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Export Control

Export control is the set of laws, policies, and regulations that govern the export of sensitive items for a country or company. Export control regulations require license or other agency approval prior to the release of controlled technology, data, software and information to foreign nationals within or outside the United States.  

Federal laws prohibit the unlicensed export of certain items when:
  • The item has actual or potential military applications
  • The item is covered by economic protections
  • The Government has concerns about the destination country, organization, or individual
  • The Government has concerns about the declared or suspected end use of the end-user
An export is any oral, written, electronic or visual disclosure, shipment, transfer or transmission of commodities, technology, information, technical data, assistance or software codes to:
  • Anyone outside the U.S. including a U.S. citizen
  • A non-U.S. individual wherever they are (deemed export)
  • A foreign embassy or affiliate
There are three U.S. Departments that regulate exports:
 

The U.S. Department of Commerce administers the Export Administration Regulations (EAR).  These itesms include goods and related technology, including technical data and technical assistance, which are designed for commercial purposes, but which could have military applications, such as computers, aircraft, and pathogens. Some items that could be considered as Technical Data regulated under EAR are:  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, and read-only memories.  Technical assistance regulated by the EAR could be instruction, skills training, working knowledge and consulting.  The Commerce Control list covers the items in alphabetical order. 

The Department of State is responsible for the export and temporary import of defense articles and services governed by the Arms Export Control Act (AECA).  The International Traffic in Arms Regulations (ITAR) implements the AECA and regulates technologies, products and information that are inherently military in nature.  Regulated defense articles and controlled data are listed in the U.S. Munitions List.

The Office of Foreign Assets Control (OFAC) of the U.S. Department of Treasury administers and enforces economic and trade sanctions based on U.S. foreign policy. OFAC restricts transactions with foreign countries that have sanctions in place and with certain entities or indviduals.  

The Bureau of Industry and Security (BIS) implements U.S. Government certain sanctions against Cuba, Iran, North Korea, and Syria pursuant to the Export Administration Regulations (EAR), either unilaterally or to implement United Nations Security Council Resolutions.

Research in which foreign nationals participate may implicate export controls. As a general matter, a university may need to obtain an export license from BIS to release technology or source code subject to the EAR to a foreign national in the U.S. in the context of research activities. Under the EAR, such an export is a “deemed export” (“deemed” to be an export to the most recent country of citizenship or permanent residency.) However, information arising during or resulting from fundamental research and that is intended to be published is not subject to the EAR, and therefore its export does not require prior authorization from BIS.