Export Controls

Guidelines on Export Controls

Overview:

The Department of Commerce’s Export Administration Regulations (EAR) and the Department of State’s International Traffic in Arms Regulations (ITAR) restrict the export of certain technology or technical data, such as military applications (regulated by ITAR) or commercial applications that may also have value in a military context (regulated by EAR), overseas and to foreign nationals working in or visiting the United States.

In addition, in some circumstances, the University may be required to obtain prior approval from the appropriate agency before allowing foreign nationals to participate in research, collaborate with a foreign company, or share research results with foreign nationals. The Treasury Department’s Office of Foreign Assets Control (OFAC) regulates trade embargoes, sanctions, and travel restrictions and restricts exportation of information and research articles to embargoed entities and persons.

These regulations, which have been in place for over twenty years, carry a range of potential penalties, including imprisonment, for individuals who violate them. This page provides guidance to Yale faculty, students, and staff so that they may recognize when the regulations may apply and when an export or OFAC license may be required in connection with research.

Summary:

Export controls are U.S. laws and regulations governing the “export” of certain controlled technologies, services and information to foreign nationals, foreign entities or foreign countries for reasons of national security and foreign policy. 

An export is defined as an actual shipment outside of the U.S. of controlled equipment or materials (actual items) or any disclosure of information or technical data related to controlled equipment or materials by any means (verbal, email, fax, visual inspection, internet or training) outside the U.S or inside the U.S. to a foreign national).  Disclosure of information or technical data to a foreign national in the U.S. (at Yale) is defined as a “deemed export”.  For deemed exports, foreign nationals would be any person who is not a lawful permanent resident of the U.S., a group not organized to conduct business in the U.S. or a foreign government (or any branch of a foreign government).

While all activities at Yale need to be in compliance with export controls, it should be noted that the majority of research activities at Yale qualify for certain exclusions from the export controls.  Most research activities at Yale will not be affected by export controls due to the so called Fundamental Research Exclusion.  As is the case with most Yale research, this exclusion covers basic and applied research that results in publications and open dissemination of research results, as is typically found in academic research. 

The definition of Fundamental Research is 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. 

Generally speaking, if the information to conduct research is in the public domain and the results of the research are publishable, the research is covered by the Fundamental Research Exclusion. Accordingly, researchers should avoid terms in award documents (contracts and grants) that may lead to export control concerns, including the removal of the Fundamental Research Exclusion.  Generally terms which prevent free and open access to the participation in the research endeavor or the dissemination of research results are suspect.  In particular, the following terms would be problematic:

*Restrictions on the participation access or hiring of faculty, students or staff in the conduct of the research program, based on their nationality or citizenship, including limiting participation to U.S. citizens.

*Restrictions on the disclosure of information or research results or access to equipment on faculty, students or staff based on their nationality or citizenship, including limiting participation to U.S. citizens

*Terms requiring the approval of a sponsor prior to disclosure or publication of information or research results generated in the conduct of the sponsored research or granting the sponsor the right to require that such information or research results be treated as confidential information.

One important regulatory regime involves export controls which are based not on the nature of the technology but the individuals and countries involved in the transaction.  These regulations are administered by the Office of Foreign Assets Controls (OFAC).  The general rule is that transactions of value (payments, providing services, collaborations) with certain countries and individuals are prohibited without a license from the U.S. government.  Counties in the OFAC regulatory regime of greatest concern are Cuba, Iran, Sudan, Syria and N. Korea.  Individuals involved in any capacity with these countries, such as travel to such countries, making a payment to an individual or entity in such country, or providing a service or collaborating with an individual or entity in such country, all these are subject to prohibitions are those identified in government lists as supporting terrorism, proliferation of weapons, illegal exporting activities and other such activities. The application to the government and approval of a license can be a lengthy process so the need for a license should be identified as early as possible.

    Government Regulations:

    Export Administration Regulations

    Export Administration Regulations (EAR) The EAR regulate exports  of commercial and “dual-use” goods, software and technology.  By dual use,  we are referring to items with both a commercial non-military application that nonetheless may also 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

    Items on the CCL will be characterized by an ECCN.  “ECCN” stands for Export Control Classification Number and is an alpha-numeric code used to categorize items that are subject to the EAR into one of the ten categories and five product groups within the Commerce Control List (CCL).

    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.

    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.

    Additional information and guidance regarding the EAR (15 C.F.R. Parts 730 to 774) is available at:

    International Traffic in Arms Regulations (ITAR) International Traffic in Arms Regulations (ITAR) administered by the Office of Defense Trade Controls of the U.S. Department of State controls the export of “defense articles” and “defense services”. “Defense articles” include any item or technical data on the United States Munitions List (USML), and “defense services” include the furnishing of assistance to foreign persons, whether or not in the United States, with respect to defense articles, and the furnishing of any technical data associated with a defense article.

    Office of Foreign Assets Control (OFAC) The United States maintains sanctions and embargoes on certain countries; some of these sanctions can affect international research collaborations. The sanctions are subject to change (even frequent or sudden). Sanctions range from narrow restrictions prompted by a particularized foreign-policy considerations  to very broad, long-standing sanction programs and embargoes, such as those involving Cuba and Iran.  Sanctions invariably include a financial component; accordingly, the U.S. sanctions regime is under  the jurisdiction of the U.S. Treasury Department’s Office of Foreign Assets Controls (OFAC).   Generally it is advisable for Yale researchers and/or their staff to check the OFAC web site to confirm whether an activity involving a foreign collaboration might be subject to OFAC restrictions.

    OFAC also maintains lists of individuals and organizations that are known to support of terrorism (the “Specially Designated Nationals” list, or “SDN”).  Financial dealings or providing services with these individuals/entities or providing support or services to them is barred. As a best practice, Yale faculty and staff researchers should know the foreign entities and individuals with whom they are interacting.

    Last update: November 1, 2013 (DD)