What is an Export?
The term “Export”, as used in export control regulations, has an expansive meaning. Generally, an export includes any: (1) actual shipment of any covered goods or items; (2) the electronic or digital transmission of any covered goods, items, or related goods or items; (3) any release or disclosure, including verbal disclosures or visual inspections, of any technology, software or technical data to any foreign person wherever located; or (4) the actual use or application of covered technology on behalf of or for the benefit of any foreign entity or person anywhere. The official definition of export under the EAR and ITAR, 15 CFR §734.13 and 22 CFR §120.17, respectively, should be consulted when determining whether a specific act constitutes an export. By way of the regulations, exporting covered technology, items, software may preclude the participation of foreign graduate students in research without first obtaining license from the appropriate government agency.
Therefore, an export occurs whenever any item (i.e., any commodity, software, technology, or equipment) or information is forwarded, transferred or released from the U.S. to a foreign destination or to a foreign person in the U.S. or abroad. Some examples of export activities include: the shipment of items, written or oral communications, hand-carrying items when traveling, providing access to or visual inspection of equipment or facilities, and providing professional services. It can be:
- Any oral, written, electronic or visual disclosure, shipment, transfer or transmission outside of the United States to anyone, including a U.S. citizen, of any commodity, technology (information, technical data, or assistance) or software/codes.
- Any oral, written, electronic or visual disclosure, transfer or transmission to any person or entity of a controlled commodity, technology or software/codes with an intent to transfer it to a non-U.S. entity or individual, wherever located (even to a foreign student or colleague at the Rensselaer).
- Any transfer of these items or information to a foreign embassy or affiliate.
Overview of Rensselaer's Export Control Management and Compliance Plans and Procedures
The mission of Rensselaer as instituted by Stephen Van Rensselaer, founder of Rensselaer Polytechnic Institute in 1824, wrote "for the purpose of instructing persons... in the application of science to the common purposes of life" and leading to "the diffusion of a very useful kind of knowledge, with its application to the business of living." This has been a long tradition of academic freedom which includes the principles of openness in research, communication and inquiry. In general, as some of our research efforts include classified projects and/or restriction on publication and involving foreign nationals a conflict arises between Rensselaer’s traditions and current Federal Export Control Laws which creates an urgent need for the campus community to understand and comply with export laws and regulations.
Today, the export laws and regulations have several objectives: advancing the U.S. economic interests at home and abroad, preventing the proliferation of weapons of mass destruction, aiding regional stability, implementing anti-terrorism and crime controls, and protecting human rights. Therefore, depending on the research and research contract conditions, the U.S. export control system generally requires export licensing for defense items, for items that have both commercial and military applications, and for exports to sanctioned persons and destinations. It is important to understand that the export control laws are applicable to individuals, and the responsibility to comply rests with the individual.
The Rensselaer Export Control Management and Compliance Plan (EMCP) addresses these obligations promulgated by various U.S. Government Agencies with respect to actual and deemed export of research results, materials, data, and international travel, hiring and documentation. These laws and regulations relate to:
- sharing proprietary, confidential or restricted information or software code with foreign nationals at Rensselaer, within the U.S. and overseas;
- shipping or releasing tangible items overseas;
- providing technical services, know-how, or conduct of research collaboration with overseas entities;
- interacting with embargoed or sanctioned countries, organizations or individuals; and
- applying to all Rensselaer personnel including faculty, staff, research associates and fellows, post-doctoral fellows, student employees, students, and volunteers in all units of the university.
As provided by U.S. Department of Commerce’s Bureau of Industry and Security’s (BIS), the following guidelines establish the core elements of Rensselaer’s Management Plan:
- Senior management commitment to the export compliance standards for the Rensselaer organization,
- Continuous Risk Assessment of the Export Program.
- Written Export Management and Compliance Program.
- Ongoing Compliance Training and Awareness.
- Cradle to Grave Export Compliance Security involving screening of employees, international visitors and scholars, contractors, and transactions.
- Adherence to Recordkeeping Regulatory Requirements.
- Internal and External Compliance Monitoring and Periodic Audits.
- Internal Program for Handling Compliance Problems.
- Completing Appropriate Corrective Actions in Response to Export Violations.
Federal regulations, Code of Federal Regulations, Title 15, the Export Administration Regulations (EAR), and Title 22, the International Traffic in Arms Regulations (ITAR), which are related to export control, are complex and ever changing. Individuals, faculty, researchers, employees and students at Rensselaer are therefore encouraged to contact Rensselaer's Export Control Office whenever they expect to be involved with any export control issues.
It is Rensselaer’s strategy to protect Rensselaer’s Fundamental Research Exclusion (FRE) by negotiating the elimination of all contractual clauses that restrict Rensselaer’s publication rights or limits access to or participation of foreign nationals in its research. In those cases where this becomes counterproductive or the underlying research must possess such control, the terms and processes set forth in this Plan will prevail. The FRE is granted only to U.S. accredited institutions of higher learning and is paramount for Rensselaer to maintain this research status.
It is Rensselaer's intention and commitment to comply with all United States export control laws and regulations including, but not only limited to, the U.S. Departments of Commerce, State and Treasury These are principle administrative branches of the U.S. Government involved in the oversight and enforcement of Export Controls. The Administration is committed via this Export Control Management and Compliance Plan to assist the community’s understanding and interpretation of these complex set of laws and, once implemented to direct the administrative functions that will oversee the management system.
