The term “Export Controls” refers collectively to the body of U.S. laws and regulations that govern the export, transfer or release of controlled “items,” software,” or “information” to a “foreign person,” a foreign entity, or a foreign country. The regulations are very complex and the interdependency of a section within a regulation or the applicability of the various laws and regulations requires careful review.
What is an Export?
The term “Export”, as used in export control regulations, has an expansive meaning. Generally, an export includes any: (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, of any technology, software or technical data to any foreign person wherever located; or (4) the actual use or application of covered technology on behalf of or for the benefit of any foreign entity or person anywhere. The official definition of export under the EAR and ITAR, 15 CFR §734.13 and 22 CFR §120.17, respectively, should be consulted when determining whether a specific act constitutes an export. By way of the regulations, exporting covered technology, items, software may preclude the participation of foreign graduate students in research without first obtaining license from the appropriate government agency.
Therefore, an export occurs whenever any item (i.e., any commodity, software, technology, or equipment) or information is forwarded, transferred or released from the U.S. to a foreign destination or to a foreign person in the U.S. or abroad. Some examples of export activities include: the shipment of items, written or oral communications, hand-carrying items when traveling, providing access to or visual inspection of equipment or facilities, and providing professional services. It can be:
- Any oral, written, electronic or visual disclosure, shipment, transfer or transmission outside of the United States to anyone, including a U.S. citizen, of any commodity, technology (information, technical data, or assistance) or software/codes.
- Any oral, written, electronic or visual disclosure, transfer or transmission to any person or entity of a controlled commodity, technology or software/codes with an intent to transfer it to a non-U.S. entity or individual, wherever located (even to a foreign student or colleague at the Rensselaer).
- Any transfer of these items or information to a foreign embassy or affiliate.
Overview of Rensselaer's Export Control Management and Compliance Plans and Procedures
The mission of Rensselaer as instituted by Stephen Van Rensselaer, founder of Rensselaer Polytechnic Institute in 1824, wrote "for the purpose of instructing persons... in the application of science to the common purposes of life" and leading to "the diffusion of a very useful kind of knowledge, with its application to the business of living." This has been a long tradition of academic freedom which includes the principles of openness in research, communication and inquiry. In general, as some of our research efforts include classified projects and/or restriction on publication and involving foreign nationals a conflict arises between Rensselaer’s traditions and current Federal Export Control Laws which creates an urgent need for the campus community to understand and comply with export laws and regulations.
Today, the export laws and regulations have several objectives: advancing the U.S. economic interests at home and abroad, preventing the proliferation of weapons of mass destruction, aiding regional stability, implementing anti-terrorism and crime controls, and protecting human rights. Therefore, depending on the research and research contract conditions, the U.S. export control system generally requires export licensing for defense items, for items that have both commercial and military applications, and for exports to sanctioned persons and destinations. It is important to understand that the export control laws are applicable to individuals, and the responsibility to comply rests with the individual.
The Rensselaer Export Control Management and Compliance Plan (EMCP) addresses these obligations promulgated by various U.S. Government Agencies with respect to actual and deemed export of research results, materials, data, and international travel, hiring and documentation. These laws and regulations relate to:
- sharing proprietary, confidential or restricted information or software code with foreign nationals at Rensselaer, within the U.S. and overseas;
- shipping or releasing tangible items overseas;
- providing technical services, know-how, or conduct of research collaboration with overseas entities;
- interacting with embargoed or sanctioned countries, organizations or individuals; and
- applying to all Rensselaer personnel including faculty, staff, research associates and fellows, post-doctoral fellows, student employees, students, and volunteers in all units of the university.
As provided by U.S. Department of Commerce’s Bureau of Industry and Security’s (BIS), the following guidelines establish the core elements of Rensselaer’s Management Plan:
- Senior management commitment to the export compliance standards for the Rensselaer organization,
- Continuous Risk Assessment of the Export Program.
- Written Export Management and Compliance Program.
- Ongoing Compliance Training and Awareness.
- Cradle to Grave Export Compliance Security involving screening of employees, international visitors and scholars, contractors, and transactions.
- Adherence to Recordkeeping Regulatory Requirements.
- Internal and External Compliance Monitoring and Periodic Audits.
- Internal Program for Handling Compliance Problems.
- Completing Appropriate Corrective Actions in Response to Export Violations.
Federal regulations, Code of Federal Regulations, Title 15, the Export Administration Regulations (EAR), and Title 22, the International Traffic in Arms Regulations (ITAR), which are related to export control, are complex and ever changing. Individuals, faculty, researchers, employees and students at Rensselaer are therefore encouraged to contact Rensselaer's Export Control Office whenever they expect to be involved with any export control issues.
It is Rensselaer’s strategy to protect Rensselaer’s Fundamental Research Exclusion (FRE) by negotiating the elimination of all contractual clauses that restrict Rensselaer’s publication rights or limits access to or participation of foreign nationals in its research. In those cases where this becomes counterproductive or the underlying research must possess such control, the terms and processes set forth in this Plan will prevail. The FRE is granted only to U.S. accredited institutions of higher learning and is paramount for Rensselaer to maintain this research status.
It is Rensselaer's intention and commitment to comply with all United States export control laws and regulations including, but not only limited to, the U.S. Departments of Commerce, State and Treasury These are principle administrative branches of the U.S. Government involved in the oversight and enforcement of Export Controls. The Administration is committed via this Export Control Management and Compliance Plan to assist the community’s understanding and interpretation of these complex set of laws and, once implemented to direct the administrative functions that will oversee the management system.
- A. The Department of State, through the Directorate of Defense Trade Controls (DDTC), administers the International Traffic in Arms Regulation (ITAR). ITAR controls the export of items that have primarily military or space applications. 22 CFR 120-130.
- B. The Department of Commerce, through the Bureau of Industry and Security (BIS), administers the Export Administration Regulations (EAR). EAR controls the export of "dual-use" items (i.e., those items having both commercial and military applications) as well as strictly commercial items. 15 CFR 730-774.
- C. The Department of the Treasury, through the Office of Foreign Assets Control (OFAC), is responsible for enforcing specific embargoes and/or sanctions. 31CFR Chapter V.
It is the objective of Rensselaer Polytechnic Institute that all personnel, including faculty, staff, visiting scientists, postdoctoral fellows, students and all other persons retained by or working at the university, comply with all U.S. laws and regulations while teaching, conducting research or providing service activities at or on behalf of the university. As such, all personnel are required to comply with the U.S. laws that regulate the export and release of items, information, technology, software and funds to destinations and persons outside of the U.S., as well as in some cases, the transfer (in country) to non-U.S. citizens at the university or within the U.S.
These current federal regulations are collectively referred to as the “Export Control laws” and have been in existence since the 1940’s to regulate the export, release or transfer (in country) from the U.S. of information, commodities, technology, or software that has been deemed strategically important to the U.S. for reasons of national security, foreign policy, or the protection of the economy and commerce. Many of the research, teaching or service activities conducted by Rensselaer faculty and staff are shielded, however, from these complex regulations by a long-standing “fundamental research exclusion” (FRE), which is discussed in more detail below.
Failure to comply with the export control laws may result in severe penalties to the Rensselaer, as well as, criminal sanctions to individual faculty, staff and students, and possible administrative sanctions resulting in potential loss of federal funding and export privileges. It is, therefore, critical to maintain compliance with these regulations even though problematic, and perhaps in conflict with Rensselaer’s philosophies of sharing information and academic freedom. The regulations are lengthy, difficult to interpret, and frequently subject to change. However, they are to be taken seriously as penalties for violations may include significant fines and jail time, and are assessed against the individual committing the violation.
Rensselaer’s faculty, staff and students members working in the following areas should become familiar with this Management & Compliance Plan and Procedures: engineering, physical and computer sciences, confidential or defense-related research, biological sciences and medicine, working with select agents and infectious materials, and/or faculty conducting research or academic collaborations with colleagues in countries that have been sanctioned by OFAC, ITAR and the EAR. Section F provides a link to the Bureau of Industry and Security's Export Control Classification Interactive Tool.
It is the purpose of this plan to outline the key features of Export Controls, examine the relationship of these regulations to activities conducted at Rensselaer, and explain how the Institute will assist its personnel to ensure compliance with Export Controls. The plan applies to all Rensselaer personnel (including but not limited to all faculty, staff, employees, students, post docs, trainees, visitors and visiting scientists) whose academic work involves, but is not limited to, the following:
- Activities or research in controlled areas (e.g., encryption technology, nuclear technology, chemical/biological weapons, military technologies).
- Activities involving the shipping or taking of equipment, technology, or software overseas.
- Activities involving teaching and research collaborating with foreign colleagues, at foreign institution, or the participating or training of foreign nationals here or abroad.
- Activities involving travel or work outside the U.S.
- Conducting tours of foreign nationals through research areas.
- Conducting research sponsored by any entity restricting publication or the participation of foreign nationals.
- Activities involving the receipt and/or use of export controlled information or technologies from other parties.
- Activities involving the hiring of foreign.
