What is an "export"?
Any item or technical data that is sent from the United States to a foreign destination is an export. "Items" include all manner of physical products, software, commodities, or technology. Examples include, but are limited to: clothing, building materials, circuit boards, components or parts, blue prints, design plans, retail software packages and technical information.
How does an export occur?
There are three main types of exports: (a) physical exports, (b) the export of technical data, and (c) deemed exports.
a. Physical exports can occur when shipping, mailing, or hand-carrying an item overseas.
b. Technical data may be exported when transmitted overseas, whether electronically (fax, email, telephone, etc.) or through a physical export of the data (e.g. Fed-Ex). Software uploaded to the internet may also be an export.
c. A deemed export occurs when transferring controlled technical data or software source code to a foreign national in the US.
It is important to note that items that were originally imported into the US from overseas and are being sent back to the country of origin are considered to be an export. Once a foreign-produced item arrives in the US, it becomes subject to US export control regulations. For this reason, export controls should always be considered before sending a piece of equipment overseas, even if simply returning it to the overseas manufacturer or supplier.
What is a "deemed export"?
A "deemed export" occurs when there is a release of technology or source code subject to the EAR or ITAR to a foreign national in the United States. In such a situation, the technology is "deemed" to be exported to the foreign national's home country since (in theory) the foreign national can take it back and re-create the technology. Under the regulations, technology is released when it is available to foreign nationals for visual inspection (such as reading technical specifications, plans, blueprints, etc.); when a technology is exchanged orally; or when a person with knowledge of the technology makes it available by practice or application. Depending upon the export control classification of the technology/source code and the nationality of the foreign national, an export license may be required.
What types of technology are export controlled?
Under the ITAR, all technical data related to military/space items is export controlled and requires an export license prior to the export of the technical data. The EAR, however, takes a more nuanced view, and controls information in the form of technical data or technical assistance that is related to the "development, " "production" and "use" of a product.
a. "Development" technology is related to all stages prior to serial production, such as: design, design research, design analyses, design concepts, assembly and testing of prototypes, pilot production schemes, design data, process of transforming design data into a product, confituration design, integration, design, or layouts.
b. "Production" technology is related to all production stages, such as: product engineering, manufacture, integration, assembly (mounting), inspection, testing or quality assurance.
c. "Use" technology refers to operation, installation (including on-site installation), maintenance (checking), repair, overhaul or refurbishing. Under the EAR, all six elements must be present in order to qualify as "use" technology. As a result, simple operation of a piece of equipment does not result in the release of "use" technology and would not require an export license under the EAR. (Note that allowing a foreign national to operate a piece of ITAR-controlled equipment would require an export license.)
What do we mean by the "fundamental research exclusion ?"
The results of fundamental research are excluded from US export control regulations. As a result, no export license is needed to export these results. Fundamental research is defined as "basic and applied research in science and engineering, the results of which ordinarily are published and shared broadly within the scientific community." This is distinguished from proprietary research and from industrial development, design, production, and product utilization, the results of which ordinarily are restricted for proprietary or national security reasons." This exclusion permits U.S. universities to allow foreign national members of their communities (e.g., students, faculty, and visitors) to participate in research projects without the need for a license. However, transferring "development", "production" or "use" technology on a controlled item may still require an export license.
What is the difference between ITAR and EAR?
The International Traffic in Arms Regulations (ITAR) restrict unlicensed exports of articles and services with military or space applications. These include items and related technology and services (found on the US Munitions List) that are specifically designed, developed, configured, adapted, or modified for a military application and, which doe not have predominant civil application, or have significant military or intelligence applicability such that control under the ITAR is necessary. Generally, any person or company who intends to export or to temporarily import a defense article, defense service or technical data must obtain prior approval from the Directorate of Defense Trade Controls (US State Department).
The Export Administration Regulations (EAR) are promulgated and implemented by the US Department of Commerce, and regulate the export of goods and services identified on the Commerce Control List (CCL). The CCL controls items that may be used for either military or commercial purposes. These so-called "dual-use" items cover a wide range of items from underwater microphones (hydrophones) to oscilloscopes to laptop computers and many others. IF a good or service is not controlled under the ITAR regulations, then it is controlled under the EAR (unless it is excluded from the regulations.)
What is OFAC and why is it important?
The Office of Foreign Assets Control is part of the U. S. Treasury Department. OFAC manages the US government's sanctions and embargo programs, as well as the list of Specially Designated Nationals (SDNs), which are entities or individuals owned or controlled by, or acting for or on behalf of, the governments of target countries, or they are associated with international narcotics trafficking or terrorism. These individuals and entities are listed on the SDN and Blocked Persons lists. As a result, US persons are prohibited from conducting specified activities with the listed individuals and entities.
If I am traveling abroad, what should I be concerned about?
International travelers commonly carry their laptops with them. They should be aware, however, that this is considered an export of their laptop. Researchers should review the data and software they may be carrying on their laptops to ensure that they are not taking out of the country any controlled technical information or software. Of particular concern is the export of military or space-related data that is subject to the ITAR regulations. The export of such technical data or software is a licensable activity. In addition, confidential or proprietary data (such as that provided by a research sponsor) may also require an export license under the EAR. In short, any equipment or data that is to be exported should be reviewed for compliance with export control regulations. .
Export regulations vary based on the country to which a researcher is traveling and the purpose for which he or she intends to use the equipment or technical data. In some cases,a license exception may apply to the export of the equipment, which could enable a researcher to take the equipment abroad without violating either the EAR or ITAR.
