Do I need a license to allow foreign national access to laboratory equipment?
In some cases. If we assume that Fundamental Research Exclusion (FRE) applies to the activity in which Export Administration Regulations-classified equipment is being accessed, then generally speaking, no license is required. However, there are some narrow exceptions to this rule: access to a) certain levels of advanced cryptographic functionality and source code; and b) third party proprietary “use” and “development” technology pertaining to the equipment, if it in fact is controlled.
What about foreign national access to technical data?
In some cases, this will also be licensable. As with the above scenario, unless the situation aligns to one of the Fundamental Research Exclusion (FRE) exceptions, access to technical data related to operating Export Administration Requirements (EAR) equipment does not constitute a licensable deemed export.
How does having an ITAR item in my laboratory affect foreign national (student, post doc, H1) access to it?
If you have invented the item and published the results of your invention, there is no access restriction, since it was created under the Fundamental Research/Public Domain exclusion. However, if you have purchased the item or otherwise received it from a third party (i.e., proprietary technology) and it is not already in the public domain, then access to or use of the item that allows the foreign national insight into how it works (directly or by virtue of controlled technical data) is restricted and subject to license authorization; in this case, while a license application is pending or if no license is applied for or approved, the International Traffic in Arms Regulations (ITAR) item will require a Technology Control Plan to restrict access by foreign nationals.
But can’t my foreign national students access all equipment and data since UA Little Rock operates under the Fundamental Research/Public Domain Exclusions?
No. See above. The same rule applies to International Traffic in Arms Regulations (ITAR) technical data (not self-invented) that exists in any form (soft or hard copy), conversational release of data, blue prints, manuals, etc.
What if I’m a foreign national PI who wishes to access an ITAR item as part of my fundamental research program: am I excluded from access as well?
Yes, with one exception that can be utilized with the assistance of UA Little Rock’s Export Control. There is one narrow exception under the International Traffic in Arms Regulations (ITAR) which allows a PI access to International Traffic in Arms Regulations (ITAR) technical data where the PI is a bona fide, full time employee of the university and meets other specific criteria. Assuming the terms of this exception are met, the PI is subject to the same no-transfer restrictions that a U.S. person PI is subject to. Hence, this exception is used for accessing background information only necessary to launch or conceptualize contemplated fundamental research. If the research requires the data to be shared with the research team which may include foreign nationals, the exception cannot be invoked, since only the PI may qualify under the exception. PIs wishing to explore using this exception must contact the Export Control Officer prior to accessing any such data.
Is there any problem with communicating with or assisting a foreign government with respect to our research?
It depends on the situation. If the data involves International Traffic in Arms Regulations (ITAR) technical data and we are training the government representative to use it in a defense context, this would require a “defense service” Technical Assistance Agreement (TAA). This applies even if the data is already in the public domain (this rule is currently being deregulated by State, but is not yet law); i.e., data not yet in the public domain and provided to a foreign defense organization would still constitute a defense service and require a Technical Assistance Agreement (TAA). (Note: even Export Administration Regulations (EAR)-classified technical data being provided to a foreign defense organization for a defense purpose may constitute a defense service).
Can a foreign student study in my lab that is federally funded?
It depends. If you are doing fundamental research only and there is no export-controlled information or materials being released, then you should be able to. Check with the Export Control Officer for clarification.
Do I need a technology control plan for my research if I am only doing fundamental research?
It depends. If you have elements of International Traffic in Arms Regulations (ITAR), then you might need a Technology Control Plan (TCP) in place even if you are doing fundamental research.
Can I take my laptop and other hand-held communication devices with me?
Yes, with several exceptions. If, for example, you happen to have export-controlled data on your laptop (i.e., proprietary data which is not the results of fundamental research), this would require a license, depending on its Export Administration Regulations (EAR) or International Traffic in Arms Regulations (ITAR) classification. In addition, the U.S. Government’s OFAC restrictions prohibit the export by any means of any article (including laptops or hand-held devices) to Cuba, Iran, Syria or Sudan without specific license authorization. We suggest that you complete a BAG form otherwise. If you are taking a university laptop, you must complete the TMP form.
