Summary of Export Control Laws
Summary of Export Control Laws
The U.S. government maintains two primary sets of export control regulations that may impact university research. The Export Administration Regulations (“EAR”) regulate exports of commercial items with potential military applications (so called “dual-use” items). The International Traffic in Arms Regulations (“ITAR”) regulate exports of items and services specifically designed for military applications.
In addition to these export control regulations, university activities also may be subject to the U.S. government’s economic sanctions against certain countries, entities and individuals. These economic sanctions programs are administered by the Treasury Department’s Office of Foreign Asset Controls (“OFAC”).
Since 9/11, the U.S. government has increased its scrutiny of universities and industry to make sure they are complying with these often-complicated regulations. As a result, researchers whose work may have export control implications, particularly those who perform research on behalf of the Department of Defense or defense contractors, must be aware of and comply with applicable laws and regulations.
The EAR regulate exports (including re-exports and “deemed exports”) of commercial and “dual-use” goods, software and technology (i.e., items intended for non-military applications that nonetheless may be useful for military purposes). These regulations are administered by the Commerce Department’s Bureau of Industry and Security (“BIS”).
The specific items subject to the export control restrictions under the EAR are identified on the Commerce Control List (“CCL”), which is divided into the following 10 categories:
- Category 0 Nuclear Materials, Facilities & Equipment and Miscellaneous
- Category 1 Materials, Chemicals, “Microorganisms” and Toxins
- Category 2 Materials Processing
- Category 3 Electronics
- Category 4 Computers
- Category 5 Telecommunications and Information Security
- Category 6 Sensors and Lasers
- Category 7 Navigation and Avionics
- Category 8 Marine
- Category 9 Propulsion Systems, Space Vehicles and Related Equipment
Exports of items identified on the CCL may require a specific license from the Commerce Department, depending upon the reasons for control applicable to the particular items, the country of destination and the purposes for which the items will be used.
Items that are not specifically identified on the CCL (or the United States Munitions List, discussed below) fall into a “basket” category known as “EAR 99.” This basket category includes a wide range of common items, such as pencils, Band-Aids, automobiles and household appliances. EAR 99 items generally can be exported without a prior license from the Commerce Department, except to the sanctioned countries, entities and individuals discussed below.
Additional information and guidance regarding the EAR (15 C.F.R. Parts 730 to 774) is available on the BIS website at http://www.bis.doc.gov. In addition, the full text of the EAR, including the CCL, is available at http://www.access.gpo.gov/bis/ear/ear_data.html. Also note that BIS maintains several lists of entities and individuals who are restricted from participating in export transactions. Those lists are available at http://www.bis.doc.gov/ComplianceAndEnforcement/ListsToCheck.htm.
Administered by the State Department’s Directorate of Defense Trade Controls (“DDTC”), the ITAR regulate exports from the United States and re-exports from abroad of U.S.-origin “defense articles” and “defense services,” as well as certain temporary imports of foreign-made defense articles and “brokering” activities. These items and services have been identified by the U.S. government as being inherently or predominantly suited for military applications, and therefore are subject to extensive export controls.
The defense articles and defense services subject to the ITAR include those goods, software and technical data that are enumerated on the United States Munitions List (“USML”). In addition to the items enumerated on the USML, the ITAR also control any other article that has been specifically designed, developed, configured, adapted or modified for a military and that does not have “predominant civil applications.”
With very few exceptions, the ITAR require exporters to obtain prior written authorization from DDTC before exporting or re-exporting defense articles or defense services or engaging in “deemed exports” of ITAR-controlled technical data.
Finally, note that the ITAR includes a list of “proscribed countries” that are subject to U.S. arms embargoes. The State Department maintains a general policy of denying license applications for exports of ITAR-controlled items to the proscribed countries. The list of ITAR proscribed countries, which is available at http://www.pmdtc.org/country.htm, is significantly broader than the list below of countries subject to U.S. economic sanctions.
Additional information and guidance regarding the ITAR is available on DDTC’s website at http://www.pmdtc.org. In addition, the full text of the ITAR (22 C.F.R. Parts 120 to 130), including the USML, is available at http://www.pmdtc.org/itar_index.htm.
The Treasury Department’s Office of Foreign Assets Control (“OFAC”) administers and enforces economic and trade sanctions against targeted countries for particular foreign policy and national security reasons. The scope of the sanctions applicable to these countries varies significantly, but may include restrictions on imports, exports, investment, facilitation of foreign transactions and travel.
OFAC currently administers sanctions against the following countries: Belarus, Burma, Cuba, Iran, Ivory Coast, Liberia, North Korea, Sudan, Syria and Zimbabwe. (Sanctions against Iraq and Libya recently have been lifted.) The list is subject to change at any time. A current list of OFAC sanctions programs and additional guidance regarding prohibited transactions is available at http://www.ustreas.gov/ofac.
In addition, OFAC administers sanctions against designated entities and individuals found by the U.S. government to be agents of the sanctioned countries, terrorism sponsoring organizations, international narcotics traffickers, weapons proliferators or otherwise engaged in activities that threaten the security of the United States. These entities and individuals generally are identified on the List of Specially Designated Nationals (the “SDN List”). Virtually all transactions with these entities and individuals are prohibited.
In some circumstances, transactions involving “information” or “informational materials” may be exempt from the OFAC sanctions. For example, the economic sanctions regulations generally authorize U.S. persons to collaborate with academic and research institutions in the sanctioned countries in the creation, enhancement and marketing of written publications.
Please contact the USC Office of Compliance before engaging in any activity involving the sanctioned countries, entities or individuals referenced above.