The University of Toledo

The United States Code of Federal Regulations is the codification of the general and permanent rules and regulations published in the Federal Register by the executive departments and agencies of the Federal Government.

A list of items under the export control jurisdiction of the Bureau of Industry and Security, U.S. Department of Commerce. The CCL is found in Supplement 1 to part 774 of the Export Administration Regulations (EAR).

The CCL is divided into ten categories: (0) Nuclear Materials, Facilities and Equipment, and Miscellaneous; (1) Materials, Chemicals, "Microorganisms," and Toxins; (2) Materials Processing; (3) Electronics Design, Development and Production; (4) Computers; (5) Telecommunications; (6) Sensors; (7) Navigation and Avionics; (8) Marine; (9) Propulsion Systems, Space Vehicles, and Related Equipment.

The CCL is divided into 10 categories. Each category is subdivided into five groups, designated by the letters A through E: (A) Equipment, assemblies, and components; (B) Test, inspection and production equipment; (C) Materials; (D) Software; and (E) Technology.

A list of countries designated controlled for national security purposes found in Country Group D:1, including: Albania, Armenia, Azerbaijan, Belarus, Bulgaria, Cambodia, the People's Republic of China, Estonia, Georgia, Kazakhstan, Kyrgyzstan, Laos, Latvia, Lithuania, Moldova, Mongolia, Romania, Tajikistan, Turkmenistan, Ukraine, Uzbekistan, and Vietnam. Cuba and North Korea are controlled countries, but they are listed in Country Group E:2 (unilateral embargoes) rather than Country Group D:1.

A deemed export refers to the release or transmission of information or technology to any foreign national in the U.S., including students, post-docs, faculty, visiting scientists or training fellows. A deemed export is treated as an export to that person’s home country. Deemed exports are a primary area of export control exposure for the university.

(ITAR 120.6) means any item designated in the U.S. Munitions List (USML). Examples include specified chemical agents, cameras designated for military purposes, specified lasers, and GPS equipment as noted above. It also means any technical data recorded or stored in any physical form, models, mock-ups, or other items that reveal technical data directly relating to the particular item or “defense article” listed in the USML.

(ITAR 120. 9) means the furnishing of assistance (including training) anywhere (inside the United States or abroad) to foreign nationals in connection with the design, development, engineering, manufacture, production, assembly, testing, repair, maintenance, modification, operation, demilitarization, destruction, processing, or use of defense articles, and the furnishing of any controlled “technical data” (see definition below) to foreign nationals anywhere.

A list, referenced in Supplement No. 2 to part 764 of the EAR, of specific persons that have been denied export privileges, in whole or in part. The full text of each order denying export privileges is published in the Federal Register.

Items that have both commercial and military or proliferation applications. While this term is used informally to describe items that are subject to the EAR, purely commercial items are also subject to the EAR (see §734.2(a) of the EAR).

Information that is normally taught or released by the university as part of the normal instruction in a catalog course or in an associated teaching laboratory is considered Educational Information and as provided for under the federal regulations (15 CFR§734.9) is NOT subject to export controls

A detailed description of how the ultimate consignee intends to use the commodities being exported.

The person abroad that receives and ultimately uses the exported or re-exported items. The end-user is not a forwarding agent or intermediary, but may be the purchaser or ultimate consignee.

In export control regulations, there are several meanings which include any of the following: 1) actual shipment of any covered goods or items; 2) the electronic or digital transmission of any covered goods, items or related goods or items; 3) any release or disclosure, including verbal disclosures or visual inspections, or any technology, software or technical data to any foreign national; or 4) actual use or application of covered technology on behalf of or for the benefit of any foreign entity or person anywhere.

The Export Administration Regulations (EAR), Title 15, sections 730-774 of the Code of Federal Regulations (CFR), means the regulations promulgated and implemented by the Department of Commerce that regulate the export of goods and related technology identified on the Commodity Control List (CCL), Title 15 CFR 774, Supp. 1. Goods and technology on the CCL are not inherently military in nature; they are primarily and inherently commercial or potentially commercial in nature.

EAR99:
EAR99 is the general "catch-all" classification number assigned to any item that is subject to the EAR but that does not have a specific export control classification number listed in the Commerce Control list. By far the vast majority of U.S. origin goods are classified as EAR99 and under most circumstances do not require a license for export.

The set of laws, policies, and regulations that govern the export of sensitive items for a country or company.

Identifies items on the Commerce Control List that are subject to the export licensing authority of the Bureau of Industry and Security.

The Export Control Committee consists of faculty and staff of The University of Toledo. Their charge is to assist the UT research community and advise the UT administration concerning issues of Export Control law compliance.

The person who has authority of a principal party in interest to determine and control the sending of items out of the country.

The approval documentation issued by an export agency authority authorizing the recipient to proceed with the export, re-export, or other regulated activity as specified on the application.

