulations have been around since the early 20th century. In 1949 the Export Control Act (implemented by the Export Administration Regulations – EAR) was enacted, and in 1976, the Arms Export Control Act became law (implemented by the International Traffic in Arms Regulations – ITAR). Since 9/11, scrutiny of compliance with export control regulations has increased significantly.
- Exports generally cover four main areas:
- shipment of controlled physical items, such as scientific equipment or a biological material, that require export licenses from the United States to a foreign country;
- procurement of controlled items, data or services that are subject (fall within the federal regulations) to subject to the Export Administration Regulations or the International Traffic in Arms Regulations
- verbal, written, electronic, or visual disclosures or transfer of controlled scientific and technical information (including technical data) related to export controlled items to foreign persons (everyone other than a U.S. citizen, a permanent resident alien, and certain ‘protected individuals’ (refugees and those with asylum), including any company not incorporated in the United States). Such a transfer is termed a “deemed export” and is regulated because the transfer is “deemed” to be to the country where the person is a resident or a citizen;
- interaction with or travel to certain sanctioned or embargoed countries for purposes of teaching or performing research.
- I intend to hire a foreign employee or invite an international visitor, with F-1, H-1B, J-1, or H-1B1 visas
- I need to ship items internationally.
- I will be traveling outside of the United States.
- I want or plan to have foreign person(s) participate in the research.
- I want to collaborate with a researcher or institution from outside the United States.
- My project has contractual restrictions on publishing, proprietary information, or foreign person participation.
- I will be receiving nuclear, military or space related information, technical data, equipment or software.
- I will be researching subjects related to nuclear, chemical, biological, weaponry, missiles, unmanned vehicles, or encryption technologies.
- My foreign employee or international visitor’s proposed work falls under my currently approved research protocol, e.g.human subjects, animal care and use, recombinant DNA/biohazardous material use.
Most export transactions by UMBC do not require a government license or other written approval from the U.S. government prior to export. Some transactions are prohibited due to the end-use, end-user, or country involved. Only exports that the US government considers “controlled” under the EAR and ITAR may require licenses. Exports usually are license controlled for one or more of the following reasons:
- The technology or information has actual or potential military applications or raises economic protection issues
- Government concerns about the destination country, organization, or individual
- Government concerns about the declared or suspected end use or the end user of the export
Most research and teaching on campus in the United States can qualify for exclusions and/or exemptions from the export control regulations. Below is a summary of the exclusions. Please click on the link for more details.
No license is required to disclose to foreign persons information within the United States that is “published and which is generally accessible or available to the public through fundamental research in science and engineering at universities where the resulting information is ordinarily published and shared broadly in the scientific community.”
The Public Domain Exclusion applies to information and research results already published and actually available through:
- Libraries, bookstores, newsstands;
- Trade shows, meetings, and/or seminars open to the public;
- Websites open to the public; or
- Courses listed in the university catalog of a general nature.
No license is required to share with foreign persons “information concerning general scientific, mathematical or engineering principles commonly taught in universities or information in the public domain.”
No license is required to share controlled technical information with a foreign person who Is a full-time, bona fide university employee and has a permanent address in the US while employed, provided that the person is not a national of certain countries; and is advised in writing not to share controlled information with other foreign persons.
Exclusions and exemptions do not apply to all University activities. Export controls apply if the topic of the research appears on the U.S. Munitions List (ITAR) or is identified under one of the nine Categories in the Commerce Control List (EAR). Research under the EAR covers dual use items that are designed for commercial purposes that may also have a military application. Included are goods, test equipment, materials and the software/technology for operation. Research under the ITAR is limited to military items found of the USML. ITAR is inclusive of space related technologies and technical data that relate to defense articles and services.
UMBC researchers should focus on the similarities between the two regulatory structures. Under both sets of rules, controlled technologies cannot be “exported” to individuals who are foreign nationals except under a license issued by the Federal Government. Additionally, other activities may be subject to sanctions and embargoes; that is, the export or transaction is prohibited with certain countries, entities and individuals.
The following should be reviewed for export compliance:
- Presentation/discussion of previously unpublished research at conferences and meetings where foreign person scholars may be in attendance
- Research collaborations with foreign persons and technical exchange programs
- Visits to your lab by foreign scholars
- Shipping materials or equipment outside the United States
- Working with sponsor’s proprietary, restricted or classified information
- Projects performed abroad by UMBC personnel
- Furnishing defense services to a foreign person within the United States
- Transacting with embargoed or sanctioned countries or parties (including financial transactions)
- Creating, receiving or working with encryption software
- Providing use technology regarding controlled equipment to a foreign person
In addition, any of the following will raise export control questions for your project:
- Restrictions on publishing research results (other than normal patent reviews)
- Restrictions on researcher participation (faculty, student, or others) based on country of origin or citizenship
- Indications from the sponsor or others that export-controlled information or technology will be furnished for use in the research
- The physical export of controlled goods or technology
The routine “use” of controlled equipment or technology by foreign persons (e.g., using it in the ordinary way specified in the user manual for the “operation, installation [including on-site installation], maintenance [checking], repair, overhaul and refurbishing” of a product), in such a manner that does not disclose technical information about the equipment beyond what is publicly available, does not require a license.