Can I hand carry samples or other laboratory instruments?
If dual use is controlled, such items may or may not qualify under the Tools of Trade exemption, and therefore require prior classification. If International Traffic in Arms Regulations (ITAR) is controlled, a license is likely required.
Export of Technical Data, Software or Other Items
I am planning to export an item, technical data or software. What do I need to do?
Notify UA Little Rock’s Export Control Officer. The export of such items or information may require an export license and recipients of such exports must be screened against the U.S. Government’s restricted party watch-lists. Notify UA Little Rock’s Export Control Officer at least 30 to 60 days prior to your intention to export so that compliance requirements can be resolved.
Do I need to wait to export my item until I receive an export license or other authorization?
Yes. If the UA Little Rock’s Export Control Officer determines that the item requires an export license, you will need to wait until we have the license. In any case, you will need to wait until the Export Control Officer has completed watch-list screening.
Does it matter how I plan to export the item, i.e., ship by freight forwarder or courier, hand-carry, transmit data/software electronically?
No, the method of export has nothing to do with whether a license is required.
Why should I be concerned about Export Controls?
Consequences for violating Export Controls laws and regulations are severe. It is a liability not only for the University, but also for its faculty and staff to access the risk and to apply for the appropriate export authorizations.
What countries do I need to worry about in terms of U.S. sanctions?
OFAC administers a number of U.S. economic sanctions and embargoes that target geographic regions and governments. Some programs are comprehensive in nature and block the government and include broad-based trade restrictions, while others target specific individuals and entities. (Please see the “Sanctions Programs and Country Information” page for information on specific programs.) It is important to note that in non-comprehensive programs, there may be broad prohibitions on dealings with countries, and also against specific named individuals and entities. The names are incorporated into OFAC’s list of Specially Designated Nationals and Blocked Persons (“SDN list”) which includes approximately 6,400 names of companies and individuals who are connected with the sanctions targets. In addition, OFAC maintains other sanctions lists that may have different prohibitions associated with them. A number of the named individuals and entities are known to move from country to country and may end up in locations where they would be least expected. U.S. persons are prohibited from dealing with SDNs wherever they are located and all SDN assets are blocked. Entities that a person on the SDN List owns (defined as a direct or indirect ownership interest of 50% or more) are also blocked, regardless of whether that entity is separately named on the SDN List. Because OFAC’s programs are dynamic, it is very important to check OFAC’s website on a regular basis to ensure that your sanctions lists are current and you have complete information regarding the latest restrictions affecting countries and parties with which you plan to do business.
What is an embargo?
An embargo is the complete ban or prohibition of trade by one country with another. Under embargoes, no goods or services can be imported or exported from or to the embargoed nation. For example, the U.S. currently has a trade embargo with Cuba (except in limited circumstances, such as the export of food and agricultural products to Cuba).
What is a sanction?
Sanctions are the trade prohibition on certain types of products, services or technology to another country due to various reasons, including nuclear non-proliferation and humanitarian purposes. Sanctions could also be considered as “partial embargoes” as they restrict trade in certain areas. For example, the U.S. has trade sanctions with North Korea that prohibit the export of any material that would help North Korea in its Nuclear or any other mass destruction or weapons related program.
In practical terms, comprehensive trade sanctions can have practically the same effect as an embargo. For example, Cuba is the only country currently subject to a total trade embargo by the U.S. However, the U.S. also maintains comprehensive trade sanctions against N. Korea, Syria, Sudan and Iran that prohibit virtually all types of financial transactions with entities from those countries, thereby having a similar practical effect as the embargo against Cuba. Sanctions also can be more limited and target only certain groups of individuals, such as the sanctions maintained by the U.S. against former members of the Charles Taylor regime in Liberia.
Is a “deemed export” license required in order for Foreign Nationals to use non-ITAR-controlled equipment in research projects, classes, and teaching labs on campus?
