What is Export Control?
Export Control refers to a collective body of U.S. laws and regulations that govern the transfer of information, commodities, technology, and software considered to be strategically important to the U.S. in the interest of national security, economic, and/or foreign policy concerns. Export control laws regulate the shipment or transfer, by whatever means, of controlled items, software, technology, or services out of U.S. or the release to foreign nationals in the U.S.
These laws and regulations have been in existence for many years. Compliance with export control laws by institutions of higher education has come under scrutiny in recent years. Non-compliance can result in severe monetary and criminal penalties against an individual and the university, as well as possible loss of research contracts and governmental funding.
Oklahoma State University is committed to complying with all export control laws and regulations. The information provided here is to help you understand export control laws and how they apply to you and the university community. It is the responsibility of the OSU employee to maintain compliance with current export control regulations.
OSU Export Control concerns for faculty, staff, and students
Although most of the research and technology development OSU conducts is exempt from U.S. export control regulations, we must still comply with the regulations.
An export can occur though a variety of means, including: shipping, oral communications, written documentation (including e-mails), and visual inspections of technology, software, and/or technical data to any non-U.S. citizen, whether in the U.S. or abroad.
How do these regulations affect you? Export controls affect three main areas at OSU: research, travel outside the U.S., and shipping. See details for each area below.
- ResearchIf you are doing fundamental research and the results of the research will be in the public domain (see definitions below), you probably will not have any export control issues unless you have a foreign national working with controlled (found on the Commerce Control List or the U.S. Munitions List) proprietary technology in conjunction with your research project.
You may also be working on a project that has controlled proprietary technology or the government has placed access controls on the technology, but you do not have foreign nationals involved in your research. In this situation you must have a Technology Control Plan in place that limits access to only U.S. persons (see definition under “General Information”).
Fundamental Research, as used in the export control regulations, includes basic or applied research in science and/or engineering at an accredited institution of higher learning in the United States where the resulting information is ordinarily published and shared broadly in the scientific community. Fundamental research is distinguished from research which results in information which is restricted for proprietary reasons or pursuant to specific U.S. Government access and dissemination controls. University research will not be deemed to qualify as Fundamental Research if: (1) the University or research 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; or (2) the research is federally funded and specific access and dissemination controls regarding the resulting information have been accepted by University or the researcher. The citation for the official definition of Fundamental Research under the EAR is 15 CFR § 734.8. The ITAR citation is 22 CFR § 120.11.
Public Domain (22 CFR 120.11) means 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.
- Foreign TravelForeign travel raises several issues for university personnel. Where a person travels, what items are being taken, what services are being provided, with whom they are working, and the purpose of the trip may present export control concerns. Please be aware that information and/or technology you plan to take with you could be subject to export control regulations.Key Points:
- The destination of a traveler determines what export controls or regulations apply. This is particularly important if traveling to a sanctioned or embargoed country. Review the Office of Foreign Assets Control (OFAC) information.
- Prior to discussing technology or making a presentation abroad, verify that the technology, information, and/or commodities qualify for exclusion. Review Export Administration Regulations (EAR).
- For hand-carrying items with you as you travel outside of the U.S., (i.e., tangible item(s), technology, commercial software, and/or encryption code to be used in a foreign country), you need to document that the item(s), technology, commercial software, and/or encryption code to be taken do not require a license and qualify as exempt or an exception. The is designed to be used for documentation purposes. Regulations require that this documentation must be kept for five (5) years. Fill out the form prior to travel, keep a copy for your files, and forward a copy to Ivory Chandler.
Regardless of whether a technology or information falls into one of the above categories, travel to certain sanctioned countries would require a license from the Office of Foreign Asset Control (OFAC), or could, in fact, be denied. OFAC also has regulations regarding money transactions and the exchange of goods and services in certain sanctioned countries.
You need to be aware that an export license or other governmental approval may be required for your laptop computer, software, or other equipment depending on your destination. There are exceptions for “tools of the trade” but these exceptions depend on the equipment and the country of your destination. For example, encryption software is subject to special regulations and more stringent license requirements. Also, the “tools of the trade” exception does not apply to controlled technology.
A license is required if you are taking an item found on the Department of State’s U.S. Munitions List (USML). A license is required if you are providing a defense service (includes training) to a foreign person whether here in the U.S. or abroad. A license is required if you are supplying controlled (on the CCL) technology to a foreign person during a closed presentation or conference.
The Department of State, OFAC, and BIS have various lists of persons and entities that we are prohibited from doing business with. In other words, we should not be providing them with a defense service (includes training), giving money to these people or organizations, or providing them with controlled (on the CCL) proprietary technology. We can be fined by the government agencies if we do business with any person or entity found on these lists. Links to the Department of State, BIS, OFAC, denied entities/persons lists, and the “Countries of Concern” can be found here.
- ShippingFor shipping items outside the U.S., use a verified and experienced freight forwarder. Ask questions. Be sure they have sent freight to your intended country of destination. Feel confident in their ability. Do not risk losing your equipment on the way there and back. Not all countries do business the way it is done in the U.S.