Export regulations control the transfer, release or disclosure to foreign persons in the United States of controlled commodities. The “deemed export” regulation states that a transfer of source code or “technology” (Export Administration Regulations [EAR] term) or “technical data” (International Traffic in Arms Regulations [ITAR] term) to the foreign person is “deemed” to be an export to the home country of the foreign person.
If the technology available to the foreign person does not meet these attributes, then it is not “use” technology for deemed export licensing purposes. A license will then be required if a foreign person is “using” the equipment in such a way as to access technical information beyond what is publicly available.
Examples when licenses are required
- Items specifically identified in any of the “categories” on the United States Munitions List
- Defense services – furnishing assistance (including training) to non-US persons in the design, development, engineering, manufacture, production, assembly, testing, repair, maintenance, modification, operation, demilitarization, destruction, processing or use of defense articles or that are subject to the International Traffic in Arms Regulations (ITAR), or furnishing ITAR-controlled technical data to non-US persons, whether in the United States or abroad
- Items subject to the Export Administration Regulations (EAR) that are specifically identified on the Commerce Control List (CCL), with restrictions identified in the list and other non-list-based restrictions (embargo end user, end use, etc.)
The Department of Commerce says that certain biological materials are “dual-use” (see the CCL in Category 1 at ECCNs 1C351 through 1C360) as well as genetic elements and genetically modified organisms that contain DNA associated with the pathogenicity of these biological materials. Severe civil and/or criminal penalties apply to international shipments without an export license of ANY export controlled pathogen or genetic material containing the controlled DNA. Commerce has further guidance as well as a “quiz” to test your knowledge – for more information, go to Deemed Exports and Fundamental Research for Biological Items
Impact on Research at UMBC
Using technology or equipment that falls under EAR99 classification in research is acceptable. The Commerce Department has guidance stating this technology cannot be transferred to Cuban nationals or members of the government of Iran. EAR99 classified items must be protected from export to the terrorist-supporting countries, currently including Cuba, Iran, North Korea, (North) Sudan, and Syria. It’s generally acceptable to use EAR-controlled equipment in research on campus, if the technology is limited to that necessary to operate the export controlled equipment (not the technology required for operation, installation, maintenance, repair, refurbishing and overhaul), without restriction on nationalities able to participate in the research. It must be protected from export to countries that will vary depending on its export classification.
Technical data that is “in the public domain” under ITAR (22CFRPart120.10(a)(5)) and Part 120.11(a)) or “publicly available” under EAR (15CFRPart734(b)(3), including “fundamental research”, is not subject to deemed export controls. Accordingly, the compliance plan at the University of Maryland Baltimore County is based largely upon insuring that research results generated at the University meet the standards for “publicly available” thereby avoiding the necessity of securing a license prior to dissemination of information to foreign persons involved in the research, including graduate students, post doctoral scholars, and visiting scientists. For University-based research, there are three different ways that the technical information may qualify for an exemption from the deemed export regulations. It is exempt if it:
- Is published or disseminated (as described at 15CFR734.7 and 22CFR120.11(a)(1) through (7))
- Arises during, or results from, fundamental research (as described at 15CFR734.8 and 22CFR120.11(a)(8)), or
- Is educational information (as described at 15CFR734.9 and 22CFRPart120.10(a)(5) released by instruction in catalog courses or associated teaching laboratories of academic institutions.
The Export Control Decision Flowchart is a tool that you can use to determine whether a certain transaction or transfer is likely, or unlikely, to require further analysis for export controls. UMBC is required to exercise due diligence, and this Decision Flowchart was designed to assist in determining whether a transaction or transfer is likely or unlikely to require further analysis for export controls. Remember that export controls may apply when an item, information or software is being sent outside US borders, OR when it is being shared with “foreign persons or entities” in the US.
Use this flowchart to help determine whether or not further export control analysis is required for this transaction or project. These questions ask about sharing, shipping, transmitting or transferring any items, information or software. If the responses to these questions indicate that no export control license is needed (green box), the responses and conclusion should be documented and maintained in the transaction and/or project file.
When in doubt, and when the responses indicate that export control analysis is needed (the “red box” on the flowchart), contact the ORPC. Violations of these export control regulations can lead to significant individual civil and criminal penalties.
Contact the staff in the Office of Research Protections and Compliance (firstname.lastname@example.org; 5-2737) well before there are plans to procure equipment, technology or materials to use that would require a license and/or before plans to involve a foreign person who will have access in a research project. We will be happy to assist in the review of requirements, perform restricted party checks and provide guidance on the next steps to take.