Rensselaer is conducting leading-edge research in many areas of science and engineering. It is a general practice of Rensselaer to foster a research environment conducive to the expansion of general knowledge and the open release of knowledge acquired for the public good. The Federal regulations provide a broad exemption from Export Controls for “basic” or applied academic research conducted in the U.S. that is normally published and shared with the research community. This broad exemption is commonly referred to as the "Fundamental Research Exclusion" (FRE). To qualify as “Fundamental Research,” and thus be exempt from export controls, research must be conducted free of any publication restrictions, or limitation to access or full dissemination of all research results.
In consideration of the above, however, certain activities and information that are not covered by the FRE and remain subject to the export control laws and regulations are:
- receipt by the Institute of third party export controlled information which requires that appropriate measures be taken to ensure that the information is properly safeguarded,
- travel abroad, and
- engaging in specific activities with person and entities abroad,
The above holds true even if the information relied upon is publicly available, requires review for exceptions other than the review provided for safeguarding contractual proprietary information.
Thus, it is critical that the university continues to ensure that all research results are widely and openly published and made available to the academic community in order to safeguard the "Fundamental Research Exclusion." It is important to note that even with the “Fundamental Research Exclusion,” if a university activity involves an export or deemed export, the university must document that an Export Control review and analysis was performed before the export or release of information takes place. It is also important to note that while the research results of “Fundamental Research” are exempt from Export Controls, the actual item, technology, or software under study is not automatically exempt and may have Export License requirements.
Export controls present a special challenge to U.S. research institutions. These regulations demand that the U.S. national security and the necessary safeguards it mandates be reconciled with the traditional concept of unrestricted academic freedom, which includes the right to freely publish research findings within an unfettered global academic community. Compounding those challenges are the ever-growing concerns about university compliance with the export control regulations:
- Top research universities have become a focal point for U.S. government export control compliance.
- Cutting-edge science, technology, and engineering research are increasingly intersecting national security, foreign policy, and homeland security.
- The role of the research universities are evolving to be global in scope and multidisciplinary in nature.
Therefore, any export control issue related to research being performed at Rensselaer must be addressed with the appropriate personnel in Rensselaer's Export Control Office. Because every export control issue is unique, its resolution is dependent on specific facts, it is important to contact Rensselaer's Export Control Office with any questions or concerns.
As a guide, although export controls cover a wide range of activities, the following are most pertinent to academic research:
- Research carried out at an accredited institution of higher education in the United States in areas involving controlled technologies. However, where there are no publication restrictions, and no restrictions on engaging foreign nationals, and limiting access and dissemination of research results, shall in most instances satisfy the requirements for the FRE and negate requiring an export license.
- Shipment of controlled hardware and software outside the United States may require a license under the appropriate regulations (i.e., EAR, ITAR, and OFAC). Rensselaer will apply for the export license.
Appropriate time (weeks to several months) must be allowed to obtain a license prior to any technology export, release or transfer of an item.
- Technical assistance agreements (TAA) where U.S. citizens or permanent residents are providing the training of foreign nationals where a controlled technology is involved, requires a license and Rensselaer will apply for such licenses.
- Research carrying restrictions on publications and/or the use of foreign nationals researchers or providing the RPI’s researcher with export controlled data and technology that would require a license, in either case, is generally in conflict with Rensselaer’s policy, Contacting Rensselaer's Export Control Office will help in its resolution with respect to instituting appropriate safeguards.
It is the responsibility of all Rensselaer personnel to be aware of and comply with all Export Control laws and regulations, as well as any of Rensselaer’s applicable policies and procedures. With regard to specific research projects, it is important to note that the primary compliance responsibility resides with the researcher. However, the appropriate administrative staff (e.g., Research Administration and Finance, Rensselaer's Export Control Office, Deans, Department Heads, etc.) should be notified by the researcher whenever it is believed -- or known -- that the Export Control regulations may apply. “Self-Blind” is not advisable. As always, Rensselaer will assist any member of its community in assessing their export control obligations and facilitate the acquisition of export licenses as required.
I. Research Involving the Export of Items Out of the U.S.
It is the responsibility of Rensselaer's Export Control Office to determine the export licensing requirements for shipping any item, software, technology, data, or information from Rensselaer to a destinations outside the U.S. Determining the license requirements of an item can be a complex and complicated process requiring specific facts provided by the researcher for proper classification of the item and verification and clearance of the target destination, end-use, and end-users. The final determination of whether an item requires an export license, qualifies for a license exemption, or can be exported as “No License Required” (NLR) will be made by the Rensselaer's Export Control Office in collaboration with the researcher(s). If an export license is required, Rensselaer's Export Control Office will coordinate the license application process. To be noted, there is no guarantee of a license being issued. No export, transfer, release, deemed export, or deemed re-export can take place until the required license is obtained. This procedure is in addition to the freight forwarders requirement.
II. Research Involving Disclosures, Transfers or Transfer to Foreign Persons in the U.S. (Deemed Exports)
The release or transmission of information or technology subject to Export Control to any foreign national in the U.S. including graduate students, post docs, foreign visitors and training fellows is a "Deemed Export," and is considered an export to that person's home country. In some instances, an Export License may be required before the information can be released.
Examples of "releases" to foreign nationals include providing access to controlled software, technology, or equipment by visual inspection or use, providing access via tours of facilities, providing access to technical specifications, and verbal exchanges of information. It is the responsibility of Rensselaer's Export Control Office to determine the licensing requirements involving deemed exports. No release of information or items to foreign nationals can take place until the required License is obtained.
It is imperative that the PI should review contract conditions of a proposal solicitation and review with Rensselaer's Export Control Office the proposal prior to submittal. These should be discussed with Research Administration and Finance (RAF) and Rensselaer's Export Control Office to address export control issues with respect to contract term modifications, technology transfer, personnel staffing and export control license requirements. Waiting until time of the award can create a considerable delay in the research implementation if an export license is required.
U.S. CODE OF FEDERAL REGULATIONS (CFR)
Updated March 19, 2019
Title 15Chapter VII Part 744 - CONTROL POLICY: END-USER AND END-USE BASED
§ 744.1 - General provisions.
(a) (1) Introduction. In this part, references to the EAR are references to 15 CFR chapter VII, subchapter C. This part contains prohibitions against exports, reexports, and selected transfers to certain end-users and end-uses as introduced under General Prohibition Five (End-use/End-users) and Nine (Orders, Terms, and Conditions), unless authorized by BIS.
- Sections 744.2, 744.3, 744.4 prohibit exports, reexports and transfers (in-country) of items subject to the EAR to defined nuclear, missile, and chemical and biological proliferation activities.
- Section 744.5 prohibits exports, reexports and transfers (in-country) of items subject to the EAR to defined nuclear maritime end-uses.
- Section 744.6 prohibits certain activities by U.S. persons in support of certain nuclear, missile, chemical, or biological end-uses. Section 744.7 prohibits exports and reexports of certain items for certain aircraft and vessels.
- Section 744.8 prohibits exports and reexports without authorization to certain parties who have been designated as proliferators of weapons of mass destruction or as supporters of such proliferators pursuant to Executive Order 13382.
- Section 744.10 prohibits exports and reexports of any item subject to the EAR to Russian entities, included in supplement no. 4 of this part.
- Section 744.11 imposes license requirements, to the extent specified in supplement no. 4 to this part on entities listed in supplement no. 4 to this part for activities contrary to the national security or foreign policy interests of the United States.
- Sections 744.12, 744.13 and 744.14 prohibit exports and reexports of any item subject to the EAR to persons designated as Specially Designated Global Terrorists, Specially Designated Terrorists, or Foreign Terrorist Organizations, respectively.
- Section 744.15 sets forth the conditions for exports, reexports, and transfers (in-country) to persons listed on the Unverified List (UVL) in supplement no. 6 of this part, the criteria for revising the UVL, as well as procedures for requesting removal or modification of a listing on the UVL.
- Section 744.16 sets forth the license requirements, policies and procedures for the Entity List.
- Section 744.19 sets forth BIS's licensing policy for applications for exports or reexports when a party to the transaction is an entity that has been sanctioned pursuant to any of three specified statutes that require certain license applications to be denied.
- Section 744.20 requires a license, to the extent specified in supplement no. 4 to this part, for exports and reexports of items subject to the EAR destined to certain sanctioned entities listed in supplement no. 4 to this part. In addition, these sections include license review standards for export license applications submitted as required by these sections. It should also be noted that part 764 of the EAR prohibits exports, reexports and certain transfers of items subject to the EAR to denied parties.
- Section 744.21 imposes restrictions for exports, reexports and transfers (in-country) of specified items for certain 'military end uses' in the People's Republic of China (PRC) or for a 'military end use' or 'military end user' in Russia or Venezuela.
- Section 744.22 imposes restrictions on exports, reexports and transfers to persons whose property and interests in property are blocked pursuant to Executive Orders 13310, 13448, or 13464.
(2) If controls set forth under more than one section of part 744 apply to a person, the license requirements for such a person will be determined based on the requirements of all applicable sections of part 744, and license applications will be reviewed under all applicable licensing policies.