- A. The Department of State, through the Directorate of Defense Trade Controls (DDTC), administers the International Traffic in Arms Regulation (ITAR). ITAR controls the export of items that have primarily military or space applications. 22 CFR 120-130.
- B. The Department of Commerce, through the Bureau of Industry and Security (BIS), administers the Export Administration Regulations (EAR). EAR controls the export of "dual-use" items (i.e., those items having both commercial and military applications) as well as strictly commercial items. 15 CFR 730-774.
- C. The Department of the Treasury, through the Office of Foreign Assets Control (OFAC), is responsible for enforcing specific embargoes and/or sanctions. 31CFR Chapter V.
It is the objective of Rensselaer Polytechnic Institute that all personnel, including faculty, staff, visiting scientists, postdoctoral fellows, students and all other persons retained by or working at the university, comply with all U.S. laws and regulations while teaching, conducting research or providing service activities at or on behalf of the university. As such, all personnel are required to comply with the U.S. laws that regulate the export and release of items, information, technology, software and funds to destinations and persons outside of the U.S., as well as in some cases, the transfer (in country) to non-U.S. citizens at the university or within the U.S.
These current federal regulations are collectively referred to as the “Export Control laws” and have been in existence since the 1940’s to regulate the export, release or transfer (in country) from the U.S. of information, commodities, technology, or software that has been deemed strategically important to the U.S. for reasons of national security, foreign policy, or the protection of the economy and commerce. Many of the research, teaching or service activities conducted by Rensselaer faculty and staff are shielded, however, from these complex regulations by a long-standing “fundamental research exclusion” (FRE), which is discussed in more detail below.
Failure to comply with the export control laws may result in severe penalties to the Rensselaer, as well as, criminal sanctions to individual faculty, staff and students, and possible administrative sanctions resulting in potential loss of federal funding and export privileges. It is, therefore, critical to maintain compliance with these regulations even though problematic, and perhaps in conflict with Rensselaer’s philosophies of sharing information and academic freedom. The regulations are lengthy, difficult to interpret, and frequently subject to change. However, they are to be taken seriously as penalties for violations may include significant fines and jail time, and are assessed against the individual committing the violation.
Rensselaer’s faculty, staff and students members working in the following areas should become familiar with this Management & Compliance Plan and Procedures: engineering, physical and computer sciences, confidential or defense-related research, biological sciences and medicine, working with select agents and infectious materials, and/or faculty conducting research or academic collaborations with colleagues in countries that have been sanctioned by OFAC, ITAR and the EAR. Section F provides a link to the Bureau of Industry and Security's Export Control Classification Interactive Tool.
It is the purpose of this plan to outline the key features of Export Controls, examine the relationship of these regulations to activities conducted at Rensselaer, and explain how the Institute will assist its personnel to ensure compliance with Export Controls. The plan applies to all Rensselaer personnel (including but not limited to all faculty, staff, employees, students, post docs, trainees, visitors and visiting scientists) whose academic work involves, but is not limited to, the following:
- Activities or research in controlled areas (e.g., encryption technology, nuclear technology, chemical/biological weapons, military technologies).
- Activities involving the shipping or taking of equipment, technology, or software overseas.
- Activities involving teaching and research collaborating with foreign colleagues, at foreign institution, or the participating or training of foreign nationals here or abroad.
- Activities involving travel or work outside the U.S.
- Conducting tours of foreign nationals through research areas.
- Conducting research sponsored by any entity restricting publication or the participation of foreign nationals.
- Activities involving the receipt and/or use of export controlled information or technologies from other parties.
- Activities involving the hiring of foreign.
Rensselaer is conducting leading-edge research in many areas of science and engineering. It is a general practice of Rensselaer to foster a research environment conducive to the expansion of general knowledge and the open release of knowledge acquired for the public good. The Federal regulations provide a broad exemption from Export Controls for “basic” or applied academic research conducted in the U.S. that is normally published and shared with the research community. This broad exemption is commonly referred to as the "Fundamental Research Exclusion" (FRE). To qualify as “Fundamental Research,” and thus be exempt from export controls, research must be conducted free of any publication restrictions, or limitation to access or full dissemination of all research results.
In consideration of the above, however, certain activities and information that are not covered by the FRE and remain subject to the export control laws and regulations are:
- receipt by the Institute of third party export controlled information which requires that appropriate measures be taken to ensure that the information is properly safeguarded,
- travel abroad, and
- engaging in specific activities with person and entities abroad,
The above holds true even if the information relied upon is publicly available, requires review for exceptions other than the review provided for safeguarding contractual proprietary information.
Thus, it is critical that the university continues to ensure that all research results are widely and openly published and made available to the academic community in order to safeguard the "Fundamental Research Exclusion." It is important to note that even with the “Fundamental Research Exclusion,” if a university activity involves an export or deemed export, the university must document that an Export Control review and analysis was performed before the export or release of information takes place. It is also important to note that while the research results of “Fundamental Research” are exempt from Export Controls, the actual item, technology, or software under study is not automatically exempt and may have Export License requirements.
