The following Q & A’s pertain to commonly encountered export control questions and scenarios. Together, these Q & As serve as a practical guide to complying with BGSU’s export control program. For a more detailed explanation of U.S. export control requirements please refer to the Federal Regulations.
The Q & As are divided into the following 7 categories:
- Exporting Commodities, Technical Data or Software Abroad
- Laboratory Access to EAR- and ITAR-controlled Items and Data
- Special Concerns at Facilities Subject to User Agreements
- Complying with the Fundamental Research Exclusion off Campus
- Travel Abroad
- International Collaborations and Conducting Research Abroad
- Office of Foreign Assets Control (OFAC) Requirements
1. Exporting Commodities, Technical Data or Software Abroad
Notify the Export Control Administrator at least 30 to 60 days prior to your intention to export so that compliance requirements can be resolved. Export recipients must be screened against the U.S. Government’s restricted party watch-lists. In addition, the export of an item, data or software may require an export license.
Yes. If the item requires an export license, you will need to wait until BGSU receives an approved license from the appropriate government agency. Even where a license is not otherwise required, you will need to wait until completion of watch-list screening. Screening itself normally only requires approximately 48 hours to process. Absent any screening concern and no license requirement, an export can proceed immediately.
No; the method of export has nothing to do with whether a license is required.
Licenses are normally issued within 30 to 60 days from the date an application is submitted. Normally and, subject to certain exceptions, it is not difficult to obtain a license. Upon obtaining the necessary details about the export (e.g., nature of the item, purpose/end use, destination, and end user) our Export Compliance Administrator prepares and files the appropriate type of license application (dual use EAR license or defense categorized ITAR license). The license application is filed through one of the on-line U.S. Government agency portals, and the Export Control Administrator tracks the government’s approval process. Licenses are normally issued within 30 to 60 days.
Note that where the Government finds the proposed export to have particular national security, biological safety, or nuclear or missile technology implications, the applicable Government agency can deliberate longer over the issuance of the license, referring it for inter-agency review or requesting BGSU to provide specific details. Hence, it is critical to allow sufficient time prior to intended export, for the license application to be processed.
Where the license application is intended to cover the provision of a defense service under the ITAR, (i.e. the release in any manner of ITAR technical data to a foreign national or training or assistance to a foreign national using ITAR data), this type of ITAR license called a Technical Assistance Agreement or TAA, can take longer to prepare and longer to process
No. All export licenses and authorization carry provisos or conditions which are the Government’s specific restrictions or limitations on the export activity. For example, the Government may require that the recipient of the export provide a Letter of Assurance that they will not transfer or re-export the item beyond the originally licensed country destination. Limitations on the duration of the license, or on access by foreign nationals from certain countries, may also apply. Failure to adhere to these provisos results in an enforceable export violation.
Not necessarily. Under the EAR dual use regulations, license requirements are on an item by item, country by country basis. As such, your particular item may or may not require a license. Under the ITAR defense regulations, exports to all countries presumptively require a license and, in some cases, depending on the country, the State Department will not, as a matter of policy, issue a license. For example, China is per se a prohibited country under the ITAR USML regulations; the State Department will not consider issuing a license of a USML item to China. There are approximately 10 other countries that are likewise prohibited under ITAR. Therefore, it is essential that all exports be cleared for export control.
In some cases, yes. The answer depends on the export control jurisdiction of the item, as follows:
Scenario A. 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. The “Tool of Trade” exemption covers temporary exports of “usual and reasonable kinds and quantities” of items for use abroad by the exporter, provided that the items remain under the “effective control” of the exporter and are utilized for a lawful enterprise or undertaking. In addition, this exemption has other qualifications based on type of export, destination, and duration of export. Hence, it can only be used when all requirements are met.
Scenario B. ITAR USML items: Yes; a DSP73 license is always required, even if you are only sending or transporting the ITAR equipment to international waters or airspace (i.e. not landing in any particular country). There is no Tool of Trade exemption under the ITAR.
You will likely need to obtain two licenses.
The ITAR item will require a DSP license, depending on the purpose of the export; the EAR item may require a separate license if controlled under the EAR. EAR items incorporated into ITAR items may lose their EAR identity, resulting in the entire item getting classified under ITAR. ITAR items incorporated into EAR-controlled or otherwise non-licensable items (No License Required) render the entire assembly ITAR, by virtue of the “see-through” rule under the ITAR regulations.