(b) Steps. The following are steps you should follow in using the provisions of this part:
- Review end-use and end-user prohibitions. First, review each end-use and end-user prohibition described in this part to learn the scope of these prohibitions.
- Determine applicability. Second, determine whether any of the end-use and end-user prohibitions described in this part are applicable to your planned export, reexport, transfer (in-country) or other activity. See supplement no. 1 to part 732 for guidance. For exports, reexports or transfers (in-country) that are in transit at the time you are informed by BIS that a license is required in accordance with § 744.2(b), § 744.3(b), § 744.4(b) or § 744.6(b) of the EAR, you may not proceed any further with the transaction unless you first obtain a license from BIS (see part 748 of the EAR for instructions on how to apply for a license). The provisions of § 748.4(d)(2) shall not apply to license applications submitted pursuant to a notification from BIS that occurs while an export, reexport, or transfer (in-country) is in transit.
III. Travel Outside the U.S. and International Financial Transactions
When leaving the U.S., it is important to note that traveling with certain items (such as personal laptop computers running encryption software, wireless network hardware/software, and some GPS systems) may require an Export License or an Export License Exception, depending on the travel destination. In general, problematic destinations are those countries which are currently under U.S. embargo, sanction, or other trade restriction; specific examples include Iran, Cuba, Sudan, Syria, and North Korea. NOTE: The application of personal knowledge or technical experience to situations in other countries (e.g., during consulting activities) may also invoke export licensing requirements. Rensselaer personnel can receive assistance from the Rensselaer’s Export Control Office in determining whether a License is required.
U.S. sanction programs change over time, so current Sanctioned Countries information must be obtained from the Treasury Department and the BIS.
In addition to potential travel restrictions, it is also important to note that certain financial transactions with restricted individuals or entities from sanctioned or embargoed countries may be prohibited under OFAC laws and regulations (e.g., fellowship payments made to a researcher in another country). Before agreeing to provide funding to any foreign national, Rensselaer personnel should check with Rensselaer's Export Control Office for assistance in identifying potential restrictions on the transaction.
IV. Activities Involving the Receipt and/or Use of Export Controlled Information/Technology
While the vast majority of work done at the university falls under the FRE and is shielded from Export Controls, the FRE does not apply to export controlled information, technology, software, or items that the university receives from other parties nor does it apply to research conducted using such export controlled information or items. Export controlled information received from other parties cannot be openly shared with certain foreign nationals without an Export License. If a university activity involves the receipt or use of externally obtained export controlled information, items, technology, or software, the primary recipient (e.g., the Principal Investigator) must work with the Office of Human Resources and Rensselaer's Export Control Office to determine, by current citizenship status, those university personnel who can legally access the information or item before the information or item is shared.
All Institute personnel receiving Export Controlled information or items will be asked to sign the “Certification on the Handling of Export Controlled Information” acknowledging their receipt of Export Controlled information or items, and their understanding of their responsibilities and obligations regarding the safe handling and use of the information or items. In some cases, in collaboration with Rensselaer's Export Control Office, the primary recipient may be required to develop a Technology Control Plan outlining the specific procedures and safeguards that will be implemented by the researcher to ensure compliance with Export Controls. Before accepting any Export Controlled information, item, technology, or software, Rensselaer personnel should contact Rensselaer's Export Control Office for help in determining potential compliance requirements.
V. Restrictive Trade Practices and Boycotts
Participation in certain restrictive trade practices is prohibited under the EAR. The “anti-boycott” provisions of the EAR prohibit U.S. persons or businesses from participating in any non-U.S. sanctioned foreign government boycott.
Any U.S. person who receives a request that supports a restrictive trade practice, Federal Corrupt Practices Act (FCPA), or a boycott imposed by another country must promptly report the request to the Department of Commerce. Rensselaer's Export Control Office will assist university personnel in determining if the anti-boycott provisions of the EAR apply and in reporting such occurrences to the appropriate authorities.
VI. Information Technology
The review of all campus-wide computer systems and supporting peripherals, including software, hardware and storage, will be reviewed and monitored for compliance with Export Control laws and regulations.
VII. Recordkeeping and Retention Requirements
Rensselaer is required to retain a complete record of all Export Control documentation including but not limited to the Institute’s analysis of license requirements, any issued licenses, shipping documents, and any correspondence related to each export transaction. Original records must be retained for five years from the date of export, re-export, or transfer. Rensselaer's Export Control Office (in conjunction with RAF, HR, VPR, and Provost) is responsible for the retention of export records. It is the responsibility of Rensselaer personnel to forward all relevant export documentation to Rensselaer's Export Control Office for archiving.
Faculty/Researchers
Researchers have the primary responsibility for:
- Identifying research activities where there might be Export Control issues.
- Notifying the appropriate university officials of the issues.
- Working with Rensselaer's Export Control Office to accurately classify items and apply for licenses.
- Ensuring the appropriate protection of all controlled information and technology in their possession.
- Providing all export documentation to Export Control Office for archiving.
Research Administration and Finance (RAF)/Department Administrator/OTC
RAF, department administrators, and/or any other person negotiating contracts or sponsored research agreements have primary responsibility for:
- Identifying and removing from agreements any language that attempts to place restrictions on the university’s ability to publish the research or to place restrictions on the participation or access by foreign nationals.
- Identifying potential Export Control issues arising in conjunction with Material Transfer Agreements, Non-Disclosure Agreements or other licensing agreements and notifying Rensselaer's Export Control Office of such issues.
- Notifying Rensselaer's Export Control Office in the event that such restrictions are accepted.
Schools and Departments
School and department chairs, directors, and deans are responsible for:
- Administering and monitoring their faculty's existing Technology Control Plans.
- Notifying Rensselaer's Export Control Office of any issues that arise regarding the implementation or compliance with, any management plan.
- Assuring all foreign persons comply with HR or ISSSO policy and procedure for Visa application and entry to RPI.
Office of Technology Commercialization (OTC)
The Office of Technology Commercialization is responsible for:
- Identifying potential Export Control issues arising in conjunction with Material Transfer Agreements, Non-Disclosure Agreements or other licensing agreements and notifying Rensselaer's Export Control Office of such issues.
- Complying with its executed TCP.
- Soliciting for and receiving Rensselaer's Export Control Office approval for release and licensing of Rensselaer research results.
- Ensuring that the appropriate certification and/or Technology Control Plan executed for conducting the research and governing its FRE status has been honored and working with Rensselaer's Export Control Office to implement any follow on action as required.
Office of the General Counsel
The Office of the General Counsel serves as the administrator and compliance office for all Rensselaer export control matters. It oversees the Rensselaer Export Control Office providing legal advice and oversight of the Rensselaer’s export management and compliance plan covering campus wide activities.
Rensselaer's Export Control Office is responsible for:
- Monitoring and oversight of the university’s Export Control Program.
- Assisting researchers in determining Export License requirements (in collaboration with the appropriate regulatory bodies).
- Assisting in the preparation of Export License applications.
- Facilitating the development of Technology Control Plans (TCP).
- Coordinating vetting on foreign nationals visiting the university.
- Providing assistance to the Rensselaer community in all export related matters.
- Coordinating and assisting the Office of Human Resources and International Student Services with respect to verification checks, vetting and VISA applications.
- Serving as the primary site of export records retention.
Definition of Terms
The following is a list of definitions of commonly-used terms within the EAR and ITAR. (EAR: 15CFR722 definitions and ITAR: 22CFR 120, et al.)
Source: Definitions reprinted permission of MIT.
U.S. Department of Commerce’s Bureau of Industry and Security administrators of the Export Administration Regulations (EAR).
Commodity Jurisdiction, 15 CFR 734.6.
Commerce Control List, 15 CFR 772.1. The US Department of Commerce list of all export restrictions. Each item on the CCL is categorized by its type and function. The CCL classifies items into 10 categories and 5 groups. If an item is not listed on the CCL, then it is considered “EAR99” which has minimal export restrictions.
(0) Nuclear Materials, Facilities and Equipment, and Miscellaneous; (1) Materials, Chemicals, “Microorganisms,” and Toxins; (2) Materials Processing; (3) Electronics; (4) Computers; (5) Telecommunications and Information Security; (6) Lasers and Sensors; (7) Navigation and Avionics; (8) Marine; and (9) Propulsion Systems, Space Vehicles, and Related Equipment.
Each of the 10 CCL categories is subdivided into five groups representing the types of controlled items: (A) Equipment, Assemblies, and Components; (B) Test, Inspection and Production Equipment; (C) Materials; (D) Software; and (E) Technology
Under the EAR, may refer to one of the countries subject to §746 Embargoes and Other Special Controls, or to a country included in one of the Country Groups defined in Supplement No. 1 to §740 and used in conjunction with §740 license exceptions. Under the ITAR, the term may refer to a country identified in ITAR §126.1, Prohibited Exports, Imports, and Sales to or from Certain Countries.
Department of State’s Directorate of Defense Trade Controls (DDTC) administrator of the International Traffic in Arms Regulation (ITAR).