Export controls present a special challenge to U.S. research institutions. These regulations demand that the U.S. national security and the necessary safeguards it mandates be reconciled with the traditional concept of unrestricted academic freedom, which includes the right to freely publish research findings within an unfettered global academic community. Compounding those challenges are the ever-growing concerns about university compliance with the export control regulations:
- Top research universities have become a focal point for U.S. government export control compliance.
- Cutting-edge science, technology, and engineering research are increasingly intersecting national security, foreign policy, and homeland security.
- The role of the research universities are evolving to be global in scope and multidisciplinary in nature.
Therefore, any export control issue related to research being performed at Rensselaer must be addressed with the appropriate personnel in Rensselaer's Export Control Office. Because every export control issue is unique, its resolution is dependent on specific facts, it is important to contact Rensselaer's Export Control Office with any questions or concerns.
As a guide, although export controls cover a wide range of activities, the following are most pertinent to academic research:
- Research carried out at an accredited institution of higher education in the United States in areas involving controlled technologies. However, where there are no publication restrictions, and no restrictions on engaging foreign nationals, and limiting access and dissemination of research results, shall in most instances satisfy the requirements for the FRE and negate requiring an export license.
- Shipment of controlled hardware and software outside the United States may require a license under the appropriate regulations (i.e., EAR, ITAR, and OFAC). Rensselaer will apply for the export license.
Appropriate time (weeks to several months) must be allowed to obtain a license prior to any technology export, release or transfer of an item.
- Technical assistance agreements (TAA) where U.S. citizens or permanent residents are providing the training of foreign nationals where a controlled technology is involved, requires a license and Rensselaer will apply for such licenses.
- Research carrying restrictions on publications and/or the use of foreign nationals researchers or providing the RPI’s researcher with export controlled data and technology that would require a license, in either case, is generally in conflict with Rensselaer’s policy, Contacting Rensselaer's Export Control Office will help in its resolution with respect to instituting appropriate safeguards.
It is the responsibility of all Rensselaer personnel to be aware of and comply with all Export Control laws and regulations, as well as any of Rensselaer’s applicable policies and procedures. With regard to specific research projects, it is important to note that the primary compliance responsibility resides with the researcher. However, the appropriate administrative staff (e.g., Research Administration and Finance, Rensselaer's Export Control Office, Deans, Department Heads, etc.) should be notified by the researcher whenever it is believed -- or known -- that the Export Control regulations may apply. “Self-Blind” is not advisable. As always, Rensselaer will assist any member of its community in assessing their export control obligations and facilitate the acquisition of export licenses as required.
I. Research Involving the Export of Items Out of the U.S.
It is the responsibility of Rensselaer's Export Control Office to determine the export licensing requirements for shipping any item, software, technology, data, or information from Rensselaer to a destinations outside the U.S. Determining the license requirements of an item can be a complex and complicated process requiring specific facts provided by the researcher for proper classification of the item and verification and clearance of the target destination, end-use, and end-users. The final determination of whether an item requires an export license, qualifies for a license exemption, or can be exported as “No License Required” (NLR) will be made by the Rensselaer's Export Control Office in collaboration with the researcher(s). If an export license is required, Rensselaer's Export Control Office will coordinate the license application process. To be noted, there is no guarantee of a license being issued. No export, transfer, release, deemed export, or deemed re-export can take place until the required license is obtained. This procedure is in addition to the freight forwarders requirement.
II. Research Involving Disclosures, Transfers or Transfer to Foreign Persons in the U.S. (Deemed Exports)
The release or transmission of information or technology subject to Export Control to any foreign national in the U.S. including graduate students, post docs, foreign visitors and training fellows is a "Deemed Export," and is considered an export to that person's home country. In some instances, an Export License may be required before the information can be released.
Examples of "releases" to foreign nationals include providing access to controlled software, technology, or equipment by visual inspection or use, providing access via tours of facilities, providing access to technical specifications, and verbal exchanges of information. It is the responsibility of Rensselaer's Export Control Office to determine the licensing requirements involving deemed exports. No release of information or items to foreign nationals can take place until the required License is obtained.
It is imperative that the PI should review contract conditions of a proposal solicitation and review with Rensselaer's Export Control Office the proposal prior to submittal. These should be discussed with Research Administration and Finance (RAF) and Rensselaer's Export Control Office to address export control issues with respect to contract term modifications, technology transfer, personnel staffing and export control license requirements. Waiting until time of the award can create a considerable delay in the research implementation if an export license is required.
U.S. CODE OF FEDERAL REGULATIONS (CFR)
Updated March 19, 2019
Title 15Chapter VII Part 744 - CONTROL POLICY: END-USER AND END-USE BASED
§ 744.1 - General provisions.
(a) (1) Introduction. In this part, references to the EAR are references to 15 CFR chapter VII, subchapter C. This part contains prohibitions against exports, reexports, and selected transfers to certain end-users and end-uses as introduced under General Prohibition Five (End-use/End-users) and Nine (Orders, Terms, and Conditions), unless authorized by BIS.
- Sections 744.2, 744.3, 744.4 prohibit exports, reexports and transfers (in-country) of items subject to the EAR to defined nuclear, missile, and chemical and biological proliferation activities.
