instruction in catalog courses and associated teaching laboratories of academic institutions (except for certain encryption technology) is not controlled by EAR. Information concerning general scientific, mathematical or engineering principles commonly taught in schools, colleges and universities, is not included in the definition of technical data subject to the ITAR. In general, OFAC sanctions do not affect education in the US, although some online education is affected. OFAC’s guidance is that actively delivering online courses is providing a service, which is not generally authorized, and requires a specific authorization for students in or ordinarily resident in Cuba, Iran, and Sudan. However, university courses in which the content is released to the public as information and informational material are not subject to those controls.
Information available in public libraries, public reading rooms, public document rooms, public archives, or public data banks are not controlled as are most university courses, thus enabling participation by international students and faculty. To be sure that a course dealing with advanced or sensitive technology qualifies for educational exclusion, first determine which export control regime has jurisdiction over the course’s technology, and then apply the criteria for that regime.
an actual shipment or transmission of items, services, or technical data subject to either the EAR or the ITAR out of the United States, or the release of technology or software source code (EAR), or technical data (ITAR), to a non-U.S. person in the United States. Technology, software, or technical data is “released” for export through:
- Visual inspection by a foreign national of U.S. origin equipment and facilities
- Oral exchanges of information in the United States or abroad
- Transfer or shipment via any means (physical or electronic) to a foreign entity
- Provision of a service, or the application to situations abroad of personal knowledge or technical experience acquired in the United States
or EAR, (15 CFR §730–774) are promulgated by the Department of Commerce to regulate the export of most items not controlled by the ITAR (defense items). "Items" includes products; equipment or materials required to make controlled items; software and information required to develop, produce, or use controlled items. Items that are not controlled by the EAR include items controlled by another U.S. government department or publicly available information, informational materials, software and technology.
Export Control Classification Number (ECCN) – a five-character alphanumeric classification used under the EAR to identify items on the Commerce Control List.
document stating that the relevant government agency has granted the licensee the authority to export, re-export a specified commodity, technology, or software to a specific country; or perform other regulated activity as specified on the application.
EAR defines “national” as a person owing permanent allegiance to a state. EAR’s foreign national is comparable to the ITAR’s "foreign person". Under ITAR, a foreign person is any person who is not a U.S. citizen, a lawful permanent resident alien (“green card holder”), a refugee, a protected political asylee, or someone granted temporary residency under amnesty or Special Agricultural Worker provisions. The definition also includes any foreign government or any foreign corporation or entity that is not incorporated or organized to do business in the U.S.
basic or applied research in science and engineering where the resulting information is ordinarily published and shared broadly in the scientific community.
- Under the EAR -- university research normally will be considered as fundamental research unless the university or its researchers accept sponsor restrictions on the publication of scientific and technical information resulting from the project or activity. Research at companies or outside the US can qualify as fundamental research when there are no restrictions on publishing the results. The EAR specifically permits limited prepublication reviews by research sponsors to prevent the inadvertent divulging of proprietary information provided to the researcher by the sponsor or to ensure that publication will not compromise the patent rights of the sponsor.
- Under the ITAR -- only research at accredited institutions of higher learning in the U.S. can qualify as fundamental. University research will not qualify as fundamental research if: (1) the university or its researchers accept any restrictions on the publication of scientific and technical information resulting from the project or activity; or (2) the research is federally funded and specific access and dissemination controls protecting information resulting from the research have been accepted by the university or the researcher.
Under the EAR, U.S. universities performing fundamental research may allow foreign members of their communities (e.g., students, faculty, and visitors) to participate in research projects involving export-controlled technical information on campus in the U.S. without a deemed export license, as long as the technical information used in the project is publicly available. Further, technical information resulting from fundamental research may be shared with foreign colleagues abroad and shipped out of the United States without securing a license.
University research will not be considered fundamental research if:
The University or its researchers accept other restrictions on the publication of scientific and technical information resulting from the project or activity, or
The research is funded by the U.S. Government and specific access and dissemination controls protecting information resulting from the research are applicable.
the International Trafficking in Arms Regulations (ITAR), 22 CFR §120-130 ITAR regulations are under jurisdiction of the Department of State and control the export of articles, services, and related technical data whose predominant application is defense, as determined by the State Department. These “defense articles,” “defense services,” and related “technical data” are listed on the United States Munitions List (USML). In addition, since 1999 satellites and spacecraft have been subject to the ITAR, regardless of application.
