Making sure your research complies with U.S. laws around the transfer of materials and technology
Export controls are United States laws that regulate the transfer of designated materials and technology to foreign persons both within and outside the United States and to other countries. A license from the federal government is necessary prior to such a transfer unless certain exclusions or exceptions apply. Iowa State University is committed to complying with export control laws and has directed the Office of Research Ethics to oversee and administrate ISU’s Export Control Program. For more information on export controls at ISU, see the Export Controls Policy and the Export Control Compliance Plan.
Note: For Ames Laboratory, special procedures apply. If your project is funded through Ames Laboratory, please use the Ames Laboratory contacts indicated in the table below or the specialized web information for Ames Lab if you have access to Ames Laboratory’s Intranet.
Export-Controlled Items: Articles, materials, supplies, software, technology, technical data, technical assistance, services, and other items designated by the United States government as needing to be controlled for export. The designated items are described below under Export Administration Regulations and International Traffic in Arms Regulations.
Export: A transfer out of the United States of export-controlled items.
Deemed Export: The transfer of certain export-controlled information to a foreign person in the United States. The export is “deemed” to have been made to the foreign person’s home country.
Transfer: Transfers can occur in many ways, including, but not limited to: shipping, mailing, e-mailing, and traveling with export-controlled items; having discussions about export-controlled items; and allowing visual inspection of export-controlled items.
U.S. Person A citizen of the United States, a lawful permanent resident alien of the United States (a “Green Card” holder), a refugee, or someone here as a protected political asylee or under amnesty. U.S. persons also include organizations and entities, such as universities, incorporated in the United States.
Foreign Person Anyone who is not a U.S. person. A foreign person also means any foreign corporation, business association, partnership, or any other entity or group that is not incorporated or organized to do business in the United States. Foreign persons may include international organizations, foreign governments, and any agency or subdivision of foreign governments such as consulates.
Three United States government agencies have primary export licensing responsibilities:
The U.S. Department of Commerce, Bureau of Industry and Security, responsible for implementing and enforcing the “Export Administration Regulations”;
The U.S. Department of State, Directorate of Defense Trade Controls, responsible for implementing and enforcing the “International Traffic in Arms Regulations”;
Additional information about these three agencies and their export control regulations and activities appears below. While beyond the scope of this page, individuals should also be aware that other federal agencies may have regulations controlling the export of specific items. Such agencies include:
Nuclear Regulatory Commission (nuclear materials and equipment)
Department of Energy (nuclear technology)
Drug Enforcement Administration (controlled drugs, chemical precursors)
Department of Agriculture (plants, plant products, live animals, select agents and toxins)
Centers for Disease Control (select agents and toxins)
Bureau of Alcohol, Tobacco, Firearms, and Explosives (firearms, ammunition, explosives)
Food and Drug Administration (medical devices, pharmaceuticals)
Export Administration Regulations (EAR)
The EAR is administered by the U.S. Department of Commerce, Bureau of Industry and Security (BIS), and covers “dual use” items that may have both military and significant civilian uses. Items whose export is controlled under the EAR are identified in the Commerce Control List (CCL), which is organized into ten broad categories: nuclear materials, facilities and equipment; materials, chemicals, microorganisms and toxins; materials processing; electronics; computers; telecommunications and information security; sensors and lasers; navigation and avionics; marine; and aerospace and propulsion. Each category includes a lengthy list of items broken into product groups: systems, equipment, and components; test, inspection and production equipment; materials; software; and technology.
If an item is on the CCL, a license may be required for export of the item out of the United States. Depending on the item and the reason the item is on the CCL, a license may be needed to export to only a few countries or to many countries. Even if a license might normally be required, it may not be needed in a particular circumstance if one of several exclusions or license exceptions is applicable to the export.
Within the United States, the EAR requires a license only when technology or source code for an item on the CCL is transferred to a foreign person. Technology is defined in the EAR as information in the form of technical data or assistance necessary for the development, production, or use of an item on the CCL. Again, a license may not be needed if one of several exclusions or license exceptions is applicable.