The release of information or technology subject to export control to any foreign national in the United States, including graduate students and training fellows. Deemed exports may occur through such means as a demonstration, oral briefing, or plant visit, as well as the electronic transmission of non-public data that will be received abroad. This exchange is “deemed” to be an export to the country of the foreign national.
The release of technology by a foreign national who has been licensed to receive it to the national of another foreign country who has not been licensed to receive the technology.
Any item or technical data designated in the ITAR's United States Munitions List (USML), including any technical data recorded or stored in any physical form, models, mock-ups, or other items that reveal technical data directly relating to a “defense article” listed in the USML. "Defense article" does not include basic marketing information on function, purpose, or general system descriptions. (22 CFR §120.6)
Furnishing 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; or furnishing ITAR-controlled “technical data” to non-US persons anywhere, requires authorization from the State Department. (22 CFR §120.9). While transfer of public domain information is not a defense service, the State Department has said that "it is seldom the case that a party can aggregate public domain data for purposes of application to a defense article without using proprietary information or creating a data set that itself is not in the public domain." [78 FR 31445].
A term used for EAR-controlled items that can be used both in commercial applications and in military and other strategic uses.
Export Administration Regulations, 15 CFR 730-774.
Export Control Classification Number, 15 CFR 738.2. The five-character alphanumeric classification that is used to identify items on the Commerce Control List.
Information that is released by instruction in catalog courses and associated with teaching laboratories of academic institutions. This educational information is not subject to Export Controls.
What the item is used for
Any oral, written, electronic (such as fax, internet, etc.) or visual disclosure, shipment, transfer or transmission outside the U.S. to anyone, including a U.S. citizen, of any commodity, technology (information, technical data, or assistance), software/codes, or equipment. The EAR is similar to the ITAR in that it covers intangible exports of “technology,” including source code, as well as physical exports of items.
Any item, information, assistance, technology, or technical data which can be considered an Export.
A written authorization provided by the appropriate governing regulatory authority detailing the specific terms and conditions under which an export or re-export of Export Controlled items is allowed. Authority may be issued by the Bureau of Industry and Security, the DDTC authorizing an export, re-export, or other regulated activity.
Any person who is not a native or national of the United States unless lawfully admitted for permanent residence in the United States (for example, as the holder of a permanent resident alien visa or “green card.”) Any foreign corporations, business associations, partnerships, trusts, societies or any other foreign entities or groups, as well as international organizations and foreign governments, are considered “Foreign National(s).”
Under the ITAR, a natural person who is neither a lawful permanent resident (green card holder) nor a protected individual (citizen or national of the U.S., special agricultural worker, admitted refugee or person granted asylum), a foreign entity (corporations, business associations, partnerships, etc.) not incorporated or organized to do business in the U.S., an international organization, a foreign government or an agency or subdivision of a foreign government. [Usage note: this website uses "non-U.S. person" as an objective counterpart to "foreign person" for clarity when being read by people of all nationalities.]
Basic or applied research where resulting data, technology, or other information is made available publicly with minimal or no access costs (e.g. essentially free information) within the scientific community, 15CFR734.8. Also as defined by National Security Directive 189 (NSDD 189). Information that results from Fundamental Research is not subject to Export Control.
No license is required to disclose information to foreign national if it is published and is generally accessible to the public and provided the fundamental research is basic and applied in science and engineering, and conducted at an accredited institution of higher education located in the U.S., 15CFR734.
DoE's 10 CFR 810 and OFAC's sanctions programs identify activities which are in the scope of the controls, but are already determined to be acceptable and can be conducted without additional approval as "generally authorized." The DoE regulations require the use of a general license to be reported.
International Traffic in Arms Regulation, 22 CFR 120-130. Regulations from the U.S. Department of State that control the export of articles, services, and related technical data whose predominant application is defense.
A commodity, software or technology, 15CFR772.
Nuclear Regulatory Commission Regulations, 10 CFR Parts 40, 70. 110 and 810.
The Department of Treasury’s Office of Foreign Assets Control (OFAC), which is responsible for enforcing specific embargoes and/or sanctions.
Countries designated by OFAC as having trade sanctions imposed by the United States for reasons of anti-terrorism, non-proliferation, narcotics trafficking, or other reasons. Sanctions vary among the countries.
There is no specific definition of “ordinarily resident in” under the OFAC regulations. Under US law, “Ordinarily Resident In” generally includes:
- Individuals, regardless of nationality, residing in an embargoed country.
- Individuals holding an embargoed country passport and a non-permanent visa (student, visitor, temporary, business) for any country outside the US.
- Individuals holding an embargoed country passport and a non-permanent visa (visitor, temporary, business) for the US.
Other indicators might include:
- paying taxes in the country
- immigration status in the country
- having a year round residence in the country having a residence in the country
- the percentage of the year spent in the country
Applies only to ITAR. Information that is published and generally accessible or available to the public in the following places:
- Newsstands and bookstores
- Subscriptions that are available without restriction to any individual who desires to obtain or purchase the published information
- Second-class mailing privileges granted by the U.S. government
- Libraries open to the public or from which the public may obtain documents, including most university libraries
- Published patents
- Unlimited distribution at a conference, meeting, seminar, trade show, or exhibition, generally accessible to the public in the United States
- Public release in any form after approval by the cognizant U.S. government department or agency
- Through fundamental research in science and engineering at accredited institutions of higher learning in the United States where the resulting information is ordinarily published and shared broadly in the scientific community.
Applies only to EAR. Software and technology (except 5D002 encryption software) that:
- is or will be published,
- arises during, or result from, fundamental research,
- is educational,
- is included in certain patent applications.
Publicly available software and technology are excluded from EAR controls — but note that published 5D002 encryption software remains subject to the EAR, except publicly available 5D002 encryption object code when the corresponding source code is publicly available. For software and technology in the scope of the EAR, it may be made publicly available by a person with the right to do so without further authorization from the Commerce Department (except 5D002 encryption software).
Information that is generally accessible to the interested public in any form, including: publication in periodicals, books, print, electronic or any other media available for general distribution to any member of the public or to a community of persons interested in the subject matter, such as those in a scientific or engineering discipline, either free or for a price that does not exceed the cost of reproduction and distribution; readily available at libraries open to the public or at university libraries; patents and open (published) patent applications available at any patent office; release at an open conference, meeting, seminar, trade show, or other open gathering.
Possible indicators of an unlawful diversion or an abnormal or suspicious circumstance.
An actual shipment or transmission of items subject to the EAR from one foreign country to another foreign country; or release of technology or software subject to the EAR to a foreign national outside the United States. The ITAR and the EAR impose restrictions on the re-export of U.S. goods, i.e., the shipment or transfer to a third country of goods or technology originally exported from the United States, without proper authorization.
Individuals and entities with whom the university and its employees may not to export to or engage in controlled transactions. These include the Denied Persons List, Entity List, and Unverified List (Department of Commerce); the Debarred Parties Lists (Department of State); and the Specially Designated Nationals and Blocked Persons List (Department of Treasury).
University research, development, or testing subject to:
- publication restrictions
- access and dissemination controls
- federally funded research with contract-specific national security restrictions
- accepting third-party controlled items or information
- providing access to, or defense services on, a defense article.
Restricted research is subject to EAR and ITAR regulations, and a license or other government approval may be required for foreign national participation.
Some items are subject to the ITAR or the EAR if they have properties, as a result of development, that meet or exceed the criteria in the US Munitions List (ITAR) or the Commerce Control List (EAR) — this is the "catch" — and are not a fastener or other low-control item — this is the "release". There are web tools for the ITAR and the EAR to help determine whether an item is "specially designed".
Substantive contacts include regular travel to countries in Country Group D:5; recent or continuing contact with agents, brokers, and nationals of such countries; continued demonstrated allegiance to such countries; maintenance of business relationships with persons from such countries; maintenance of a residence in such countries; receiving salary or other continuing monetary compensation from such countries; or acts otherwise indicating a risk of diversion.
Technical Assistance Agreement – an agreement for the performance of a defense service(s) or the disclosure of technical data, 22 CFR 120.22.
Instruction, skills training, working knowledge, and consulting services, which may involve the transfer of technical data. Applies only to EAR.
Data in the form of 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, read-only memories.
As used in the management of export controls, any specific information and know-how (whether in tangible form, such as models, prototypes, drawings, sketches, diagrams, blueprints, manuals, or 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.
MIT tool to safeguard ITAR, EAR, and other restricted material. Lays out a security plan and identifies responsible parties. Must be approved by Vice President for Research before restricted material can be brought onto campus.
Usual and reasonable kinds and quantities of tools of trade (commodities, software, and technology) for use in a lawful enterprise or undertaking of the exporter providing the transaction meet the requirements of paragraphs (a)(2)(i)(A) and (a)(2)(i)(B) of 15 CFR Part 740.9.
The USML includes articles, services, and related technical data designated as defense articles and defense services pursuant to the Arms Export Control Act (AECA).
