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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.
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.
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.
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.
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.
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.
EAR stands for Export Administration Regulations. The U.S. Department of Commerce, Bureau of Industry and Security (BIS) oversees the implementation of these regulations.
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).
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.
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).
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.
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.
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.
When 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.
When 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:
o 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;
o Classified, controlled unclassified, or export controlled;
o Proprietary, confidential, or sensitive;
o Specifically designed for military, intelligence, space, encryption software, or nuclear related applications;
o Data or information subject to a Non-Disclosure Agreement or that results from a project with contractual dissemination restrictions; or
o Computer software or encryption items with export restrictions or access restrictions for non-U.S. persons.
• 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.
o Presenting or discussing proprietary, unpublished, or export controlled data or information may constitute an unauthorized export.
o 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.
Your 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.
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.
To be eligible for the TMP exception, you must maintain effective control of the item or software during your travel, return the item or software to the U.S. within one year of export, and not take the item to or through embargoed countries.
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.
Determine 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.