BIS also implements United States government sanctions against the Crimean region of Ukraine, Cuba, Iran, Iraq, North Korea, Sudan and Syria. The scope of the sanctions, license requirements, and license exceptions vary depending upon the particular sanctioned destination. Other embargoes and sanctions are administered by the Directorate of Defense Trade Controls of the U.S. Department of State and the Office of Foreign Assets Control of the U.S. Department of Treasury. BIS also prohibits exports when it is known, or there is reason to know, that an export-controlled item will be used in nuclear activities or technology, rocket systems and unmanned air vehicles, or chemical or biological weapons.
The penalty for violating the EAR can include a civil fine for up to the greater of $250,000 or two times the value of the transaction in which the violation occurred. Criminal penalties may also be imposed, including fines up to $1,000,000 and imprisonment for up to twenty years.
International Traffic in Arms Regulations (ITAR)
The Directorate of Defense Trade Controls (DDTC) of the U.S. Department of State regulates items with primary specific military uses/purposes as well as non-military spacecraft systems including satellites. These items, which are called “defense articles”, appear on the U.S. Munitions List (USML). The DDTC also regulates “technical data” (information “required for the design, development production, manufacture, assembly, operation, repair, testing, maintenance, or modification of defense articles”) and “defense services” (assistance and training in the “design, development, engineering, manufacture, production, assembly, testing, repair, maintenance, modification, operation, demilitarization, destruction, processing, or use of defense articles”).
A license is required for export of defense articles, technical data and defense services to any country outside the United States. Within the United States, the ITAR requires a license when technical data is transferred, and defense services are provided, to a foreign person. A license to transfer a defense article in the United States is required only when a defense article is transferred to an embassy, agency, or subdivision of a foreign government. A license may not be needed if one of several exclusions or license exceptions is applicable.
The DDTC maintains its own list of prohibited countries for which it will deny licenses and other approvals for exports and imports of defense articles and defense services destined for, or originating in, certain countries with some very limited exceptions. The prohibited countries include: Afghanistan, Belarus, Central African Republic, China, Cuba, Cyprus, Democratic Republic of the Congo (formerly Zaire), Eritrea, Haiti, Iran, Iraq, Kyrgyzstan, Lebanon, Libya, Myanmar (formerly Burma), North Korea, Russia, Somalia, Sudan, Syria, Venezuela and Zimbabwe.
The penalty for violating the ITAR can include a civil fine for up to the greater of $500,000 or five times the value of the transaction in which the violation occurred. Criminal penalties may also be imposed, including fines up to $1,000,000 and imprisonment for up to ten years.
Office of Foreign Assets Control (OFAC)
The Office of Foreign Assets Control (OFAC) of the U.S. Department of Treasury administers and enforces economic sanctions programs primarily against countries and groups of individuals. The sanctions can be either comprehensive or selective, using the blocking of assets and trade restrictions to accomplish foreign policy and national security goals. The sanctions and embargoes change over time both with respect to countries impacted and the scope of the specific sanctions. Sanctions range from broad prohibitions against financial transactions, trade, and travel to targeted sanctions against individuals and private entities associated with specific events, geographic regions, or specific forms of commerce or trade. To engage in activities in a country subject to sanctions requires a license from OFAC. The OFAC Sanctioned Countries List includes the Balkans, Belarus, Burundi, Central African Republic, Cuba, Democratic Republic of the Congo, Iran, Iraq, Lebanon, Libya, Myanmar (formerly Burma), North Korea, Somalia, Sudan, South Sudan, Syria, Ukraine/Russia, Venezuela, Yemen and Zimbabwe.