Under the ITAR, a natural person who is a lawful permanent resident (green card holder) or a protected individual (citizen or national of the U.S., special agricultural worker, admitted refugee or person granted asylum); or any entity (corporation, business association, partnership, etc.) incorporated in the U.S., or any federal, state, or local governmental entity. The EAR is effectively the same, although without explicit definition: the deemed export rule, for instance, applies to "foreign nationals" but excludes permanent residents and protected individuals. (Note that for the purpose of §744.6 Restrictions on Certain Activities of U.S. Persons, the EAR adds "any person in the United States".) [Usage note: this website uses "non-U.S. person" as an objective counterpart to "foreign person" for clarity when being read by people of all nationalities.]
Frequently Asked Questions
Basically, any research activity may be subject to export controls if it involves the actual export or “deemed” export of any goods, technology, or related technical data that is either: i) “dual use” (commercial in nature with possible military application) or ii) inherently military in nature.
Work in the following areas is considered high risk:
- Engineering,
- Space sciences,
- Computer Science,
- Biomedical research with lasers,
- Research with encrypted software,
- Research with controlled chemicals, biological agents, and toxins.
In addition, any of the following raise export control questions for a project:
- Sponsor’s restrictions on the participation of foreign persons in the research.
- Sponsor’s restrictions on the publication or disclosure of the research results.
- Indications from the sponsor or others that export-controlled information, controlled unclassified information (CUI) or technology will be furnished for use in the research.
- The physical export of controlled goods or technology is expected.
It is the researcher’s, and particularly the PI’s, responsibility to know the objective and subjective aspect of the research engagement. This requires the awareness of a project’s use and end-use, concern for national security and foreign policy with respect to the use of the research activity in a way that is contradictory to U.S. concerns and may contribute to undesirable outcomes.
“Export” is defined not only as a physical transfer/disclosure of an item outside the U.S., but also as a transfer/disclosure in any form of a controlled item or information within the U.S. to anyone who is a “foreign person” (refer to question # 14). This is called the “deemed export” rule (refer to question # 16). As a result, unless an exclusion or exemption is available, the Rensselaer Polytechnic Institution may be required to obtain prior governmental approval (in the form of an export license) before allowing the participation of a “foreign person” faculty, staff, or student in affected research. In some cases, a license may not be available based on the country involved.
In addition to affecting who may participate in the research project on campus, the following are examples of situations in which a license may be required:
- Presentation/discussion of previously unpublished research at conferences and meetings where foreign person scholars may be in attendance.
- Research collaborations with foreign persons and technical exchange programs.
- Transfers of research equipment abroad.
- Foreign scholars, foreign persons visiting RPI’s laboratories.
- Releasing, transferring export controlled born technology during the research effort.
A “yes” answer to any of the following questions indicates that the research, information to be released or research tool to be used might be subject to export controls and should be reviewed by the Export Control Office:
- Research that involves export restricted science and engineering areas including defense articles or services, missiles, chemical & biological weapons, nuclear technology, work with designated select agents, high performance computing, and encryption technology.
- Research that involves the use of controlled unclassified information (CUI), export controlled information, items, or technology (e.g., export restricted information, controlled IR cameras, government controlled data, or technology received from outside the university).
- Research that involves the transfer of project information, equipment, materials, or receive financial support from sources outside of the U.S. (e.g., sending project deliverables or providing funding via a subcontract)
- Any part of the research will take place outside the U.S. or will include international travel (e.g., field work outside the U.S., attending an international conference to present results, or providing professional services)
- Research that involves foreign individuals as faculty, visiting scientists or collaborator(s), or other foreign entities (e.g., Non-U.S. Company, university, or other organization).
- “Foreign Person” graduate students, trainees, or other Rensselaer employees that will be or are involved in the research and the research has not yet been determined to be Fundamental Research by the federal government awarding agency or RPI’s Export Control Office.
- Uncertain of the technology developed, discovered (born) during the course of the research project.
It is the PI’s responsibility, by U.S. Federal Law, to be knowledgeable of a foreign person’s citizenship and VISA compliance status, while under their supervision; this is independent of the PI being a lawyer. The PI’s export control responsibility, again under U.S. Federal Law, covers the work and tools that a foreign person will use during the performance of the work. It is also the PI that will be the first person held responsible for any export control violation if one should occur. As such, fines and penalties may be applicable in addition to negatively impacting Rensselaer’s name and reputation. To rely on “I am not a lawyer” is inappropriate because the responsibility remains whether or not a signature is obtained on a requested documentation.
It is important to be cognizant in the case of assigning a project to a “foreign person” that a deemed export license may be required before that individual can be involved, in any manner, with the details of a project. The deemed license (refer to question # 18) application can take several months to be processed and there is no assurance that it will be granted. Also, there is no way to facilitate or expedite the government’s review process. During the wait period, the “foreign person”, for whom the deemed license application is made, cannot in anyway be associated with the research project.
The term “Export Controls” refers collectively to the body of U.S. laws and regulations that govern the export, transfer or release of controlled items or information to a “foreign person’ or a “foreign entity” or a foreign country. The regulations are very complex and the interdependency of a section within a regulation or the applicability of the various laws and regulations require careful review.
The term Export, as used in export control regulations has an expansive meaning. Generally, an export includes any: (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, of any technology, software or technical data to any foreign person wherever located; or (4) actual use or application of covered technology on behalf of or for the benefit of any foreign entity or person anywhere. The official definition of export under the EAR and ITAR, 15 CFR §734.13 and 22 CFR §120.17, respectively, should be consulted when determining whether a specific act constitutes an export. By way of the regulations, exporting covered technology, items, software may preclude the participation of foreign graduate students in research without first obtaining license from the appropriate government agency.
Therefore, an export occurs whenever any item (i.e., any commodity, software, technology, or equipment) or information is forwarded, transferred or released from the U.S. to a foreign destination or to a foreign person in the U.S. or abroad. Some examples of export activities include: the shipment of items, written or oral communications, hand-carrying items when traveling, providing access to or visual inspection of equipment or facilities, and providing professional services. It can be:
- Any oral, written, electronic or visual disclosure, shipment, transfer or transmission outside of the United States to anyone, including a U.S. citizen, of any commodity, technology (information, technical data, or assistance) or software/codes.
- Any oral, written, electronic or visual disclosure, transfer or transmission to any person or entity of a controlled commodity, technology or software/codes with an intent to transfer it to a non-U.S. entity or individual, wherever located (even to a foreign student or colleague at the Rensselaer).
- Any transfer of these items or information to a foreign embassy or affiliate.
There are three primary government agencies that promulgates, administers and enforces export regulations:
ITAR - International Traffic in Arms Regulations, promulgated by the U.S. Department of State
EAR - Export Administration Regulations promulgated by the U.S. Department of Commerce
OFAC- Office of Foreign Assets Control promulgated by the U.S. Department of Treasury
- The United States Department of Treasury’s Office of Foreign Assets Control (OFAC) through the foreign asset control regulations, 31 CFR §§500-599, administers and enforces economic and trade sanctions based on U.S. foreign policy and national security goals against targeted foreign countries, terrorists, and those engaged in activities related to the proliferation of weapons of mass destruction.
- The United States Department of Commerce through its Export Administration Regulations (EAR), Title 15, §§730-774 of the Code of Federal Regulations. For a list of controlled technologies, see 15 CFR §774, Supplement I.
- The United States Department of State (which controls the export of “defense articles and defense services”) under the International Traffic in Arms Regulations (ITAR), 22 CFR §§120-130. For a list of controlled technologies, see 22 CFR §121.1.
- In addition, the U.S. Customs and Border Protection (USCBP) is also charged with the enforcement of these regulations along with imports/exports at ports of entry or departure from the U.S. of all tangible items.
- Additional government agencies, but not limited to, are the Department of Energy (DOE), Nuclear Regulatory Agency (NRC), National Aeronautics and Space Agency (NASA), Department of Transportation (DOT) and Department of Agriculture (DOA).
- 10. How do I know if my item is subject to the Export Administration Regulations (EAR)?
- The EAR controls all items (commodities, software, or technology) that are: 1) of U.S. origin; or 2) are made with U.S. materials, technology, or know-how; or 3) are located in the U.S. AND that are NOT under the exclusive jurisdiction of another regulatory body (e.g., ITAR or Nuclear Regulatory Commission) or that are NOT shielded from export controls under the Fundamental Research, Educational Information, or Public Information exclusions.
The EAR controls all items (commodities, software, or technology) that are:
1) of U.S. origin; or
2) are made with U.S. materials, technology, or know-how; or
3) are located in the U.S. AND that are NOT under the exclusive jurisdiction of another regulatory body (e.g., ITAR or Nuclear Regulatory Commission) or that are NOT shielded from export controls under the Fundamental Research, Educational Information, or Public Information exclusions.