Creating a Technology Control Plan (TCP)
If your project is identified as involving or potentially involving technology/information that is export-controlled under either the U.S. State Department’s International Traffic in Arms Regulations (ITAR) or the U.S. Department of Commerce’s Export Administration Regulations (EAR), you must develop and submit a Technology Control Plan for review, approval and certification.
Glossary of Export Control Terms
- What is an export?An export is an actual shipment or transmission of items, services or technical data subject to the EAR or the ITAR out of the U.S., or release of technology, software, or technical data subject to either EAR or ITAR to a foreign national in the U.S. Technology, software, or technical data is "released" for export through:
- Visual inspection by foreign national of U.S. origin equipment and facilities;
- Oral exchanges of information in the U.S. or abroad;
- Transfer or shipment via any means (physical or electronic) to a foreign entity;
- Providing a service, or the application to situations abroad of personal knowledge or technical experience acquired in the U.S.
- What is a "deemed" export?Release of technology or source code subject to the EAR to a foreign national in the U.S. is deemed to be an export to the home country of the foreign national under EAR. "Technology" is specific information necessary for the development, production, or use of a Commerce Department product controlled for export. "Use" is defined as operation, installation (including on-site installation), maintenance (checking), repair, overhaul and refurbishing.
- Who is a "foreign national?"A foreign national is anyone who is not a US person. A foreign national also means any foreign corporation, business association, partnership or any other entity or group that is not incorporated to do business in the US. Foreign nationals may include international organizations, foreign governments and any agency or subdivision of foreign governments such as consulates.
- Who is a "U.S. person"?A U.S. person is a citizen of the United States, a lawful permanent resident alien of the US, (a Green Card holder), a refugee or someone here as a protected political asylee or under amnesty. US persons also include organizations and entities, such as universities, incorporated in the US. The general rule is that only US persons are eligible to receive controlled items, software or information without first obtaining an export license from the appropriate agency unless a license exception or exclusion is available.
- What are export controls?Export controls are federal laws and regulations that restrict the flow of certain materials, devices and technical information related to such materials and devices outside the U.S. The two main are the Export Administration Regulations (EAR) 15 CFR subchapter C parts 730-774 and the International Traffic and Arms Regulations (ITAR) 22 CFR subchapter M parts 120-130. However, the Office of Foreign Asset Control (OFAC) has authorization over certain aspects and should be consulted.
- What is considered fundamental research?Fundamental research means research in science, engineering, or mathematics, the results of which ordinarily are published and shared broadly within the research community, and for which the researcheds have not accepted restrictions for proprietary or national security reasons.
- What is EAR?EAR stands for Export Administration Regulations. The U.S. Department of Commerce, Bureau of Industry and Security (BIS) oversees the implementation of these regulations.
- What technologies are subject to the EAR?Generally, technologies subject to the EAR are those which are in the U.S. or of U.S. origin, in whole or in part. Technologies which tend to require licensing for release to foreign nationals are also dual-use (i.e., have both civil and military applications) and are subject to one or more control regimes, such as the Wassenaar Arrangement, Nuclear Suppliers Group, Missile Technology Control Regime and the Australia Groups (chemical/biological items).
- What types of information are not subject to the EAR?Publicly available information: generally accessible to the interested public in any form.
- Fundamental research: basic and applied research in science and engineering where the resulting information is ordinarily published and shared broadly within the scientific community.
- Educational information: released by instruction in catalog courses and associated teaching laboratories of academic institutions.
- Patent applications: information contained in a patent application prepared wholly from foreign origin technical data where the application is sent to a foreign inventor to be executed and returned to the U.S. for subsequent filing with the U.S. Patent and Trademark Office.
- What does the term EAR99 signify?Items subject to the EAR that are not specifically listed on the Commerce Control List are designated as EAR99. These items are often, but not always, exportable without a license under the designation No License Required (NLR).
- What is ITAR?ITAR stands for International Traffic and Arms Regulations. The U.S. Department of State, Directorate of Defense Trade Controls (DDTC) oversees the implementation of these regulations.
- What is subject to ITAR?Generally, these items are inherently military in nature (i.e., they are used or created with the sole intention of military application or the military has deemed an item to be such). The key terms are "defense articles" and "defense services." Any defense article, service, or related technical data found to be on the U.S. Munitions List (USML) requires an export license to be exported (i.e., given to a non-U.S. person). Exceptions to the licensing requirement are very rare.
- What is OFAC?OFAC stands for the U.S. Treasury Department's Office of Foreign Asset Control. They are responsible for administering and enforcing economic and trade sanctions to protect foreign policy and national security goals.
- Inspection and safeguarding items taken abroadWhen leaving or returning to the U.S., customs officials are authorized to search or retain items, technology and software including digital cameras, cell phones, media players, and disk drives to look for violations of laws, including export control regulations.
Safeguard all your items and data appropriately and recognize that if you do not want foreign officials or others to have access to your items, do not take them with you.
- Restrictions on the items you can take with youWhen you leave the U.S., even temporarily, for teaching, research, or to attend a conference, everything you take with you is an export, including electronic devices, software and data. This applies to hand-carried items, materials, and devices. All exports should be screened by the Export Control Officer to evaluate export license requirements.