As part of its enforcement efforts, OFAC also publishes a list of individuals and companies owned or controlled by, or acting for or on behalf of, targeted countries. It also lists individuals, groups, and entities, such as terrorists and narcotics traffickers, designated under programs that are not country-specific. Collectively, such individuals and companies are called “Specially Designated Nationals” or “SDNs.” Their assets are blocked and U.S. persons are generally prohibited from dealing with them. The Consolidated Screening List contains the names of the Specially Designated Nationals as well as other individuals and entities on restricted lists maintained by the Departments of Commerce, State, and the Treasury.
The penalties for violating the OFAC sanctions are the same as those imposed for violations of the EAR.
Exclusions and Exceptions from Export Control Laws
Fortunately for universities, export control regulations are crafted in such a manner that common university activities are often excluded from the requirements for licenses. However, these exclusions apply only to technology and software (EAR) and technical data (ITAR). The exclusions do not apply to other items or to OFAC country sanctions or activities with individuals or entities on the Consolidated Screening List.
Fundamental Research Exclusion:
EAR excludes from its coverage technology and non-encryption software that arise or result from fundamental research. ITAR excludes from its definition of “technical data” information that is available through fundamental research. Fundamental research is “basic and applied research in science and engineering where the resulting information is ordinarily published and shared broadly within the scientific community, as distinguished from research the results of which are restricted for proprietary reasons or specific U.S. Government access and dissemination controls.”
The fundamental research exclusion is destroyed if ISU accepts any contract clause that
- Forbids the participation of foreign persons;
- Gives the sponsor a right to approve publications resulting from the research (short-term delays on publications for the purposes of review to remove proprietary information or for filing of patent protection are permitted); or
- Otherwise operates to restrict participation in research and/or access to, and disclosure of, research results.
Under ITAR, the fundamental research exclusion applies only if the research occurs at an accredited institution of higher learning in the United States.
Public Domain/Publicly Available Exclusion:
EAR: EAR excludes from its coverage publicly available technology and non-encryption software, such as information that is published in a book or any other print, electronic, or other media available for public distribution, available at a university or public library, released at an open conference anywhere, the subject of patent or open patent application, on a website accessible by the public, or information that will be published. This includes submission of manuscripts to journals for consideration with the understanding that the article will be published if favorably received.
ITAR: ITAR excludes from its definition of “technical data”information in the public domain, which is information already published and generally accessible or available to the public through sales at newsstands and bookstores, subscriptions, libraries open to the public, patents, open conferences in the United States, or other public release authorized by the United States government.
Educational Instruction Exclusion:
EAR: Information that is released during instruction of catalog courses and associated teaching laboratories of academic institutions is not subject to the EAR.
ITAR: ITAR excludes from its definition of “technical data” information concerning general scientific, mathematical, or engineering principles commonly taught in schools, colleges, and universities.
Bona Fide/Full-time Employee Exemption:
An exemption to the ITAR exists if all of the following conditions are met:
- Disclosure of technical data;
- In the United States;
- By a U.S. institution of higher learning to its bona fide and full-time regular employee, whose permanent abode during the period of employment is in the United States;
- The employee is not a national of an embargoed country; and
- The university informs the employee in writing that the technical data may not be transferred to other foreign persons without approval.
Due to the requirement that the employee be full-time with a permanent abode in the United States, this exemption would not be applicable to foreign students (including graduate students) on F-1 visas and post-docs on J-1 visas.
In addition to the exclusions above, EAR and ITAR have a number of license exceptions. These exceptions are case-specific and require the retention of certain documentation. Please contact the Office of Research Integrity to determine if the above exclusions or any license exceptions apply to export-controlled items you intend to transfer to a foreign person or country and to obtain any needed documentation.
Compliance with Export Controls at ISU
ISU is a university that strives for diversity in its community and welcomes foreign persons to its campus. Moreover, ISU encourages its faculty, staff, and students to “develop global partnerships to convert what they know into products, services, and information that will improve the quality of life for the citizens of Iowa, the nation, and the world.” ISU community members need to be cognizant of steps they can take to comply with export controls while striving to achieve these worthy goals.