- Section 744.5 prohibits exports, reexports and transfers (in-country) of items subject to the EAR to defined nuclear maritime end-uses.
- Section 744.6 prohibits certain activities by U.S. persons in support of certain nuclear, missile, chemical, or biological end-uses. Section 744.7 prohibits exports and reexports of certain items for certain aircraft and vessels.
- Section 744.8 prohibits exports and reexports without authorization to certain parties who have been designated as proliferators of weapons of mass destruction or as supporters of such proliferators pursuant to Executive Order 13382.
- Section 744.10 prohibits exports and reexports of any item subject to the EAR to Russian entities, included in supplement no. 4 of this part.
- Section 744.11 imposes license requirements, to the extent specified in supplement no. 4 to this part on entities listed in supplement no. 4 to this part for activities contrary to the national security or foreign policy interests of the United States.
- Sections 744.12, 744.13 and 744.14 prohibit exports and reexports of any item subject to the EAR to persons designated as Specially Designated Global Terrorists, Specially Designated Terrorists, or Foreign Terrorist Organizations, respectively.
- Section 744.15 sets forth the conditions for exports, reexports, and transfers (in-country) to persons listed on the Unverified List (UVL) in supplement no. 6 of this part, the criteria for revising the UVL, as well as procedures for requesting removal or modification of a listing on the UVL.
- Section 744.16 sets forth the license requirements, policies and procedures for the Entity List.
- Section 744.19 sets forth BIS's licensing policy for applications for exports or reexports when a party to the transaction is an entity that has been sanctioned pursuant to any of three specified statutes that require certain license applications to be denied.
- Section 744.20 requires a license, to the extent specified in supplement no. 4 to this part, for exports and reexports of items subject to the EAR destined to certain sanctioned entities listed in supplement no. 4 to this part. In addition, these sections include license review standards for export license applications submitted as required by these sections. It should also be noted that part 764 of the EAR prohibits exports, reexports and certain transfers of items subject to the EAR to denied parties.
- Section 744.21 imposes restrictions for exports, reexports and transfers (in-country) of specified items for certain 'military end uses' in the People's Republic of China (PRC) or for a 'military end use' or 'military end user' in Russia or Venezuela.
- Section 744.22 imposes restrictions on exports, reexports and transfers to persons whose property and interests in property are blocked pursuant to Executive Orders 13310, 13448, or 13464.
(2) If controls set forth under more than one section of part 744 apply to a person, the license requirements for such a person will be determined based on the requirements of all applicable sections of part 744, and license applications will be reviewed under all applicable licensing policies.
(b) Steps. The following are steps you should follow in using the provisions of this part:
- Review end-use and end-user prohibitions. First, review each end-use and end-user prohibition described in this part to learn the scope of these prohibitions.
- Determine applicability. Second, determine whether any of the end-use and end-user prohibitions described in this part are applicable to your planned export, reexport, transfer (in-country) or other activity. See supplement no. 1 to part 732 for guidance. For exports, reexports or transfers (in-country) that are in transit at the time you are informed by BIS that a license is required in accordance with § 744.2(b), § 744.3(b), § 744.4(b) or § 744.6(b) of the EAR, you may not proceed any further with the transaction unless you first obtain a license from BIS (see part 748 of the EAR for instructions on how to apply for a license). The provisions of § 748.4(d)(2) shall not apply to license applications submitted pursuant to a notification from BIS that occurs while an export, reexport, or transfer (in-country) is in transit.
III. Travel Outside the U.S. and International Financial Transactions
When leaving the U.S., it is important to note that traveling with certain items (such as personal laptop computers running encryption software, wireless network hardware/software, and some GPS systems) may require an Export License or an Export License Exception, depending on the travel destination. In general, problematic destinations are those countries which are currently under U.S. embargo, sanction, or other trade restriction; specific examples include Iran, Cuba, Sudan, Syria, and North Korea. NOTE: The application of personal knowledge or technical experience to situations in other countries (e.g., during consulting activities) may also invoke export licensing requirements. Rensselaer personnel can receive assistance from the Rensselaer’s Export Control Office in determining whether a License is required.
U.S. sanction programs change over time, so current Sanctioned Countries information must be obtained from the Treasury Department and the BIS.
In addition to potential travel restrictions, it is also important to note that certain financial transactions with restricted individuals or entities from sanctioned or embargoed countries may be prohibited under OFAC laws and regulations (e.g., fellowship payments made to a researcher in another country). Before agreeing to provide funding to any foreign national, Rensselaer personnel should check with Rensselaer's Export Control Office for assistance in identifying potential restrictions on the transaction.
IV. Activities Involving the Receipt and/or Use of Export Controlled Information/Technology
While the vast majority of work done at the university falls under the FRE and is shielded from Export Controls, the FRE does not apply to export controlled information, technology, software, or items that the university receives from other parties nor does it apply to research conducted using such export controlled information or items. Export controlled information received from other parties cannot be openly shared with certain foreign nationals without an Export License. If a university activity involves the receipt or use of externally obtained export controlled information, items, technology, or software, the primary recipient (e.g., the Principal Investigator) must work with the Office of Human Resources and Rensselaer's Export Control Office to determine, by current citizenship status, those university personnel who can legally access the information or item before the information or item is shared.