Fundamental Research, as defined in the export control regulations, 22 CFR §120.11 and 15 CFR §734.8(c) includes basic or applied research in science and/or engineering at an accredited institution of higher education in the United States where the resulting information, in some cases, is ordinarily published and shared broadly in the scientific community and, in other cases, where the resulting information has been or is about to be published. Fundamental Research (FR) is distinguished from research that results in information that is restricted for proprietary reasons or pursuant to specific U.S. government access and dissemination controls. University research will not be deemed to qualify as fundamental research, 22 CFR §120.11(a)(8)(i) and (ii) if:
- The university or research institution accepts any restrictions on the publication of information resulting from the research, other than limited prepublication reviews by research sponsors to prevent inadvertent divulging of proprietary information provided to the researcher by the sponsor; or
- The research is federally funded and specific access or dissemination controls regarding the resulting information have been accepted by the university or the researcher.
- Fundamental Research is not defined or to be interpreted as most researcher expect or interpret in the common or the classical definition. It is a federal regulatory term and has a federal definition that covers the accessibility of all research results, i.e., “research results published without any restrictions, hold back or decision not to release to the public, and the unrestricted engagement of non-proscribed foreign persons”, refer to question # 11.
- With respect to Federal Export Control Laws, i.e., the EAR, ITAR, NRC and DOE, fundamental research is strictly defined and addresses only the unrestricted publication of all research results without any restrictions. A researcher, and particularly a PI, needs to be cognizant that FR does have export control compliance requirement associated with the execution of the research work, activity, software programs used and other tools (equipment, instrumentation, computer systems, etc.) to which a foreign person may have access and use during the course of the research. The tools or the software program and/or the methodology for conducting the work could be “deemed” export controlled and may require a license. It is important to ascertain a way to conduct the research work and how the research tools will be used to remain within the law or not transgress inadvertently into an unintentional violation. It is the PI who is in the best position to understand the capabilities of the tools, software and methodology to address export control questions of concern before proceeding. The Export Control Office should be contacted to help in addressing these concerns.
Fundamental Research Exclusion (FRE) is an exclusion granted to an accredited institution of higher education located in the U.S. It is defined by the National Security Decision Directive 189 (NSDD189) as “any basic or applied research in science and engineering, the results of which are ordinarily published and shared broadly within the scientific community…” In order to qualify as Fundamental Research, the research must be conducted free of any publication restrictions and without any access or dissemination restrictions. Research that qualifies as Fundamental Research is NOT subject to export controls as provided for under the federal EAR regulations, 15 CFR§734.8, and ITAR, 22 CFR §120.11(a)(8). It is critical to note that the Fundamental Research Exclusion will be lost if a researcher agrees to any “side-deals” allowing sponsors the ability to review and approve publications or to control access to the project or project results. Loss of the Fundamental Research Exclusion can quickly put your research in jeopardy of non-compliance with export controls. Seeking the help of the Export Control Office, exportcontrol@rpi.edu, is recommended.
A “foreign person” is defined as any natural person/individual who is not a U.S. citizen, or is not a lawful permanent resident of the U.S. (i.e., does not have a green card), or who does not have refugee or asylum status.
A “foreign entity” is any corporation, business, or other entity that is not incorporated to do business in the U.S. This includes international organizations, foreign governments, or any agency of a foreign government.
A Deemed Export refers to the release or transfer of information or technology to any “foreign person” 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.
An Export License is a written authorization provided by the federal government granting permission for the release or transfer of export controlled information or item under a defined set of conditions.
Determining when you need an export license can be very complicated. The Export Control Office 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. Contact the Export Control Office at exportcontrol@rpi.edu for help with export controls.
The following are examples of the types of Rensselaer activities that may trigger the need for an export license (see question # 18) or deemed export license:
- Research in controlled or restricted technical areas (e.g., defense articles (22 CFR §120.6, https://www.ecfr.gov/cgi-bin/text-idx?SID=86008bdffd1fb2e79cc5df41a180750a&node=22:1.0.1.13.57&rgn=div5#se22.1.120_16)
- or services (22 CFR §120.9, https://www.ecfr.gov/cgi-bin/text-idx?SID=86008bdffd1fb2e79cc5df41a180750a&node=22:1.0.1.13.57&rgn=div5#se22.1.120_19), missiles, nuclear technology, satellites, chemical/biological weapons, encryption)
- Research creating export control items, technology, software born during the research effort.
- Research involving the use of export restricted information obtained from external sources
- Research involving collaborations with “foreign persons: located at RPI or overseas
- Research involving travel or field work conducted overseas
- Research involving the transfer or shipment of tangible items or equipment overseas
- Presentations at meetings or conferences of unpublished information not protected under the Fundamental Research or Educational Information exclusions
- Research involving the provision of financial support or services outside the U.S.
- Training foreign persons or foreign entity on the operation, installation (including on-site installation), repair, maintenance (checking), overhaul and refurbishing of a controlled item. Some 600 series ECCN have replaced “and” with “or”.
For most 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.
Yes, export controls apply to all international research activities. In general, basic research conducted at the institution 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 persons. However, in cases where Rensselaer research involves collaborations with foreign persons, the Institution must perform a review of the research and document that the Fundamental Research Exclusion or other exclusion does or does not apply.
Yes, export controls apply to all research activities regardless of funding status or source.
An Export License Exception is a special authorization that allows one to export or re-export, under very specific conditions, items that would otherwise require an export license. Export License Exceptions are detailed in EAR, 15 CFR §740. The Export Control Office, exportcontrol@rpi.edu, will help in assessing and determining if an exception is applicable.
A Technology Control Plan (TCP) is a document drafted by the researcher in collaboration with the Export Control Office and in those situation with 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. Contact exportcontrol@rpi.edu for more information on TCPs.
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 (CCL). By far, the vast majority of U.S. origin goods are classified as EAR99, and under most exports, deemed export, etc. circumstances, do not require a license for export. NOTE: there are embargoes that restrict the export of EAR99 items, commodities, information, and software.
The Educational Information Exclusion, is information that is normally taught or released by a university as part of the normal instruction and listed in a course catalog or in an associated teaching laboratory is considered Educational Information and, as provided for under the federal EAR regulations (15 CFR§734.9), is NOT subject to export controls. There is similar definition in the ITAR.
Public Information Exclusion is information that is already published or is out in the public domain is considered public information and, as provided for under the federal EAR regulations (15 CFR§734.7; 15 CFR§734.10 and 22 CFR §120.11(a) as Public Domain information), is NOT subject to export controls. Examples of information in the public domain include:
- Books, newspapers, pamphlets.
- Publically 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.
Information becomes “published” or considered as “ordinarily published” when it is generally accessible to the interested public through a variety of ways. Publication in periodicals, books, print, electronic or any other media available for general distribution to any member of the public or to those that would be interested in a scientific or engineering discipline. Published or ordinarily published material also includes the following:
- Readily available at libraries open to the public;
- Issued patents; and,
- Releases at an open conference, meeting, seminar, trade show, or other open gathering.
A conference is considered “open” if all technically qualified members of the public are eligible to attend and attendees are permitted to take notes or otherwise make a personal record (but not necessarily a recording) of the proceedings and presentations. In all cases, access to the information must be free or for a fee that does not exceed the cost to produce and distribute the material or hold the conference (including a reasonable profit).
Research conducted at Rensselaer that includes or uses export controlled, controlled unclassified information (CUI) or restricted information or items obtained from an outside entity does not qualify for the Fundamental Research Exclusion and is subject to all export controls. Before export controlled information or an item is received by the researcher, the incoming export controlled information must be received by Rensselaer’s Director of Research Administration and Finance (RAF), and reviewed to ascertain the nature of the information, discussed with the ECO to determine the need, use and potential exposure of a foreign person to the information. The researcher will also need to complete the Certification on the Handling of Export-Controlled Information prior to release by RAF. In some cases, a formal Technology Control Plan (see question # 24) may be required depending on the specific circumstances. Contact exportcontrol@rpi.edu for help in determining your requirements.
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 persons 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 as to recipient, end-user, host country and end-use, is required to determine if an export license is required to export as defined in question # 18. Contact exportcontrol@rpi.edu for help in determining your license requirements.
Export controls apply to all U.S. persons, at all times, and also to foreign person in the U.S. It is important to understand and comply with all the obligations under the export control regulations. If a faculty, PI, researcher, administrator, student is consulting in a restricted technology area (e.g., on dual-use technologies, military (either EAR or ITAR) or select agent work), then the individual may need an export license depending on the country associated with the engagement, details as to the information to be provided, who will be the recipient/end-user, and what the recipient/end-user intend to do with it as an end-use. If the destination is a foreign person of a embargoed or sanctioned country (refer to question # 33), or end-user is a proscribed foreign person then in most cases any consulting activities would be prohibited regardless of the subject matter. For more information, contact the Export Control Office.