When you “release” ITAR technical data (i.e. information or software not in the public domain about design, use, modification, repair, etc. of a defense article) to a foreign national (including foreign national students or visitors on campus, off campus, or abroad), this constitutes a defense service, requiring a license prior to such activity. In this context, ITAR technical data can be “released” merely by the provision of visual access, computer access, or oral disclosure of the data, even where it is not being utilized by the foreign national.
In addition, providing technical assistance or training to a foreign national in the U.S. or abroad on design, development, engineering, use, modification, repair, etc., of a defense article constitutes a defense service (even if the data provided are in the public domain), as does providing any technical data to a foreign military organization in the U.S. or abroad, regardless of whether the data or information being transferred is EAR or ITAR-governed or in the public domain. In these instances, it is necessary to first obtain a Technical Assistance Agreement (TAA) from the State Department prior to releasing the data or conducting the activity (assuming that a TAA can be obtained, which, for some countries, such as China, it cannot).
Not necessarily. Where you are teaching or discussing any item in the public domain, including something that clearly has a defense application, or you have self-invented such information during the course of fundamental research with the intention to publish it, in general there is no license requirement. However, a license requirement does apply when you are releasing ITAR technical data in the manner of a defense service; i.e., providing technical assistance or training to a foreign national in the U.S. or abroad on design, development, engineering, use, modification, repair, etc., of a defense article (even if the data provided are in the public domain); or providing any technical data to a foreign military organization in the U.S. or abroad to train or advise on a military objective, regardless of whether the data or information being transferred is EAR or ITAR-governed or in the public domain. Likewise, a license requirement would also apply when you are exporting ITAR technical data that you have received from a sponsor (government or industry) or research collaborator (government, industry, or research institution) under a restricted agreement i.e. it is explicitly export controlled, and does not qualify as fundamental research intended for the public domain.
When in doubt, refer the evaluation to the Export Control Administrator. Typically, BGSU’s research instruments are not categorized under the USML; however, as noted earlier, they may be dual-use controlled under the EAR and hence require a license. Where an item is specifically designed or modified for defense purposes as defined under the USML, it is likely ITAR-classified. When an item is procured, this designation may be referenced in the vendors’ Operation Manual or sales documentation, though not always. Research institutions transferring ITAR items during the course of collaborative research do not always identify such items as ITAR controlled, unless the Material Transfer Agreement so requires. Bottom line: you cannot tell whether an item is EAR or ITAR controlled merely by looking at the MTA or procurement documentation.
Yes. Commercial availability does not remove an article from export jurisdiction and a potential licensing requirement.
Yes. All imported items are subject to U.S. Customs regulations, and may have Customs duty and reporting requirements. Importing items listed on the USML requires an ITAR license, unless certain specific exemptions are met. Additionally, a license may be required in the event that you are importing NRC-regulated items, or items from an OFAC-sanctioned country.
2. Laboratory Access to EAR and ITAR Controlled Items and Data
In some cases, yes. Assuming the Fundamental Research Exclusion (FRE) applies to the activity in which EAR-classified equipment is being accessed, 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) proprietary third party “use” and “development” technology pertaining to research equipment if the equipment itself is dual use controlled. If there is an ITAR item in the laboratory, access to that item will need to be restricted. See 2.3 below.
In some cases, this will also be licensable. Providing controlled data pertaining to “use” and development” technology to a foreign national or providing access to ITAR data (even if such data is not intended to be used) will require license review.
Potentially. BGSU may obtain funding with publication and/or citizenship restrictions where the senior leadership or General Counsel have approved the agreement. This will likely involve project-level restrictions that directly limit or restrict altogether foreign national participation.
If you’ve invented the item and publish the results of your invention, there is no access restriction, as it was created under the Fundamental Research/Public Domain exclusion. However, if you’ve purchased the item (or otherwise received it from a third party and it is not already in the public domain, i.e., it is proprietary technology), then access or use of the item that would allow a foreign national insight into how it works (directly or by virtue of receiving controlled technical data, e.g., in the form of a manual) is restricted and may be subject to license authorization. In this case, if no license is obtained (or pending receipt of a license that has been applied for), the ITAR item requires a Technology Control Plan to restrict access by foreign nationals.
Yes, access is restricted, with one exception that can potentially be utilized with the assistance of the Export Control Administrator, as follows. ITAR allows a PI to access ITAR technical data where the PI is a bona fide, full time employee of the research institution 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 BGSU’s Export Control Administrator prior to accessing any such data.
3. Special Concerns at BGSU's Facilities Subject to User
Users should be screened through Visual Compliance at the time of Agreement to ensure that BGSU is not partnering with any individual or entity identified on a government watch list. Subsequent changes in the Agreement party’s participating personnel would have to be subsequently flagged and screened.