An Export License Exception is a special authorization that allows you to export or re-export, under very specific conditions, items that would otherwise require an export license. Export License Exceptions are detailed in EAR§740

Any person who is not a citizen or Permanent Resident Alien of the U.S. Under the EAR, the term applies to “persons lawfully admitted for permanent residence in the United States and does not apply to persons who are protected individuals (i.e. has been admitted as a refugee or granted asylum). (See Immigration and Naturalization Act (8 U.S.C. 1324b (a) (3)).

"Foreign national" is not an ITAR term per se, but the ITAR does define the term "foreign person" as any natural person who is not a lawful permanent resident or who is not a “protected individual”, and may also include any corporation, business association, partnership society, trust or any other entity, organization or group that is incorporated to do business in the United States. This also includes any governmental entity.

This is the person in the country of origin who is authorized by a principle party in interest to perform the services required to facilitate the export of the items from the country of origin. This may include air couriers or carriers. In routed export transactions, the forwarding agent and the exporter may be the same for compliance purposes under the EAR.

(EAR and ITAR) means basic or applied research in science and engineering performed or conducted at an accredited institution of higher learning in the United States where the resulting information is ordinarily published and shared broadly in the scientific community. Fundamental research is distinguished from research that results in information that is restricted for proprietary reasons or national security reasons (EAR) or pursuant to specific U.S. government access and dissemination controls (ITAR).

The EAR provides that university research normally will be considered as fundamental research unless the university or its researchers accept sponsor restrictions on publication of scientific and technical information resulting from the project or activity. The EAR specifically permits limited prepublication reviews by research sponsors to prevent inadvertent divulging of proprietary information provided to the researcher by the sponsor or to insure that publication will not compromise patent rights of the sponsor. The citation for the official definition of fundamental research under the EAR is 15 CFR § 734.8.

The ITAR state that university research will not be deemed to qualify as fundamental research if: (1) the university or its researchers accept any restrictions on publication of scientific and technical information resulting from the project or activity; or (2) the research is federally funded and specific access and dissemination controls protecting information resulting from the research have been accepted by the university or the researcher. The ITAR citation is 22 CFR § 120.11(8).

The International Traffic in Arms Regulations (ITAR), 22 CFR §§ 120-130, means the regulations promulgated and implemented by the Department of State that control the export of articles, services, and related technical data that are inherently military in nature, as determined by the State Department. These “defense articles,” “defense services,” and related “technical data” are listed on the Munitions List (USML), 22 CFR § 121. Even some articles and technologies that are not readily identifiable as inherently military in nature—for example, research satellites—are included on the US Munitions List (USML).

Articles, services and related technical data designated as defense articles and defense services pursuant to the Arms Export Control Act.

The Office of Foreign Assets Control (31 CFR §§500-599) and is an office under the U.S. Department of the Treasury. OFAC is responsible for enforcing the foreign policy of the U.S. government including all trade sanctions, embargoes, and financial interactions with prohibited or blocked individuals or entities. For more information see a listing of OFAC Country Sanction programs.

(ITAR; 22 CFR § 120.11) means information that is published and that is generally accessible or available to the public: (1) through sales at newsstands and bookstores; (2) through subscriptions which are available without restriction to any individual who desires to obtain or purchase the published information; (3) through second class mailing privileges granted by the U.S. government; (4) at libraries open to the public or from which the public can obtain documents; (5) through patents available at any patent office; (6) through unlimited distribution at a conference, meeting, seminar, trade show, or exhibition, generally accessible to the public, in the United States; (7) through public release (i.e., unlimited distribution) in any form (e.g., not necessarily in published form) after approval by the cognizant U.S. government department or agency; and (8) 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.

Information that is already published or is out in the public domain is considered Public information and as provided for under the federal regulations (15 CFR§734.7 and 15CFR§734.10) is NOT subject to export controls. Examples of information in the public domain include:

• Books, newspapers, pamphlets
• Publicly available technology and software
• Information presented at conferences, meetings and seminars open to the public
• Information included in published patents
• Websites freely accessible by the public

The person abroad who has entered into a transaction to purchase an item for delivery to the ultimate consignee. In most cases, the purchaser is not a bank, forwarding agent, or intermediary. The purchaser and ultimate consignee may be the same entity.

"Re-export" means an actual shipment or transmission of items subject to export regulations from one foreign country to another foreign country. For the purposes of the U.S. EAR, the export or re-export of items subject to the EAR that will transit through a country or countries to a new country, or are intended for re-export to the new country, are deemed to be exports to the new country.

Any person who is determined by the U.S. Secretary of the Treasury to be a specially designated national for any reason under regulations issued by the Office of Foreign Assets Control.

Technical assistance may take forms such as instruction, skills training, working knowledge, consulting services, and may also involve the transfer of technical data.

A Technology Control Plan (TCP) is a document drafted by the researcher in collaboration with the Export Control Committee and their Department Chair specifying procedures that will be taken in order to safeguard and control access to information or items that are export restricted. In general, a TCP will outline what the restricted information/item is, who will have access to it, how access will be monitored and controlled, how the information/item will be physically and electronically stored, what information about it can be shared or presented and what will be done with the information/item once the project is completed.

