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Export Control Overview and Basics


Overview

Export Controls regulations are federal laws that prohibit the unlicensed export of certain types of technologies or information for reasons of national security, protection of trade or due to economic and trade sanctions. These regulations also restrict the transfer of this same material to foreign nationals within the US, which the government refers to as a “deemed export.” (For more information on this subject see Nov 11, 2004 COGR presentation entitled “Export Controls and Universities: Licensing Research?” by Robert Hardy.) If university research involves such specified technologies, these regulations may require the university to obtain prior approval (i.e., license) from the appropriate agency prior to allowing foreign nationals to participate in the research, engage in collaborative research with a foreign institution and/or share research results with persons who are not United States citizens or permanent residents.  The consequences of violating these regulations can be quite severe, ranging from loss of research contracts to monetary penalties to jail time for the individual violating these regulations. It is the policy of Louisiana Tech University (La Tech) to comply with all US export control laws and regulations. Accordingly, La Tech has developed an export control compliance program and procedures to enable La Tech personnel and students to conduct their university business in accord with these laws.

Basics 

These laws are promulgated and enforced by 3 governmental agencies. 

1) US Department of Commerce (DOC)Bureau of Industry and Security (BIS) - Export Administration Regulations (EAR)

EAR regulates “dual use” products & technologies, that is products that that are designed for commercial use but have the potential for military application. An export license is required before a transfer of any such items/information can occur.  The license requirements are dependent upon an item's technical characteristics, the destination, the end-use, and the end-user, and other activities of the end-user. The first step in establishing whether a dual-use item (i.e. commodity, software or technology) requires a license is to determine the product’s Export Control Classification Number (ECCN) on the Commerce Control List (CCL). ECCNs identify reasons for control which indicate licensing requirements to certain destinations. If your item is a dual use item falling under DOC 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 most situations. (An export license may be required, however, if the proposed export is to an embargoed country.)

An example of an exercise one might conduct to determine if the item they are planning to transport to a foreign country would be prohibited under EAR is shown on the following page

2) US Department of State - International Traffic in Arms Regulations (ITAR)

ITAR regulates military items such as munitions and defense articles found on the United States Munitions List (USML). Unlike EAR where need for the license is dependent upon the nature of the technology and country of export, this is not the case with ITAR. If it appears on USML then it is subject to ITAR. Foreign nationals from all countries are prohibited from participation in research involving such items, unless an export control license is obtained first. The USML covers the following 21 categories of items

I - Firearms
II - Artillery Projectors
III - Ammunition
IV - Launch Vehicles, Guided Missiles, Ballistic Missiles, Rockets, Torpedoes, Bombs and Mines
V - Explosives, Propellants, Incendiary Agents, and Their Constituents
VI - Vessels of War and Special Naval Equipment
VII - Tanks and Military Vehicles
VIII - Aircraft, Spacecraft and Associated Equipment
IX - Military Training Equipment
X - Protective Personnel Equipment
XI - Military and Space Electronics
XII - Fire Control, Range Finder, Optical and Guidance and Control Equipment
XIII - Auxiliary Military Equipment
XIV - Toxicological Agents and Equipment and Radiological Equipment
XV - Spacecraft Systems and Associated Equipment
XVI - Nuclear Weapons Design and Test Equipment
XVII - Classified Articles, Technical Data and Defense Services Not Otherwise Enumerated
XVIII - Reserved
XIX – Reserved
XX - Submersible Vessels, Oceanographic and Associated Equipment
XXI - Miscellaneous Articles

3) In addition, the Treasury Department's Office of Foreign Assets Control (OFAC) administers and enforces economic and trade sanctions that have been imposed against specific countries based on reasons of foreign policy, national security, or international agreements. Full descriptions of all countries currently subject to sanctions are available here. Generally speaking, universities typically encounter OFAC issues less frequently than those arising from ITAR and EAR. However, collaborative research activities with nationals from OFAC-sanctioned countries may be viewed by OFAC as prohibited services. Before engaging in collaborations with foreign nationals or exporting research articles overseas, you should first check the OFAC’s list of embargoed entities and persons to determine if any controls exist on the exports to the intended recipients(s). 

 

H: Intellectual Property:
Presentation on Deemed Export Controls

November 18th, 2017

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