As of November 2017, the U.S. government administers and enforces technical, military and economic sanctions targets in support of foreign policy, national security or the economy. These sanctions target foreign countries and regimes, business entities and individuals that covers national security, cyber-security, economic policy, and terrorism. In varying degrees, the countries currently sanctioned by the U.S., and many individuals and entities of the international community, are Afghanistan, Balkans (Albania, Bosnia & Herzegovina, Bulgaria, Croatia, Kosovo, Montenegro, Romania, Serbia, Slovenia and Macedonia), Belarus, Burundi, Burma, Central African Republic, Cuba, Democratic Republic of the Congo, Eritrea, Haiti, Iran, Iraq, Lebanon, Libya, North Korea, People’s Republic of China, Southern Sudan, Russian Federation, Somalia, Syria, Ukraine/Russia-related, Yemen, Venezuela and Zimbabwe. Many other countries have limited sanctions on specific items and technology that require an export license to permit exporting or re-exporting to an entity or an individual.
The list of countries is always subject to change and therefore checking with the various government agencies is mandatory, particularly OFAC https://www.treasury.gov/resource-center/sanctions/Programs/Pages/Programs.aspx, prior to any activity which will involve a foreign person, entity or country. Contacting the Export Control Office is recommended before entering into any discussions with respect to end-use and end-user.
The Rensselaer Export Control Office of the General Counsel Office was instituted to respond to compliance questions and concerns, and guide PIs, faculty, staff and students through the complex set of export control regulations.
To qualify as Fundamental Research Exclusion (definition question # 13), research must be based at an accredited institution of higher education located in the United States. If the research includes work to be conducted 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 is required prior to the start of the project/program. Contact exportcontrol@rpi.edu for help in determining your license requirements.
a. The CITI export control training program is available to all Rensselaer personnel engaged in any collaboration, financial exchange or technology transfer or release to a foreign person, entity or country, http://www.CITIprogram.org, modules 16804, 16801, 16802, 16810 and 16812. The CITI export control training program is strongly recommended for all on campus, as it will provide an overview of these complex regulations. Greater detail as to compliance issues are encouraged by contacting the Rensselaer Export Control Office exportcontrol@rpi.edu, before getting involved in an unintentional compliance violation.
b. The Export Control Office is also available for one-on-one or department training sessions. It is recommended that these request be coordinated through the department and establish a schedule for periodic review. Through the Provost’s Department Chairs and Heads meeting, export control issue and regulations change are provided for distribution within the respective organizations. It is strongly recommended for all on campus, as it will provide an overview of these complex regulations, and encourage asking of questions of the Rensselaer Export Control Office before getting involved in an unintentional compliance violation.
Sensitive Technologies
The International Traffic in Arms Regulations (ITAR), 22 CFR Parts 120-130, as amended December 2018, includes “defense article or service”[1], software, technology that is designed, developed, configured, adapted or modified for a military application.
The Export Administration Regulations (EAR), 15 CFR Parts 730-774, as amended December 2018, is a complicated regulation and includes a detail set of specification known as the Commerce Control List (CCL) controlling dual–use and military technologies, i.e., “Item”[2], technology and software. It is advised not to rely on a simple list of products, software or technologies as it increases the risk of deriving the wrong conclusion. For example, you may think you need a license when you don't, or think you don't need a license when you really do.
The ITAR and the EAR are a different set of regulations, particularly in their international application. In the process of classifying or categorizing an “Item” or a “defense article or service”, you need to start with whether your device or technology is ITAR or EAR controlled and in that order of assessment. DO NOT "self-blind."
The following is a partial map of controlled “items." In many situations, each item/commodity may include or be applicable to another “Item”:
- Equipment to develop or produce the item;
- Materials required to produce the item;
- Software to develop, produce, or use the item;
- Technology to develop, produce, or use the item; or
- Parts, components, attachments, and/or accessories
[1] 22 CFR Part 120.6 “defense articles” and Part 120.9 “defense services”
[2] 15 CFR 772 “definitions”
- Weapons: firearms, shotguns, silencers, guns, flame throwers, ammunition
- Missiles, rockets, launch vehicles, power plants, advanced composite ablative materials
- Bombs, mines: equipment for detecting/detonating
- Explosives, propellants, incendiary agents
- Military ships and naval systems; amphibious vehicles
- Military aircraft (including surveillance, aerial mapping); inertial navigation systems, inertial measurement units (IMUs), Altitude and Heading Reference Systems (AHRS); unmanned aerial vehicles; ground effect machines
- Protective personnel equipment (including body armor, radar/infrared-resistant clothing)
- Military electronics (including underwater sound equipment, radar, military computers)
- Electronic intelligence, surveillance, or monitoring systems (and systems to counteract these)
- Infrared sensors (cameras, focal plane arrays, image intensification, night sighting)
- Carbon/carbon billets and preforms with 3+D reinforcement
- Carbon/carbon and metal matrix composites
- Chemical agents (nerve agents, vesicant agents, incapacitating agents) and their precursors; biological agents; tear gases, defoliants; equipment to handle or protect against any of these
- Spacecraft (including satellites);
- radiation-hardened integrated circuits;
- Nuclear weapons; military radiation detection/measurement
- Directed energy weapons (laser, particle beam, radio)
- Submersible vessels (manned or unmanned, tethered or untethered)
- Nuclear reactors, equipment for nuclear fuel production or heavy water production
- Composite structures or laminates
- Body armor
- Reduced observable (stealth) materials
- Human, animal, and plant pathogens, genetic elements, genetically-modified organisms
- Chemical weapons, chemicals, precursors
- Numerically controlled machine tools and optical finishing tools
- Radar, microwave systems and components
- Sensors and detectors: acoustic, optical, imaging, pressure items and associated equipment
- Aircraft and aircraft parts: UAVs; missiles, satellites
- Semiconductor devices: compound semiconductor, high temperature, radiation hardened
- Semiconductor device manufacturing equipment, materials, technology
- Telecommunications systems, surveillance devices
- Optical fiber manufacturing, materials and technology
- Encryption systems, software
- Infrared sources and detectors
- Inertial navigation systems
- Autonomous submersible vehicles
- Gas turbine engines and associated equipment and parts
- Space launch vehicles
- Unmanned aerial vehicles
Technology Alert List
The following is a list of fields specified by the Department of State as having potential "dual use" for military purposes. If you work in any of the listed areas, you may be required to give detailed information about your background and intentions as part of the Technology Alert List's Visa Mantis security check.
These include technologies associated with:
- Warheads and other large caliber projectiles
- Reactive armor and warhead defeat systems
- Fusing and arming systems.
- Electronic countermeasures and systems
- New or novel explosives and formulations
- Automated explosive detection methods and equipment
Technologies associated with production and use of nuclear material for both peaceful and military applications. Included are technologies for:
- Enrichment of fissile material
- Reprocessing irradiated nuclear fuel to recover produced plutonium
- Production of heavy water for moderator material
- Plutonium and tritium handling
Also, certain associated technologies related to nuclear physics and/or nuclear engineering. Includes materials, equipment or technology associated with:
- Power reactors, breeder and production reactors
- Fissile or special nuclear materials
- Uranium enrichment, including gaseous diffusion, centrifuge, aerodynamic, chemical, Electromagnetic Isotopic Separation (EMIS), Laser Isotope Separation (LIS)
- Spent fuel reprocessing, plutonium, mixed oxide nuclear research Inertial Confinement Fusion (ICF)
- Magnetic confinement fusion
- Laser fusion, high power lasers, plasma
- Nuclear fuel fabrication including Mixed Oxide (uranium- plutonium) fuels (MOX)
- Heavy water production
- Tritium production and use
- Hardening technology
These include ballistic missile systems, space launch vehicles and sounding rockets and Unmanned Air Vehicles (UAV) (including cruise missiles, target drones, and reconnaissance drones). The listed technologies are associated with rocket systems and UAV systems. The technology needed to develop a satellite launch vehicle is virtually identical to that needed to build a ballistic missile.
Rocket System and Unmanned Air Vehicle (UAV) Subsystems
Propulsion technologies include solid rocket motor stages, and liquid propellant engines. Other critical subsystems include re-entry vehicles, guidance sets, thrust vector controls and warhead safing, arming and fusing. Many of these technologies are dual-use. Technologies include:
- Liquid and solid rocket propulsion systems
- Missile propulsion and systems integration
- Individual rocket stages or staging/separation mechanism
- Aerospace thermal (such as superalloys) and high- performance structures
- Propulsion systems test facilities
Navigation, Avionics and Flight Control Useable in Rocket Systems and Unmanned Air Vehicles (UAV)
These capabilities directly determine the delivery accuracy and lethality of both unguided and guided weapons. The long- term costs to design, build and apply these technologies have been a limiting proliferation factor. Technologies include those associated with:
- Internal navigation systems
- Tracking and terminal homing devices
- Accelerometers and gyroscopes
- Rocket and UAV and flight control systems.