Office of Foreign Assets Control (OFAC) – a part of the U.S. Department of Treasury that administers and enforces economic embargoes and trade sanctions based on U.S. foreign policy and national security goals against targeted foreign countries, terrorists, international narcotics traffickers, and those engaged in activities related to the proliferation of weapons of mass destruction.
under the ITAR, information that is published and which is generally accessible or available to the public:
- through sales at newsstands and bookstores;
- through subscriptions that are available without restriction to any individual who desires to obtain or purchase the published information;
- through second-class mailing privileges granted by the U.S. government;
- at libraries open to the public or from which the public may obtain documents, including most university libraries;
- through published patents;
- through unlimited distribution at a conference, meeting, seminar, trade show, or exhibition, generally accessible to the public, in the United States;
- through public release in any form after approval by the cognizant U.S. government department or agency; and
- through fundamental research in science and engineering at accredited institutions of higher learning in the United States where the resulting information is ordinarily published and shared broadly in the scientific community. Public domain information is excluded from ITAR technical data controls.
For information in the scope of the ITAR, release by any other means requires State Department authorization.
under the EAR, software and technology (except 5D002 encryption software) that (i) are or will be published; (ii) arise during, or result from, fundamental research; (iii) are educational; (iv) are included in certain patent applications. Publicly available software and technology are excluded from EAR controls — but note that published 5D002 encryption software remains subject to the EAR, except publicly available 5D002 encryption object code when the corresponding source code is publicly available. For software and technology in the scope of the EAR, it may be made publicly available by a person with the right to do so without further authorization from the Commerce Department (except 5D002 encryption software).
information is “published” (and therefore not subject to export controls) when it becomes generally accessible to the interested public in any form, including:
- publication in periodicals, books, print, electronic, or other media available for general distribution (including websites that provide free uncontrolled access) or to a community of persons interested in the subject matter, such as those in a scientific or engineering discipline;
- readily available at libraries open to the public or at university libraries;
- patents and published patent applications available at any patent office; and
- release at an open conference, meeting, seminar, trade show, or other open gathering held in the U.S. (ITAR) or anywhere (EAR).
(Note: published 5D002 encryption software remains subject to the EAR, except publicly available 5D002 encryption object code when the corresponding source code is publicly available.
acceptance in research and development of any prohibition or approval authority over publication or any other dissemination of research results, except, sponsor or collaborator may include provisions for review of results, with a short review period to remove some sponsor/collaborator business proprietary or pre-patentable information.
refers to an actual shipment or the transmission of items subject to export regulations from one foreign country to another foreign country. For the purposes of the U.S. EAR, the export or re-export of items subject to the EAR that will transit through a country or countries to a new country, or that are intended for re-export to the new country, are deemed to be exports to the new country.
individuals and entities with whom the university and its employees may be prohibited by law, or that require a license or other government approval, to export to or engage in controlled transactions. 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).
defined as university research, development, or testing subject to: (i) publication restrictions; (ii) access and dissemination controls; (iii) federally funded research with contract-specific national security restrictions; (iv) accepting third-party controlled items or information; or (v) providing access to, or defense services on, a defense article. Restricted research is subject to EAR and ITAR regulations, and a license or other government approval may be required for foreign national participation.
countries designated by OFAC as having limited or comprehensive trade sanctions imposed by the United States for reasons of anti-terrorism, nuclear non-proliferation, narcotics trafficking, or other reasons.
similar to the ITAR's "defense service", under the EAR, instruction, skills training, working knowledge, and consulting services, which may involve the transfer of technical data. The ITAR provides for Technical Assistance Agreements, which authorize transferring technical data and providing defense services.
refers to information required for the design, development, production, manufacture, assembly, operation, repair, testing, maintenance, or modification of controlled articles. This includes information in the form of blueprints, drawings, plans, instructions, diagrams, photographs, etc. It may take forms such as blueprints, plans, diagrams, models, formulae, tables, engineering designs and specifications, and manuals and instructions written or recorded on other media or devices such as disk, tape, or read-only memories. This term does not refer to the controlled equipment or commodity itself, or to the type of information contained in publicly available user manuals. The “deemed export” rules apply to transfer of such technical information to foreign nationals inside the United States
any specific information and know-how (whether in tangible form, such as models, prototypes, drawings, sketches, diagrams, blueprints, manuals, or software—or in intangible form, such as training or technical services) that is required for the development, production, or use of a good, but not the good itself.
a plan prepared by the Principal Investigator and approved by the Office of Research Compliance and Assurance, for ensuring that there will be no unlawful export of restricted commodities, defense articles, software, data, technology, or technical data in a Sponsored Project without an appropriate government approval.
includes articles, services, and related technical data designated as defense articles and defense services pursuant to the Arms Export Control Act (AECA).
a natural person who is a lawful permanent resident (green card holder) or a protected individual (citizen or national of the U.S., special agricultural worker, admitted refugee or person granted asylum); or any entity (corporation, business association, partnership, etc.) incorporated in the U.S., or any federal, state, or local governmental entity.