All Institute personnel receiving Export Controlled information or items will be asked to sign the “Certification on the Handling of Export Controlled Information” acknowledging their receipt of Export Controlled information or items, and their understanding of their responsibilities and obligations regarding the safe handling and use of the information or items. In some cases, in collaboration with Rensselaer's Export Control Office, the primary recipient may be required to develop a Technology Control Plan outlining the specific procedures and safeguards that will be implemented by the researcher to ensure compliance with Export Controls. Before accepting any Export Controlled information, item, technology, or software, Rensselaer personnel should contact Rensselaer's Export Control Office for help in determining potential compliance requirements.
V. Restrictive Trade Practices and Boycotts
Participation in certain restrictive trade practices is prohibited under the EAR. The “anti-boycott” provisions of the EAR prohibit U.S. persons or businesses from participating in any non-U.S. sanctioned foreign government boycott.
Any U.S. person who receives a request that supports a restrictive trade practice, Federal Corrupt Practices Act (FCPA), or a boycott imposed by another country must promptly report the request to the Department of Commerce. Rensselaer's Export Control Office will assist university personnel in determining if the anti-boycott provisions of the EAR apply and in reporting such occurrences to the appropriate authorities.
VI. Information Technology
The review of all campus-wide computer systems and supporting peripherals, including software, hardware and storage, will be reviewed and monitored for compliance with Export Control laws and regulations.
VII. Recordkeeping and Retention Requirements
Rensselaer is required to retain a complete record of all Export Control documentation including but not limited to the Institute’s analysis of license requirements, any issued licenses, shipping documents, and any correspondence related to each export transaction. Original records must be retained for five years from the date of export, re-export, or transfer. Rensselaer's Export Control Office (in conjunction with RAF, HR, VPR, and Provost) is responsible for the retention of export records. It is the responsibility of Rensselaer personnel to forward all relevant export documentation to Rensselaer's Export Control Office for archiving.
Faculty/Researchers
Researchers have the primary responsibility for:
- Identifying research activities where there might be Export Control issues.
- Notifying the appropriate university officials of the issues.
- Working with Rensselaer's Export Control Office to accurately classify items and apply for licenses.
- Ensuring the appropriate protection of all controlled information and technology in their possession.
- Providing all export documentation to Export Control Office for archiving.
Research Administration and Finance (RAF)/Department Administrator/OTC
RAF, department administrators, and/or any other person negotiating contracts or sponsored research agreements have primary responsibility for:
- Identifying and removing from agreements any language that attempts to place restrictions on the university’s ability to publish the research or to place restrictions on the participation or access by foreign nationals.
- Identifying potential Export Control issues arising in conjunction with Material Transfer Agreements, Non-Disclosure Agreements or other licensing agreements and notifying Rensselaer's Export Control Office of such issues.
- Notifying Rensselaer's Export Control Office in the event that such restrictions are accepted.
Schools and Departments
School and department chairs, directors, and deans are responsible for:
- Administering and monitoring their faculty's existing Technology Control Plans.
- Notifying Rensselaer's Export Control Office of any issues that arise regarding the implementation or compliance with, any management plan.
- Assuring all foreign persons comply with HR or ISSSO policy and procedure for Visa application and entry to RPI.
Office of Technology Commercialization (OTC)
The Office of Technology Commercialization is responsible for:
- Identifying potential Export Control issues arising in conjunction with Material Transfer Agreements, Non-Disclosure Agreements or other licensing agreements and notifying Rensselaer's Export Control Office of such issues.
- Complying with its executed TCP.
- Soliciting for and receiving Rensselaer's Export Control Office approval for release and licensing of Rensselaer research results.
- Ensuring that the appropriate certification and/or Technology Control Plan executed for conducting the research and governing its FRE status has been honored and working with Rensselaer's Export Control Office to implement any follow on action as required.
Office of the General Counsel
The Office of the General Counsel serves as the administrator and compliance office for all Rensselaer export control matters. It oversees the Rensselaer Export Control Office providing legal advice and oversight of the Rensselaer’s export management and compliance plan covering campus wide activities.
Rensselaer's Export Control Office is responsible for:
- Monitoring and oversight of the university’s Export Control Program.
- Assisting researchers in determining Export License requirements (in collaboration with the appropriate regulatory bodies).
- Assisting in the preparation of Export License applications.
- Facilitating the development of Technology Control Plans (TCP).
- Coordinating vetting on foreign nationals visiting the university.
- Providing assistance to the Rensselaer community in all export related matters.
- Coordinating and assisting the Office of Human Resources and International Student Services with respect to verification checks, vetting and VISA applications.
- Serving as the primary site of export records retention.
Sensitive Technologies
The International Traffic in Arms Regulations (ITAR), 22 CFR Parts 120-130, as amended December 2018, includes “defense article or service”[1], software, technology that is designed, developed, configured, adapted or modified for a military application.
The Export Administration Regulations (EAR), 15 CFR Parts 730-774, as amended December 2018, is a complicated regulation and includes a detail set of specification known as the Commerce Control List (CCL) controlling dual–use and military technologies, i.e., “Item”[2], technology and software. It is advised not to rely on a simple list of products, software or technologies as it increases the risk of deriving the wrong conclusion. For example, you may think you need a license when you don't, or think you don't need a license when you really do.