No, actual use of Non-International Traffic in Arms Regulations (non-ITAR) equipment by a foreign national in the U.S. is not controlled by the export regulations. [All International Traffic in Arms Regulations (ITAR)-restricted equipment is controlled for access and may require special handling or licensing for foreign national access.] Indeed, inside the United States, any person (including foreign nationals) may purchase export-controlled commodities, and the “deemed” export rule only applies to technical information about the controlled commodity. As such, while the use of non-ITAR equipment inside the U.S. is not controlled, the transfer of technical information relating to the use (i.e., operation, installation, maintenance, repair, overhaul and refurbishing) of the equipment may be controlled in certain circumstances.
For example, if an equipment manufacturer provided to the University some confidential, proprietary information about the design or manufacture of the equipment, then the University might need a “deemed” export license to provide such proprietary information to a foreign national, especially if shipment of the item to the home country of the foreign national would require an export license. In sum, the export regulations allow, without securing a license, foreign students, researchers and visitors to use (and receive information about how to use) non-ITAR-controlled equipment while conducting fundamental research on U.S. university campuses or while studying at the institution, as long as the technical information about the controlled equipment qualifies as “in the public domain” or “publicly available.”
When would an export control license be required for a foreign national to participate in University activities?
There are three principal exclusions from the export regulations:
- Public Domain / Publicly Available Information (i.e., materials available in newspapers, libraries, or presented at publicly available conferences and trade shows, publicly available technology or software, websites accessible to the public for free and without the host’s knowledge or control of who visits the site, and published patents);
- Educational Information, i.e., “information concerning general scientific, mathematical, or engineering principles commonly taught in schools, colleges, and universities” (see ITAR §120.10(b)), and information by “instruction of a catalog course or associated teaching laboratory of an academic institution” (see EAR §734.3(b)(3)(iii)); and
- Fundamental Research (i.e., basic or applied research in science, mathematics and engineering where the resulting information is ordinarily published and shared broadly within the scientific community, and for which the researchers have not accepted restrictions for proprietary or national security reasons).
Thus, generally speaking, the export control regulations permit U.S. universities to allow foreign nationals (e.g., students, faculty, academic appointees, and non-employee participants in University programs) to participate in fundamental research projects without securing a license, provided there are no controls on publication or access restrictions. We may also share with foreign nationals in the U.S. or abroad ” ‘technology’ or ‘software’ that arises during, or results from, fundamental research and is intended to be published.” This is known as the Fundamental Research Exclusion, or the FRE. The export control regulations also permit U.S. universities to release information by instruction, also without securing a license.
However, it is important to note that even in the conduct of fundamental research and instruction, an export control license may be required if the project involves a Non-Disclosure Agreement (NDA) covering the exchange of export-controlled information, access to export-controlled technology, a non-research function (e.g., a service agreement) where there is access to export-controlled technology, or access to International Traffic in Arms Regulations (ITAR)-controlled equipment.
Do I need an export license to temporarily ship research equipment or a prototype/sample out of the U.S., for example, for purposes of field research or equipment demonstration?
In some cases, yes. The answer depends on the export control jurisdiction of the item, as follows:
Scenario A: Export Administration Regulations (EAR) dual use items: if the equipment does not require a license to export it to any country, then no, the temporary export does not require a license. If on the other hand, the item would normally require a license to export abroad, a specific license exemption such as the “Tool of Trade” exemption must apply to the temporary export or otherwise a license is required. [Note: the Tool of Trade exemption itself has numerous qualifications based on type of export, destination, and duration of export. Hence, it can only be used when all requirements are met.]
Scenario B: International Traffic in Arms Regulations (ITAR) USML items: Yes: a DSP73 license is always required, even if you are only sending or transporting the International Traffic in Arms Regulations (ITAR) equipment to international waters or airspace (i.e., not landing it in any particular country); there is no Tool of Trade exemption under the International Traffic in Arms Regulations (ITAR).
Do I really need to be concerned if the item that I plan to export is commercially available abroad?
Yes. Commercial availability does not remove an article from export jurisdiction and a potential licensing requirement.
Do I need to be concerned if I’m importing an item into the U.S., i.e., are there import compliance regulations?
Yes. All imported items are subject to U.S. Customs regulations, and may have Customs duty and reporting requirements. In addition, importing items listed on the United States Munitions List (USML) require an International Traffic in Arms Regulations (ITAR) license, unless certain specific exemptions are met.