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Export Control Basics


What are export controls and how do they impact you?

Export control are the United States laws and implementing regulations that control the electronic transfer of shipments overseas or to foreign nationals in the US of certain information, technologies, and commodities. The federal government enacted export control laws for the purpose of protecting the U.S. economy, promoting trade goals, and restricting the export of technology and goods that could contribute to the military potential of U.S. adversaries.

Other countries also maintain similar export control regimes requiring export licenses for certain items.

Export means an actual shipment or transmission of items out of the United States. (EAR 734.2 (b))

Examples:

    1. Physical shipment
    2. Hand carry items or laptop overseas
    3. Email
    4. Posting or pulling from a FTP site
    5. Accessing a server overseas
    6. File Sharing with a foreign person or colleague overseas
    7. Telephone
    8. Fax
    9. Visual inspection by a foreign person in the US or abroad of controlled technology
    10. Actual use or application of controlled technology on behalf of or for the benefit of a foreign entity or person anywhere.

The laws are implemented by the U.S. Department of Commerce through its Export Administration Regulations (referred to as "EAR") which focus on dual use items and through the U.S. Department of State through its International Traffic in Arms Regulations (referred to as "ITAR") which focus primarily on military items and technology.

There are two main lists of "controlled items":

If the commodity, information, or technology is on either list, a license or license exception has to be secured prior to shipment overseas or release to a foreign national, even in the U.S. Export Control will assist researchers in the review and licensing process.

Additionally the US government maintains trade embargoes through the Office of Foreign Asset Controls (OFAC). If you are traveling or shipping to or collaborating with researchers in an embargoed country contact Export Control to review licensing requirements. Varying levels of embargoes are in place for the following countries: Cuba, Iran, North Korea, Sudan, Syria or the Balkans, Belarus, Burma (Myanmar), Cote d'Ivoire (Ivory Coast), Democratic Republic of Congo (DRC), Iraq, Lebanon, Liberia, Libya, Somalia, Yemen or Zimbabwe.

Export Control Items and Technologies

This is a general list of the particular areas called out in the export control lists. Contact Export Control for a more in depth review to see if a license or license exception is required prior to export.

  • Life Sciences (biotech and biomed engineering) and Chemicals (including medical center and health sciences research)
  • Nanotechnology and materials technologies – ex. composites and ceramics (ex., various nanotech and sensor programs)
  • Advanced computing, microelectronics and telecommunications
  • Information security and encryption
  • Applied physics – ex. lasers and directed energy systems
  • Sensors, sensor technology, imaging
  • Advanced avionics and navigation (EAR), and Space-related technologies and prototypes (ITAR exclusive jurisdiction)
  • Marine technologies
  • Sophisticated machine tool technologies and bearings
  • Robotics
  • Items or technology specially developed for the military

Good News, the Special Case for Universities

Fortunately, the EAR and ITAR export control regulations allow for "publicly available, fundamental research" results to be excluded from the regulatory requirements for approvals or licenses, this does not apply for physical shipments which need to be reviewed on a case by case basis. For University-based research there are three ways that technical information may qualify for an exemption from the foreign national deemed export licensing requirements and transfer of information outside the U.S. Contact Export Control with any questions on these exemptions and exclusions.

Publically Available

If the research is publically available, both sets of export regulations have exemptions in place.

  • Information is "published" when it becomes accessible to the public in any form including:
    • Publication in periodicals, books, print, electronic, or other media available for general distribution
    • Readily available at public libraries or at university libraries
    • Patents and published patent applications available at any patent office
    • Release at an open conference, meeting, seminar, trade show, or other open gathering held in the U.S. or anywhere, except a country that is itself a sanctioned or embargoed country.
  • Caveats
    • No equipment or encrypted software involved
    • No reason to believe information will be used for Weapons of Mass Destruction
    • U.S. government or funding entity has not imposed any access & dissemination controls as a funding condition

Educational Information

Educational instruction in science, math, and engineering taught in courses listed in catalogues and associated with teaching laboratories of academic institutions.

Fundamental Research Exclusion

The Fundamental Research exclusion (FRE) exempts most on-campus university research from export control licensing requirements

  • Covers: (1) information (not items); (2) resulting from “basic & applied research in science & engineering; (3) at an “accredited institution of higher education”; (4) “located in the United States” ; (5) that is “ordinarily published & shared broadly within the scientific community”
  • Caveats:
    • Does not apply to sponsor’s or 3rd party export-controlled or proprietary information
    • Applies only to Fundamental Research information – not to physical items or services such as training; Also, does not apply to development information
Foreign National Licensing-Deemed Exports

The term foreign national refers to everyone other than a U.S. citizen, a permanent resident alien, and certain protected individuals such as refugees and those with asylum. The EAR and ITAR regulations state that a transfer of technology or technical data to a foreign person is "deemed" to be an export to the home country of the foreign person. This is referred to as a "deemed export". Even a discussion with a foreign researcher or student in a campus laboratory is considered a "deemed export." Export controls preclude the participation of all foreign nationals in research that involves restricted technology without first obtaining a license or license exception from the appropriate government agency.

For More Information

Division of Research Affairs
Export Control

Gateway Center, Rm 3518
San Diego State University
5250 Campanile Dr., MC 1933 
San Diego, CA 92182

 
Phone: 619-594-0758
Fax: 619-594-4109
Email: zhovda@mail.sdsu.edu

 

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