Office of Research and Project Administration

1. What is an "export"?

2. How are exports transferred?

3. What is a "deemed export"?

4. What do we mean by "the fundamental research exclusion?"

5. What is the difference between ITAR and EAR?

6. What is OFAC and why is it important?

7. If I'm traveling abroad what should I be concerned about?

8. Please define the “license exception for temporary export (TMP)”.

9. If I'm speaking to a foreign company or a foreign national, what should I be concerned about?

10. What happens if we make a mistake and don't comply with the EAR or the ITAR?

11. How do I determine if equipment or technical information I want to send out of the country is controlled?

1. What is an "export"?

   Any item that is sent from the United States to a foreign destination is an export. "Items" include commodities, software or technology, such as clothing, building materials, circuit boards, automotive parts, blue prints, design plans, retail software packages and technical information.

2. How are exports transferred?

   There can be physical exports such as a mailing or shipping an item, or carrying an item while traveling, even if it is out of the country temporarily. Fax transmissions to a foreign destination are exports, as well as information transmitted out of the country by e-mail transmissions or telephone. Software uploaded to or downloaded from an Internet site may be an export. Even a foreign-origin item exported from the United States, transmitted or transhipped through the United States, or being returned from the United States to its foreign country of origin is considered an export.

3. What is a "deemed export"?

   A "deemed export" can occur when there is a release of technology or source code subject to the EAR or ITAR to a foreign national in the United States - it is "deemed" to be an export to the home country of the foreign national.

4. What do we mean by "the fundamental research exclusion?"

   Fundamental research means "basic and applied research in science and engineering, the results of which ordinarily are published and shared broadly within the scientific community, as 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." The "exclusion" relates to the fact that no license is needed to share these results, even if they relate to items or technology that are otherwise controlled. Of significance to research institutions is that this exclusion permits U.S. universities to allow foreign members of their communities (e.g., students, faculty, and visitors) to participate in research projects involving export-controlled information on campus in the U.S. without the need for a license.

5. What is the difference between ITAR and EAR?

   The Export Administration Regulations (EAR) are promulgated and implemented by the U.S. Department of Commerce, and regulate the export of goods and services identified on the Commerce Control List (CCL). Their primary purpose is to provide authority to regulate exports, to improve the efficiency of export regulation, and to minimize interference with the ability to engage in commerce.

   The International Traffic in Arms Regulations (ITAR) designate the articles and services deemed to be defense articles and defense services and to control their export and import. These include the items and related technology and services (found on the Munitions List) that are specifically designed, developed, configured, adapted or modified for a military application and, which do not have predominant civil application, or are specifically designed, developed, configured, adapted, or modified for a military application and have significant military or intelligence applicability such that control under the ITAR is necessary.

6. What is OFAC and why is it important?

   OFAC stands for the Office of Foreign Assets Control which is part of the U. S. Treasury Department. OFAC is the management arm of the U.S. Government with respect to the 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 both the SDN and Blocked Persons lists. Consequently, persons subject to the jurisdiction of the United States will know that they are prohibited from interacting with those individuals and entities, and that they must block all property within their possession or control in which the individuals and entities have an interest.

7. If I'm traveling abroad what should I be concerned about?

   Researchers commonly carry their laptops with them, both across campus and around the world. They need to be aware, however, that this means they are exporting their laptops. This is true not only when they take the laptop abroad, but also when they allow a person in a foreign country to use the laptop or allow a foreign national access to the laptop in the United States. Researchers should review the software and data they may be carrying on their laptops to ensure that they are not taking out of the country any controlled software or technical information. The same applies to global positioning systems (GPS). Laptops and GPS devices, and their underlying software, are covered by the EAR and, in some cases, the ITAR. 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 laptop or GPS. However, a licensing exception may apply to the export of a laptop or GPS, which potentially would enable a researcher to take the equipment abroad without violating either the EAR or ITAR. Excluding embargoed countries, faculty who wish to take their laptops 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 laptop meets the requirement for "tools of trade" and is under the control of the researcher, or the baggage (BAG) license exception covering personal items that are owned by the researcher and intended only for their personal use. You must contact ORPA before using either of these License Exceptions, as they are subject to record-keeping requirements.

8. Please define the “license exception for temporary export (TMP)”.

   Laptops, 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.  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 to confirm, as this exception requires that records be kept of its use.

9. 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 where the sole purpose of the meeting is to present research findings that have been or are intended to be published. Provided they do not concern detailed information regarding defense articles that are found on the Munitions List, 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, where there is the possibility of exchange with a foreign national or foreign entity of technical information not yet published regarding a defense article found on the Munitions List, the researchers should be aware of the following:

   The U.S. Export Regulations (ITAR) only permits unlicensed export of:

   1. general systems description of defense articles
   2. basic marketing information on function or purpose
   3. information concerning general scientific, mathematic or engineering principles commonly taught in schools, college and universities, and
   4. 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.)

   Technical information which falls within the meaning of the first categories above and is NOT ITAR-controlled includes top-level drawings, top-level narrative descriptions or summaries of performance requirements, key subsystems, design capabilities or manufacturing facilities. Likewise, top-level description of reliability analyses, top-level block diagrams, top-level description of operational modes, top-level equipment layout drawings, and top-level predictions of power usage or consumption do not require a license.

   However, 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.

10. What happens if we make a mistake and don't comply with the EAR or the ITAR?

    Ignorance of the export control laws is no defense and non-compliance with the export laws and regulations can result in substantial penalties for both Princeton University and the researcher(s) involved. In addition, the federal agencies have the power to take away exporting privileges from Princeton University which could have very serious consequences on Princeton's research programs. It is very important to address any potential export control issues in advance, i.e., 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.

11. 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 Munitions List. Both lists are very complex and sometimes confusing, however, and a researcher should never make this determination alone. ORPA has access to the powerful search engine VISUAL COMPLIANCE, that is specifically geared to the CCL and the ML and that can quickly identify the areas within the CCL and/or the ML that might contain the equipment or technology. If a researcher wishes to make a determination, he 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 so that there is no delay in the research project. ORPA staff will work closely with the researcher to identify the technical search terms most appropriate to the equipment or technology and to discuss with the researcher whether any items found on the lists describe these items.

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