The ITAR and the EAR are a different set of regulations, particularly in their international application. In the process of classifying or categorizing an “Item” or a “defense article or service”, you need to start with whether your device or technology is ITAR or EAR controlled and in that order of assessment. DO NOT "self-blind."
The following is a partial map of controlled “items." In many situations, each item/commodity may include or be applicable to another “Item”:
- Equipment to develop or produce the item;
- Materials required to produce the item;
- Software to develop, produce, or use the item;
- Technology to develop, produce, or use the item; or
- Parts, components, attachments, and/or accessories
[1] 22 CFR Part 120.6 “defense articles” and Part 120.9 “defense services”
[2] 15 CFR 772 “definitions”
- Weapons: firearms, shotguns, silencers, guns, flame throwers, ammunition
- Missiles, rockets, launch vehicles, power plants, advanced composite ablative materials
- Bombs, mines: equipment for detecting/detonating
- Explosives, propellants, incendiary agents
- Military ships and naval systems; amphibious vehicles
- Military aircraft (including surveillance, aerial mapping); inertial navigation systems, inertial measurement units (IMUs), Altitude and Heading Reference Systems (AHRS); unmanned aerial vehicles; ground effect machines
- Protective personnel equipment (including body armor, radar/infrared-resistant clothing)
- Military electronics (including underwater sound equipment, radar, military computers)
- Electronic intelligence, surveillance, or monitoring systems (and systems to counteract these)
- Infrared sensors (cameras, focal plane arrays, image intensification, night sighting)
- Carbon/carbon billets and preforms with 3+D reinforcement
- Carbon/carbon and metal matrix composites
- Chemical agents (nerve agents, vesicant agents, incapacitating agents) and their precursors; biological agents; tear gases, defoliants; equipment to handle or protect against any of these
- Spacecraft (including satellites);
- radiation-hardened integrated circuits;
- Nuclear weapons; military radiation detection/measurement
- Directed energy weapons (laser, particle beam, radio)
- Submersible vessels (manned or unmanned, tethered or untethered)
- Nuclear reactors, equipment for nuclear fuel production or heavy water production
- Composite structures or laminates
- Body armor
- Reduced observable (stealth) materials
- Human, animal, and plant pathogens, genetic elements, genetically-modified organisms
- Chemical weapons, chemicals, precursors
- Numerically controlled machine tools and optical finishing tools
- Radar, microwave systems and components
- Sensors and detectors: acoustic, optical, imaging, pressure items and associated equipment
- Aircraft and aircraft parts: UAVs; missiles, satellites
- Semiconductor devices: compound semiconductor, high temperature, radiation hardened
- Semiconductor device manufacturing equipment, materials, technology
- Telecommunications systems, surveillance devices
- Optical fiber manufacturing, materials and technology
- Encryption systems, software
- Infrared sources and detectors
- Inertial navigation systems
- Autonomous submersible vehicles
- Gas turbine engines and associated equipment and parts
- Space launch vehicles
- Unmanned aerial vehicles
Technology Alert List
The following is a list of fields specified by the Department of State as having potential "dual use" for military purposes. If you work in any of the listed areas, you may be required to give detailed information about your background and intentions as part of the Technology Alert List's Visa Mantis security check.
These include technologies associated with:
- Warheads and other large caliber projectiles
- Reactive armor and warhead defeat systems
- Fusing and arming systems.
- Electronic countermeasures and systems
- New or novel explosives and formulations
- Automated explosive detection methods and equipment
Technologies associated with production and use of nuclear material for both peaceful and military applications. Included are technologies for:
- Enrichment of fissile material
- Reprocessing irradiated nuclear fuel to recover produced plutonium
- Production of heavy water for moderator material
- Plutonium and tritium handling
Also, certain associated technologies related to nuclear physics and/or nuclear engineering. Includes materials, equipment or technology associated with:
- Power reactors, breeder and production reactors
- Fissile or special nuclear materials
- Uranium enrichment, including gaseous diffusion, centrifuge, aerodynamic, chemical, Electromagnetic Isotopic Separation (EMIS), Laser Isotope Separation (LIS)
- Spent fuel reprocessing, plutonium, mixed oxide nuclear research Inertial Confinement Fusion (ICF)
- Magnetic confinement fusion
- Laser fusion, high power lasers, plasma
- Nuclear fuel fabrication including Mixed Oxide (uranium- plutonium) fuels (MOX)
- Heavy water production
- Tritium production and use
- Hardening technology
These include ballistic missile systems, space launch vehicles and sounding rockets and Unmanned Air Vehicles (UAV) (including cruise missiles, target drones, and reconnaissance drones). The listed technologies are associated with rocket systems and UAV systems. The technology needed to develop a satellite launch vehicle is virtually identical to that needed to build a ballistic missile.