There may be export control implications. In the event that the equipment or data is EAR-controlled and not being used for Fundamental Research purposes, and/or is ITAR-controlled, access restrictions would apply. Exposure to Foreign Nationals would require prior authorization. A Technology Control Plan might be required in order to ensure that access restrictions are being maintained appropriately. This would be true whether the party brings in this equipment/data for his or her own use, for BGSU’s use, or for collaborative use.
There may be similar export control implications. In the event that the data is EAR-controlled and not being used for Fundamental Research purposes, and/or is ITAR-controlled, access restrictions would apply. Also note: In the event that the remote User is a non-U.S. party located abroad and BGSU would be exporting any item back to that party, the item would need to be classified for license determination prior to export.
4. Complying with the Fundamental Research Exclusion (FRE) Off
When presenting research results abroad, attending professional conferences etc., as long as what is being presented is the result of fundamental research intended for publication or to be published, there is no export license requirement. If you depart from this framework and present in any form data which is proprietary to another party, or restricted by the sponsor’s contract or funding mechanism, then the FRE education and conference exclusions no longer apply. Note: when you are presenting at a professional conference, that conference must be one which is normally associated with the academic or professional subject at hand and not closed to participation in a way that is contrary to the premise of placing fundamental research results in the public domain.
5. Travel Abroad
Yes, with several exceptions. If, for example, you happen to have export controlled data on your laptop (i.e. proprietary data which is not published or intended for publication and the result of fundamental research), then traveling outside of the Unites States with your laptop could require a license, depending on its EAR or ITAR classification and your destination. In general, it is best practice not to travel with a laptop or other portable device containing such controlled data; it is recommended to either remove the data prior to travel or to travel with a clean device. The Technology Support Center (TSC) can assist with obtaining a clean device. For additional questions, contact Matt Haschak by email or at 419-372-9562.
If EAR (dual use) controlled, such items may or may not qualify under the Tools of Trade exemption, and therefore require prior classification. The “Tools of Trade” exemption covers temporary exports of “usual and reasonable kinds and quantities” of items for use abroad by the exporter, provided that the items remain under the “effective control” of the exporter and are utilized for a lawful enterprise or undertaking. In addition, this exemption has other qualifications based on type of export, destination, and duration of export. Note that this exemption can only be used when all requirements are met. If the item is ITAR controlled, a license is likely required.
6. International Collaborations and Conducting Research
Yes, in several respects.
The exchange of BGSU scientific information with researchers and administrators abroad can trigger control requirements such as end user screening, as well as export licensing requirements potentially associated with the transfer of tangible items, proprietary technical data, software, and transfers that meet the definition of a defense service or trigger OFAC restrictions. Screening should be performed at the outset of any international institutional collaboration, to ensure that the collaborating entity does not appear on any of the U.S. Government’s Restricted Parties Lists. If there is any question as to whether you might be sharing research results that are not intended for publication, or you are transferring abroad any commodity or software that could be controlled under the EAR or ITAR, you should contact the Export Control Administrator.
Finally, scholars and researchers who visit BGSU as part of the collaboration must be restricted from accessing BGSU laboratories wherein ITAR items or data are kept or used.
7. Office of Foreign Assets Controls (OFAC)
The OFAC regulations pertaining to transactions with these countries vary by country. These regulations address not only export, but a much broader spectrum of activity (e.g., funding or providing a service) that OFAC restricts absent specific license approval.
For example, the Cuba sanctions regulate personal travel to Cuba as well as professional research activity conducted with Cuba institutions here and abroad. That said, the Cuba regulations allow for a broad range of research and humanitarian related activity when approved by license from OFAC—and recent changes to the Cuba regulations have resulted in, among other things, an expanded set of activities which fall under a “General License” and do not require prior approval.
The Iran regulations, on the other hand, do not regulate individual tourist travel to Iran, but remain highly restricted as to any activity, research or otherwise, which OFAC defines as a “service” to Iran. While certain kinds of collaborative research activity are permissible with Iranian institutions, to the extent such research contemplates the exchange of material items with Iran, or providing advice on establishing a laboratory or research facility in Iran, a license may be required. Likewise, peer review or editorial comment that extends beyond the scope of what is normally defined as credential input or scientific journal editorial review may likewise trigger a license requirement.
With respect to Syria and Sudan, because of the geopolitical instability in both countries, transactions with those nations likewise must be evaluated carefully for evolving sanctions and requirements.
Hence, when contemplating any research or transactional activity with one of these OFAC countries or foreign nationals known to reside in these countries, contact the Export Control Administrator for assistance before proceeding.