- Research data and information that qualifies for the fundamental research, public domain/publicly available or educational instruction exclusions to the export control regulations can be taken and openly shared or discussed without the need for an export license (e.g., published, educational or research information intended for public distribution, such as a paper being presented at a conference, commercial software, and patent applications). Prior to travel, verify that your technology, data or information is categorized as fundamental research, public domain/publicly available or educational instruction information.
- An export license is not usually required for most commercially obtained items and equipment (laptop computers, tablets, cell phones, PDAs containing software), unless you are traveling to or through an embargoed or sanctioned country. For sanctioned countries, an export license may be required.
- Without an export license or license exception, you cannot take with you any commodities,
software, or technology that are:
- Articles, technical data or software controlled under the International Traffic in Arms Regulations (ITAR). For example, a blueprint, document or drawing on your electronic device that is considered ITAR controlled technical data cannot be taken out of the U.S. without a license;
- Classified, controlled unclassified, or export controlled;
- Proprietary, confidential, or sensitive;
- Specifically designed for military, intelligence, space, encryption software, or nuclear related applications;
- Data or information subject to a Non-Disclosure Agreement or that results from a project with contractual dissemination restrictions; or
- Computer software or encryption items with export restrictions or access restrictions for non-U.S. persons.
- Restrictions on your activities while in your destination country
- Limit presentations, seminars and discussions to topics that are not related to export
controlled commodities, software, or technology unless that information has been published,
is currently publicly available or in the public domain, or qualifies as fundamental
- Presenting or discussing proprietary, unpublished, or export controlled data or information may constitute an unauthorized export.
- Open seminars are, most likely, appropriate unless they occur in an embargoed or sanctioned country or involve restricted parties.
- Sharing fundamental research or publically available information with foreign colleagues is allowed as long as the colleagues are not prohibited from receiving the information by the federal government (e.g., Specially Designated Nationals, employees or representatives of the government of a sanctioned country, or restricted parties).
- Engaging in research, field work or course instruction outside of the U.S. may not qualify for the fundamental research exclusion and U.S. export control regulations may apply until the work is published or is made publicly available. Prior to providing course instruction or disclosing information resulting from research or field work when outside of the U.S., determine if the information is subject to export control laws and regulations.
- Payments to persons, businesses or organizations may be prohibited by export control laws and regulations. OSU must not enter into contracts, conduct business, or otherwise participate, directly or indirectly, in any financial activities with any entity or person found on any government issued restricted, blocked, or denied party lists. This may include international subcontracts, purchases from international vendors or payments to research participants.
- Limit presentations, seminars and discussions to topics that are not related to export controlled commodities, software, or technology unless that information has been published, is currently publicly available or in the public domain, or qualifies as fundamental research.
- Restrictions based on the laws of the destination countryYour destination countries have their own import and export control regulations that could affect how you can use the exported items in their country or could restrict your ability to take them out of their country. Once outside or when returning to the U.S., your items and electronic devices may be searched or seized in accordance with the laws of the foreign country.
- License exceptions for temporary exports/reexport (TMP or BAG)Items such as commodities, software, and technology taken or sent outside of the U.S. may require an export license pursuant to export control laws and regulations. An item's export control classification may mean no license is required to export the item to your destination country. If a license to export your items is not needed, then pursuing a license exception is unnecessary.
The Export Administration Regulations (EAR) provide an export license exception for the temporary export or reexport of certain items, technology, or software (electronic devices, laptops, cellphones, and PDAs) for professional or personal use as long as regulatory criteria are met. The EAR allow an export license exception for the temporary export (TMP) of qualified "tools of trade". "Tools of trade" is defined as items that are used for UND business, conferences, trade shows, etc. The TMP exception only applies to UND property.
The TMP exception includes items, software and technology that can be:
- Hand carried during your travel (e.g., laptop computers, PDAs, cellular phones);
- Packed in your luggage or baggage; or
- Shipped either before you travel or while you are present in your destination country.
An export license exception for the temporary export of personal baggage (BAG) is also available.
Neither the TMP nor BAG exception applies to:
- Satellite or space-related equipment, components, or software regulated by the EAR;
Technology associated with high-level encryption products;
- Defense items, technical data, or software regulated by the ITAR;
- Nuclear or atomic energy items regulated by the Nuclear Regulatory Commission or Department of Energy; or
- Shipping or hand-carrying items, technology, or software to countries designated in Country Group E:1 of the EAR.
- Restrictions on international travel based on the destination countryDetermine if your travel destination is listed as an embargoed or sanctioned country by the U.S. Department of Treasury, Office of Foreign Assets Control. Their list of embargoed or sanctioned countries can be found here: Sanctions Programs and Country Information.
International travel for export purposes is travel outside of the United States. Within this context, the United States means the 50 States, including offshore areas within their jurisdiction, the District of Columbia, Puerto Rico, and all territories, dependencies, and possessions over which the United States exercises any powers of administration, legislation, and jurisdiction.