Rocket System and Unmanned Air Vehicle (UAV) Subsystems
Propulsion technologies include solid rocket motor stages, and liquid propellant engines. Other critical subsystems include re-entry vehicles, guidance sets, thrust vector controls and warhead safing, arming and fusing. Many of these technologies are dual-use. Technologies include:
- Liquid and solid rocket propulsion systems
- Missile propulsion and systems integration
- Individual rocket stages or staging/separation mechanism
- Aerospace thermal (such as superalloys) and high- performance structures
- Propulsion systems test facilities
Navigation, Avionics and Flight Control Useable in Rocket Systems and Unmanned Air Vehicles (UAV)
These capabilities directly determine the delivery accuracy and lethality of both unguided and guided weapons. The long- term costs to design, build and apply these technologies have been a limiting proliferation factor. Technologies include those associated with:
- Internal navigation systems
- Tracking and terminal homing devices
- Accelerometers and gyroscopes
- Rocket and UAV and flight control systems.
- Global Positioning System (GPS)
The technology used to produce chemical and biological weapons is inherently dual-use. The same technologies that could be applied to develop and produce chemical and biological weapons are used widely by civilian research laboratories and industry; these technologies are relatively common in many countries. Advanced biotechnology has the potential to support biological weapons research. In the biological area, look for interest in technologies associated with:
- Aerobiology (study of microorganisms found in the air or in aerosol form)
- Biochemistry
- Pharmacology
- Immunology
- Virology
- Bacteriology
- Mycology
- Microbiology
- Growth and culturing of microorganisms
- Pathology (study of diseases)
- Toxicology
- Study of toxins
- Virulence factors
- Genetic engineering, recombinant DNA technology
- Identification of nucleic acid sequences associated with pathogenecity
- Freeze-drying (lyophilization)
- Fermentation technology
- Cross-filtration equipment
- High "DOP-rated filters" (e.g., HEPA filters, ULPA filters)
- Microencapsulation
- Aerosol sprayers and technology, aerosol and aerosolization technology
- Spray or drum drying technology
- Milling equipment or technology intended for the production of micron-sized particles
- Technology for eliminating electrostatic charges of small particles
- Flight training
- Crop-dusting, aerosol dissemination
- Unmanned aerial vehicle (UAV) technology
- Fuses, detonators, and other munitions technology
- Submunitions technology
- Computer modeling of dissemination or contagion
- Chemical absorption (nuclear-biological-chemical (NBC) protection)
In the chemical area, look for:
- Organo-phosphate chemistry
- Neurochemistry
- Chemical engineering
- Chemical separation technology
- Pesticide production technology
- Pharmaceutical production technology
- Chemical separation technology
- Toxicology
- Pharmacology
- Neurology
- Immunology
- Detection of toxic chemical aerosols
- Chemical absorption (Nuclear-Biological-Chemical (NBC) protection)
- Production of glass-lined steel reactors/vessels, pipes, flanges, and other equipment
- Aerosol sprayers and technology
- Flight training
- Crop-dusting, aerosol dissemination
- Unmanned Aerial Vehicle (UAV) technology
- Fuses, detonators, and other munitions technology
- Submunitions technology
- Computer modeling of dissemination
Satellite and aircraft remote sensing technologies are inherently dual-use; increasingly sophisticated technologies can be used for civilian imagery projects or for military and intelligence reconnaissance activities. Drones and remotely piloted vehicles also augment satellite capabilities. Key-word associated technologies are:
- Remote sensing satellites
- High resolution multi-spectral, electro-optical and radar data/imagery
- Imagery instruments, cameras, optics, and synthetic aperture radar systems
- Ground receiving stations and data/image processing systems
- Photogrammetry
- Imagery data and information products
- Piloted aircraft
- Unmanned Air Vehicles (UAV)
- Remotely-piloted vehicles; and drones
Advanced computers and software play a useful (but not necessarily critical) role in the development and deployment of missiles and missile systems, and in the development and production of nuclear weapons. Advanced computer capabilities are also used in over-the-horizon targeting, airborne early warning targeting, Electronic Countermeasures (ECM) processors. These technologies are associated with:
- Supercomputing, hybrid computing
- Speech processing/recognition systems
- Neural networks
- Data fusion
- Quantum wells, resonant tunneling
- Superconductivity
- Advance optoelectronics
- Acoustic wave devices
- Superconducting electron devices
- Flash discharge type x-ray systems
- Frequency synthesizers
- Microcomputer compensated crystal oscillators
The metallic, ceramic and composite materials are primarily related to structural functions in aircraft, spacecraft, missiles, undersea vehicles, and propulsion devices. Polymers provide seals and sealants for containment of identified fluids and lubricants for various vehicles and devices. High density graphite is used in missile nosetips, jet vanes and nozzle throats. Selected specialty materials (i.e., stealth and the performance of these materials) provide critical capabilities that exploit electromagnetic absorption, magnetic, or superconductivity characteristics. These technologies are associated with:
- Advanced metals and alloys
- Non-composite ceramic materials
- Ceramic, cermet, organic and carbon materials
- Polymeric materials
- Synthetics fluids
- Hot isostatic
- Densifications
- Intermetallic
- Organometals
- Liquid and solid lubricant
- Magnetic metals and superconductive conductors
Technologies associated with cryptography and cryptographic systems to ensure secrecy for communications, video, data and related software.