Excluding embargoed countries, faculty who wish to take their university-owned equipment out of the country to use in a university project that qualifies as fundamental research may be able to do so under the license exception for temporary export (TMP) if the equipment meets the requirement for "tools of trade" and is under the control of the researcher throughout the trip. Alternatively, faculty, staff or students may utilize the baggage (BAG) license exception covering personal items that are owned by the individual and intended only for their personal use. In either situation (university-owned or personally owned) the items must be returned to the US unless they are consumed or the individual is otherwise authorized to dispose of them under the regulations. Travelers should contact ORPA before using these License Exceptions, record-keeping requirements may apply.
Please define the “license exception for temporary export (TMP)”.
Laptops, cell phones, PDAs, and other digital storage devices are controlled items under the EAR. However, the TMP License Exception provides that when those items (and related technology and software) are being used for professional purposes, returned within 12 months, kept under effective control of the exporter while abroad (i.e., kept in a hotel safe or other secured space or facility), and other security precautions are taken against unauthorized release of technology (i.e., use of secure connections, password systems, and personal firewalls), then the TMP License Exception may apply. NOTE: The License Exception might not apply if items are shipped or carried to certain OFAC-sanctioned countries such as Iran, Syria, Cuba, North Korea, or Sudan. If you have any questions about the use of this TMP exception, please contact ORPA .
If I'm speaking to a foreign company or a foreign national, what should I be concerned about?
In general, the majority of exchanges between researchers off-campus can go forward without the requirement of an export license. When in doubt, stick to information that is in the public domain or information that is intended to be published. International conferences which are limited to published or publishable research are covered by the "publicly available/public domain" exclusions provided by the regulations and no export license is needed when these discussions take place during participation in these conferences. However, there are two exceptions to this rule which may require an export license: 1. Sharing information related to defense articles found on the US Munitions List (ITAR) , or 2. Presenting at a conference in a sanctioned country.
Technical information which IS likely to be ITAR-controlled, and thus require an export license before sharing with a foreign national or foreign entity, includes detailed information about "how-to" design, manufacture and test; design, manufacture, test methodology or philosophy; technical trade-off methodology or detailed alternatives, detailed test data or test procedures, detailed description of integration and test plans, or detailed schematics diagrams or interface information, as well as manufacturing or assembly processes or analytical methods of procedures.
Information that does not require an export license includes:
- general systems description of defense articles
- basic marketing information on function or purpose
- information concerning general scientific, mathematic or engineering principles commonly taught in schools, college and universities, and
- information in the public domain (i.e., available through sale at newsstands and bookstores, through subscriptions which are available without restriction to any individual who desires to obtain or purchase the published information, at libraries open to the public or from which the publican can obtain documents, through patents available at any patent office, through unlimited distribution at a conference meeting seminar, trade show, or exhibition generally accessible to the public in the United States and through fundamental research in science and engineering at accredited institutions of higher learning in the U.S. where the resulting information is ordinarily published and shared broadly in the scientific community.)
What happens if we make a mistake and don't comply with the EAR or the ITAR?
Non-compliance with the export laws and regulations can result in substantial penalties for both Princeton University and the researcher(s) involved. The federal government has the power to deny export privileges that Princeton University enjoys which could have very serious consequences on Princeton's research programs and international activities. It is very important to address any potential export control issues in advance, before there is any export of controlled equipment or technology. In the event that a violation occurs, ORPA and the General Counsel Office should be informed immediately as they are the parties within Princeton who have been designated to interface with the federal agencies.
How do I determine if equipment or technical information I want to send out of the country is controlled?
If the item is controlled, it will be found on either the Commerce Control List or the US Munitions List. Both lists are very complex and sometimes confusing. However, a researcher should never make this determination alone. ORPA personnel can assist the researcher with classifying the equipment or technical data. The researcher should contact ORPA as early as possible so that in the event a license is required for export of the equipment or technical information, it can be procured early enough not to cause a delay in the research project. ORPA staff will work closely with the researcher to determine whether the equipment, software or technical data is subject to the export control regulations and whether or not an export license will be required.
If my computer has encryption software on it, do I need to be concerned about taking it outside of the United States?
Depending on the country to which you are traveling, it is possible that there may be an export control concern. Because encryption products can be used for illegal purposes, including terrorist activity, the United States and many of the countries that you may visit may ban or severely regulate the import, export and use of encryption products. Taking your laptop with encryption software to certain countries without proper authorization could violate U.S. export law or the import regulations of the country to which you are traveling, and could result in your laptop to be confiscated, fines or other penalties. The Princeton Office of Information Technology provides information about what software is permitted and what countries may be of concern at http://www.princeton.edu/itsecurity/services/encryption/ . You should review this information before traveling abroad.
What do I do if I think I need an export license?
The first step in determining if an export license is required is to contact ORPA. Please provide the following information:
a. What: A description of what is being exported
b. Where: The destination of the equipment, software or technical data
c. Who: The name of the recipient (individual and organization) of the equipment, software or technical data.
d. Why: A description of the project, including how the exported item/data is to be used.
Depending upon the situation and the type of item/software/data that is exported, the University may decide not to seek a license, or may seek other alternatives to the export. (Per University policy, exports of ITAR-controlled equipment/data are not allowed.) In the event that the University decides to pursue an export license, ORPA staff will work with the faculty/staff member to prepare and submit the export license application.
The amount of time required to obtain an export license varies by agency (State, Commerce, Treasury), as well as the complexity of the application. In general, it may take several months to obtain a license, though some licenses may take up to a year.