- Global Positioning System (GPS)
The technology used to produce chemical and biological weapons is inherently dual-use. The same technologies that could be applied to develop and produce chemical and biological weapons are used widely by civilian research laboratories and industry; these technologies are relatively common in many countries. Advanced biotechnology has the potential to support biological weapons research. In the biological area, look for interest in technologies associated with:
- Aerobiology (study of microorganisms found in the air or in aerosol form)
- Biochemistry
- Pharmacology
- Immunology
- Virology
- Bacteriology
- Mycology
- Microbiology
- Growth and culturing of microorganisms
- Pathology (study of diseases)
- Toxicology
- Study of toxins
- Virulence factors
- Genetic engineering, recombinant DNA technology
- Identification of nucleic acid sequences associated with pathogenecity
- Freeze-drying (lyophilization)
- Fermentation technology
- Cross-filtration equipment
- High "DOP-rated filters" (e.g., HEPA filters, ULPA filters)
- Microencapsulation
- Aerosol sprayers and technology, aerosol and aerosolization technology
- Spray or drum drying technology
- Milling equipment or technology intended for the production of micron-sized particles
- Technology for eliminating electrostatic charges of small particles
- Flight training
- Crop-dusting, aerosol dissemination
- Unmanned aerial vehicle (UAV) technology
- Fuses, detonators, and other munitions technology
- Submunitions technology
- Computer modeling of dissemination or contagion
- Chemical absorption (nuclear-biological-chemical (NBC) protection)
In the chemical area, look for:
- Organo-phosphate chemistry
- Neurochemistry
- Chemical engineering
- Chemical separation technology
- Pesticide production technology
- Pharmaceutical production technology
- Chemical separation technology
- Toxicology
- Pharmacology
- Neurology
- Immunology
- Detection of toxic chemical aerosols
- Chemical absorption (Nuclear-Biological-Chemical (NBC) protection)
- Production of glass-lined steel reactors/vessels, pipes, flanges, and other equipment
- Aerosol sprayers and technology
- Flight training
- Crop-dusting, aerosol dissemination
- Unmanned Aerial Vehicle (UAV) technology
- Fuses, detonators, and other munitions technology
- Submunitions technology
- Computer modeling of dissemination
Satellite and aircraft remote sensing technologies are inherently dual-use; increasingly sophisticated technologies can be used for civilian imagery projects or for military and intelligence reconnaissance activities. Drones and remotely piloted vehicles also augment satellite capabilities. Key-word associated technologies are:
- Remote sensing satellites
- High resolution multi-spectral, electro-optical and radar data/imagery
- Imagery instruments, cameras, optics, and synthetic aperture radar systems
- Ground receiving stations and data/image processing systems
- Photogrammetry
- Imagery data and information products
- Piloted aircraft
- Unmanned Air Vehicles (UAV)
- Remotely-piloted vehicles; and drones
Advanced computers and software play a useful (but not necessarily critical) role in the development and deployment of missiles and missile systems, and in the development and production of nuclear weapons. Advanced computer capabilities are also used in over-the-horizon targeting, airborne early warning targeting, Electronic Countermeasures (ECM) processors. These technologies are associated with:
- Supercomputing, hybrid computing
- Speech processing/recognition systems
- Neural networks
- Data fusion
- Quantum wells, resonant tunneling
- Superconductivity
- Advance optoelectronics
- Acoustic wave devices
- Superconducting electron devices
- Flash discharge type x-ray systems
- Frequency synthesizers
- Microcomputer compensated crystal oscillators
The metallic, ceramic and composite materials are primarily related to structural functions in aircraft, spacecraft, missiles, undersea vehicles, and propulsion devices. Polymers provide seals and sealants for containment of identified fluids and lubricants for various vehicles and devices. High density graphite is used in missile nosetips, jet vanes and nozzle throats. Selected specialty materials (i.e., stealth and the performance of these materials) provide critical capabilities that exploit electromagnetic absorption, magnetic, or superconductivity characteristics. These technologies are associated with:
- Advanced metals and alloys
- Non-composite ceramic materials
- Ceramic, cermet, organic and carbon materials
- Polymeric materials
- Synthetics fluids
- Hot isostatic
- Densifications
- Intermetallic
- Organometals
- Liquid and solid lubricant
- Magnetic metals and superconductive conductors
Technologies associated with cryptography and cryptographic systems to ensure secrecy for communications, video, data and related software.
Lasers have critical military applications, including incorporation in guided ordinance such as laser guided bombs and ranging devices. Directed energy technologies are used to generate electromagnetic radiation or particle beams and to project that energy on a specific target. Kinetic energy technologies are those used to impart a high velocity to a mass and direct it to a target. Directed energy and kinetic energy technologies have potential utility in countering missiles and other applications.
Look for technologies associated with:
- Atomic Vapor Laser Isotope Separation (AVLIS)
- Molecular Laser Isotope Separation (MLIS)
- High Energy Lasers (HEL) (i.e., laser welders)
- Low Energy Lasers (LEL)
- Semiconductor lasers
- Free electron lasers
- Directed Energy (DE) systems
- Kinetic Energy (KE) systems
- Particle beam, beam rider, electromagnetic guns, Optoelectronics/electro-optics (Europe)
- Optical tracking (i.e., target designators)
- High energy density
- High-speed pulse generation, pulsed power
- Hypersonic and/or hypervelocity
- Magnetohydrodynamics
Sensors provide real-time information and data, and could provide a significant military advantage in a conflict. Marine acoustics is critical in anti-submarine warfare; gravity meters are essential for missile launch calibration. Look for technologies associated with:
- Marine acoustics
- Optical sensors
- Night vision devices, image intensification devices
- Gravity meters
- High-speed photographic equipment
- Magnetometers
Marine technologies are often associated with submarines and other deep submersible vessels; propulsion systems designed for undersea use and navigation and quieting systems are associated with reducing detectability and enhancing operations survivability. Look for technologies connected with:
- Submarines and submersibles
- Undersea robots
- Marine propulsion systems
- Signature recognition
- Acoustic and non-acoustic detection
- Acoustic, wake, radar and magnetic signature reduction
- Magnetohydrodynamics
- Stirling engines and other air independent propulsion systems
Technologies associated with:
- Artificial intelligence
- Automation
- Computer-controlled machine tools
- Pattern recognition technologies
Expertise in construction or design of systems or technologies necessary to sustain modern urban societies. (PLEASE NOTE: Urban Planning may not fall under the purview of INA section 212 (a)(3)(a), U.S. technology transfer laws, or any other U.S. law or regulation. However, Urban Planning is a special interest item and posts are requested to refer such visa application requests to CA/VO/L/C for further review.) Look for technologies/skills associated with:
- Architecture
- Civil engineering
- Community development
- Environmental planning
- Geography
- Housing
- Landscape architecture
- Land use and comprehensive planning
- Urban design
Public Domain Exceptions
Information that's available to the public is excluded from export controls.
The ITAR defines "public domain"(§120.11): “Public domain means information which is published and which is generally accessible or available to the public." Public domain information is excluded from control as ITAR technical data.
EAR part 734.3(b)(3) refers to “publicly available technology and software" and does not use the expression "public domain." Publicly available technology and software are excluded from control under the EAR — except 5D002 encryption software (although 5D002 object code whose corresponding source code is publicly available is considered to be publicly available).
Although EAR and ITAR share the idea that publicly available information should not be subject to export controls, they differ in how that information can be made publicly available. Information in the scope of the ITAR can be made publicly available only by the means described in 22 CFR §120.11, or with the explicit authorization of the State Department. Information in the scope of the EAR can be made publicly available by a person who is not contractually restricted from doing so. For example, the researcher might be under a non-disclosure agreement which prevents the release of commercial sponsor’s proprietary information, or a government-funded research that contractually restricts the distribution of proprietary information and/or research results.
Further, the regulatory use of "public domain," is not the same as used in discussing intellectual property (IP) rights (copyright, patent, trademark) that have expired (or never existed). This is different interpretation from an export control perspective. For example, a piece of software can be copyrighted (so is not "public domain" from an IP perspective), but is published and generally accessible (so it is "public domain" from an export control perspective) by the public..
"Open source" is not "public domain" in the IP sense, because it typically has an owner who provides it (often for free) under a license granting a wide range of rights and obligations to the user. However, “open source” can be considered to be "public domain" from the export control perspective.
Do Not Self-Blind
It is important when assessing whether or not a technology transfer is subject to export control to not become entrapped in the concept of “self-blinding.” Self-blinding is ignoring a potential export control issue by justifying an unjustified exception to apply, or assuming fundamental research within one’s own interpretation of his/her laboratory work efforts with respect to what will be delivered as a result of the research or engineered solution. An example can occur when developing a product concept and arguing it is basic engineering research in contradiction to the EAR and ITAR definitions, 15 CFR 734.8 and 22 CFR 120.11(a)(8). Additionally, to set ones objective to manage export interpretation and assessment to side step the need to apply for time consuming licenses, TCP, etc. is self-blinding, e.g., is diminished by justifying a controlled Item or a technology as EAR 99 when it is a controlled “item”. This is the wrong objective and can result in an expensive violation. The right objective is to assess and develop the correct classification for the items, and once that is done properly, to seek the least restrictive (legal) paths for complying. Examples are working with a person from a country that is not under export control licensing requirements according to the EAR Country Chart, 15 CFR Supplement #1 to Part 738, or finding an exception that is permissible under the circumstances. It is the best overall effort to proceed legally and responsibly and working to reserve the export license application as an effort of last resort.
Do not self-blind 15 CFR Part 732 Supplement Number 3 (a)(3).