Lasers have critical military applications, including incorporation in guided ordinance such as laser guided bombs and ranging devices. Directed energy technologies are used to generate electromagnetic radiation or particle beams and to project that energy on a specific target. Kinetic energy technologies are those used to impart a high velocity to a mass and direct it to a target. Directed energy and kinetic energy technologies have potential utility in countering missiles and other applications.
Look for technologies associated with:
- Atomic Vapor Laser Isotope Separation (AVLIS)
- Molecular Laser Isotope Separation (MLIS)
- High Energy Lasers (HEL) (i.e., laser welders)
- Low Energy Lasers (LEL)
- Semiconductor lasers
- Free electron lasers
- Directed Energy (DE) systems
- Kinetic Energy (KE) systems
- Particle beam, beam rider, electromagnetic guns, Optoelectronics/electro-optics (Europe)
- Optical tracking (i.e., target designators)
- High energy density
- High-speed pulse generation, pulsed power
- Hypersonic and/or hypervelocity
- Magnetohydrodynamics
Sensors provide real-time information and data, and could provide a significant military advantage in a conflict. Marine acoustics is critical in anti-submarine warfare; gravity meters are essential for missile launch calibration. Look for technologies associated with:
- Marine acoustics
- Optical sensors
- Night vision devices, image intensification devices
- Gravity meters
- High-speed photographic equipment
- Magnetometers
Marine technologies are often associated with submarines and other deep submersible vessels; propulsion systems designed for undersea use and navigation and quieting systems are associated with reducing detectability and enhancing operations survivability. Look for technologies connected with:
- Submarines and submersibles
- Undersea robots
- Marine propulsion systems
- Signature recognition
- Acoustic and non-acoustic detection
- Acoustic, wake, radar and magnetic signature reduction
- Magnetohydrodynamics
- Stirling engines and other air independent propulsion systems
Technologies associated with:
- Artificial intelligence
- Automation
- Computer-controlled machine tools
- Pattern recognition technologies
Expertise in construction or design of systems or technologies necessary to sustain modern urban societies. (PLEASE NOTE: Urban Planning may not fall under the purview of INA section 212 (a)(3)(a), U.S. technology transfer laws, or any other U.S. law or regulation. However, Urban Planning is a special interest item and posts are requested to refer such visa application requests to CA/VO/L/C for further review.) Look for technologies/skills associated with:
- Architecture
- Civil engineering
- Community development
- Environmental planning
- Geography
- Housing
- Landscape architecture
- Land use and comprehensive planning
- Urban design
Public Domain Exceptions
Information that's available to the public is excluded from export controls.
The ITAR defines "public domain"(§120.11): “Public domain means information which is published and which is generally accessible or available to the public." Public domain information is excluded from control as ITAR technical data.
EAR part 734.3(b)(3) refers to “publicly available technology and software" and does not use the expression "public domain." Publicly available technology and software are excluded from control under the EAR — except 5D002 encryption software (although 5D002 object code whose corresponding source code is publicly available is considered to be publicly available).
Although EAR and ITAR share the idea that publicly available information should not be subject to export controls, they differ in how that information can be made publicly available. Information in the scope of the ITAR can be made publicly available only by the means described in 22 CFR §120.11, or with the explicit authorization of the State Department. Information in the scope of the EAR can be made publicly available by a person who is not contractually restricted from doing so. For example, the researcher might be under a non-disclosure agreement which prevents the release of commercial sponsor’s proprietary information, or a government-funded research that contractually restricts the distribution of proprietary information and/or research results.
Further, the regulatory use of "public domain," is not the same as used in discussing intellectual property (IP) rights (copyright, patent, trademark) that have expired (or never existed). This is different interpretation from an export control perspective. For example, a piece of software can be copyrighted (so is not "public domain" from an IP perspective), but is published and generally accessible (so it is "public domain" from an export control perspective) by the public..
"Open source" is not "public domain" in the IP sense, because it typically has an owner who provides it (often for free) under a license granting a wide range of rights and obligations to the user. However, “open source” can be considered to be "public domain" from the export control perspective.
Do Not Self-Blind
It is important when assessing whether or not a technology transfer is subject to export control to not become entrapped in the concept of “self-blinding.” Self-blinding is ignoring a potential export control issue by justifying an unjustified exception to apply, or assuming fundamental research within one’s own interpretation of his/her laboratory work efforts with respect to what will be delivered as a result of the research or engineered solution. An example can occur when developing a product concept and arguing it is basic engineering research in contradiction to the EAR and ITAR definitions, 15 CFR 734.8 and 22 CFR 120.11(a)(8). Additionally, to set ones objective to manage export interpretation and assessment to side step the need to apply for time consuming licenses, TCP, etc. is self-blinding, e.g., is diminished by justifying a controlled Item or a technology as EAR 99 when it is a controlled “item”. This is the wrong objective and can result in an expensive violation. The right objective is to assess and develop the correct classification for the items, and once that is done properly, to seek the least restrictive (legal) paths for complying. Examples are working with a person from a country that is not under export control licensing requirements according to the EAR Country Chart, 15 CFR Supplement #1 to Part 738, or finding an exception that is permissible under the circumstances. It is the best overall effort to proceed legally and responsibly and working to reserve the export license application as an effort of last resort.
Do not self-blind 15 CFR Part 732 Supplement Number 3 (a)(3).