Means information required for the design, development, production, manufacture, assembly, operation, repair, testing, maintenance, or modification of controlled articles. This includes information in the form of blueprints, drawings, plans, instructions, diagrams, photographs, etc. May take forms such as blueprints, plans, diagrams, models, formulae, tables, engineering designs and specifications, manuals and instructions written or recorded on other media or devices such as disk, tape, or read-only memories. The ITAR definition does not include information concerning general scientific, mathematical, or engineering principles commonly taught in schools, colleges, and universities, or information in the public domain (ITAR 120.10(5)).

Any specific information and know-how (whether in tangible form, such as models, prototypes, drawings, sketches, diagrams, blueprints, manuals, software, or in intangible form, such as training or technical services) that is required for the development, production, or use of a good, but not the good itself.

The principal party in interest located abroad who receives the exported or re-exported items. The ultimate consignee is not a forwarding agent or other intermediary, but may be the end-user.

An individual who is a citizen of the United States or a foreign national with a visa status of Legal Permanent Resident (LPR). An LPR is also know as a Permanent Resident Alien (PRA).

There is no external funding supporting my activities, do export controls apply?

Yes, export controls apply to all international activities regardless of funding status or source.

I am doing basic research at UT in collaboration with a foreign lab, do export controls apply?

Yes, export controls apply to all international research activities. In general, basic research conducted at The University is not subject to export controls under the Fundamental Research Exclusion as long as it is not in an export restricted area and there are no restrictions on publication or access by foreign nationals. However, in cases where UT research involves collaborations with foreign nationals, the university must perform a review of the research and document that the Fundamental Research Exclusion or other exclusion does or does not apply.

I am doing basic research that includes field work done overseas; does my research qualify under the Fundamental Research Exclusion?

Maybe, to qualify as Fundamental Research, research must be conducted at an accredited institution of higher education located in the United States. If your research includes work done outside the U.S., it may not qualify for the Fundamental Research Exclusion. This does not automatically mean that export licenses will be required but it does mean that an export control determination needs to be done before the work begins. Contact Kandace.Williams@utoledo.edu for help in determining your license requirements.

My research is exempt from export controls under the Fundamental Research Exclusion, can I ship items developed as part of that research overseas?

Not automatically. While research results developed or generated under the Fundamental Research Exclusion are exempt from export controls and can be freely shared with foreign nationals both here and abroad, any materials, items, technology or software generated as a result of the research ARE NOT exempt from export controls. Before shipping or taking any item abroad, an export control determination needs to be done to determine if an export license is required to take or transfer the item. Contact Kandace.Williams@utoledo.edu for help in determining your license requirements.

Determining when you need an export license can be very complicated. The Export Control Officer (Kandace.Williams@utoledo.edu) and the Export Control Committee can assist you in determining if a license is required and/or if there is a valid license exception or other exclusion that may apply.

How do I apply for an export license?

Ifit is determined that your activity requires an export license, the Export Control Committee will coordinate the license application process. They will work with you to submit a license request to the appropriate regulatory body on your behalf. It is important to note that obtaining an export license can take 3-6 months and there is no guarantee that a license will be granted.

Yes, in most cases, low-end items that are commercially available do not require export licenses. There are some important exceptions including items containing strong encryption technology or software (e.g., laptop computers, web-enabled cell phones), items that have dual use applications (e.g., high end GPS units), or that are restricted under other regulations or sanctions.

Research conducted at UT that includes or uses export controlled or restricted information or items obtained from an outside entity does not qualify under the Fundamental Research Exclusion and would be subject to all export controls. Before export controlled information or item is received by the researcher, contact the Office of Research and Sponsored Programs for guidance.

I am working as a consultant overseas; do export controls apply to me?

Yes, export controls apply to all U.S. persons, at all times. It is important that you understand and comply with your obligations under export control regulations. If you are consulting in a restricted technology area (e.g., on  dual-use technologies or select agent work) then you may need an export license depending on where you are going, what information you are providing, who you are providing it to, and what they intend to do with it. If the destination or end-user is a foreign national of a sanctioned country (especially Iran, Syria, Cuba, Sudan, or North Korea) then in most cases any consulting activities would be prohibited regardless of the subject matter. For more information see a listing of OFAC Country Sanction programs.

I am on an editorial board of a scientific journal and I have been asked to review a paper from an Iranian author, is this allowed under the OFAC sanctions?

Yes, under the current federal regulations, Federal Register vol. 72, 50047-50052 – (see section 560.538), all activities normally incident to publishing are allowed with Iranian citizens as long as the Iranian author is not a governmental official or working on behalf of the government of Iran. Academic and research institutions in Iran and their personnel are not considered governmental employees or representatives for the purposes of the regulations. This would be true for citizens from the other sanctioned countries as well.