Foreign Persons at ISU
U.S. Citizenship and Immigration Services requires an employer who seeks to sponsor a potential employee for certain visas (H1-B, H1-B1, L-1, O-1A) to certify that it has reviewed the EAR and ITAR to determine whether or not a license is required with respect to the technology or technical data to which the potential employee will have access. In order to make this certification, ISU asks departments seeking to hire such individuals to complete an Export Control Worksheet. The information in the Export Control Worksheet enables the Office of Research Integrity to determine whether the potential employee will have access to export-controlled items and whether an exclusion applies such that a license would be unnecessary. ISU also utilizes the Export Control Worksheet in connection with J-1 Exchange Visitor applications and other international visitors to ISU other than ISU students.
Acquisition and Management of Export-controlled Items
Procurement Services, OSPA and OIPTT request vendors, sponsors, collaborators, and others to notify ISU if items they will be providing ISU are export-controlled. If an item is export-controlled, the ISU unit obtaining the item and ORE are informed and a Technology Control Plan (TCP) is put in place to avoid improper export.
ORE and the ISU unit will address in the TCP how the export-controlled items will be secured. This includes securing specifications, operation manuals, and other technical data for export-controlled items and limiting who is responsible for repair and maintenance of export-controlled items in order to avoid a deemed export. Items subject to export controls may also be physically marked and tagged through inventory so that the items can be checked to see if export control restrictions still apply upon disposition. The ISU unit will also list in the TCP those who will have access to the export-controlled item so that ORE can determine whether licenses are necessary.
Consideration should be given, whenever possible, to acquiring items that are not subject to export controls.
Research and Collaborative Activities
If export controls apply to your research project or collaborative activity, obtaining a license from the federal government may take several months. While OSPA, ORE and others analyze grant awards and contracts for indicators that a project or activity involves export-controlled items, there are early measures that a researcher can take to try to avoid such delays or surprises. The most important of these is notifying ORE as soon as any potential export control issues arise. Others include the following:
When responding to a request for proposal, scan the request for terms and conditions which may indicate the research will not fall into the fundamental research exclusion, such as limitations on publication beyond a short-term delay for the purposes of review to remove proprietary information or for filing of patent protection; or limitations on foreign persons being allowed to work on the project.
If provisions such as these exist, contact OSPA immediately because submission of a proposal under a request for proposal generally means an agreement to comply with the terms and conditions in the request for proposal. OSPA and ORE will work with the researcher to determine whether ISU can comply with the limitations, including whether export licenses will be needed for staff and subcontractors working on the project.
Obtaining a license for research and collaborative activities with entities and individuals in countries subject to economic sanctions is especially difficult. Prior to engaging in discussions with entities and individuals in other countries about potential research and collaborative activities, review the lists of sanctioned countries above and the Consolidated Screening List or contact ORE to conduct the review. Doing so may avoid time and effort being spent on discussions and negotiations with the entities or individuals that will likely be futile.
Confidentiality agreements and material transfer agreements which include publication restrictions-and which remain effective after signing a sponsored research agreement-effectively remove the research from the fundamental research exclusion. Notify OSPA of such arrangements.
Shipping Export-Controlled Items
The simple act of sending a package to a foreign collaborator can result in a violation of export controls as well as other regulations. If sending an export-controlled item overseas, work with ORE to see whether an item is export-controlled, whether the individual, entity, or country to which the items are being sent is sanctioned, and whether an export control license or other permit is necessary. One way to do so is by ensuring a Material Transfer Agreement (MTA) is in place through the Office of Sponsored Programs Administration prior to sending the item. Requests for MTAs are placed electronically, using the Material Transfer Agreement Questionnaire Form. Please note that even if an item is not export-controlled under the EAR or ITAR, other restrictions under other laws and regulations may apply and Environmental Health & Safety should be consulted about them.
When they travel, ISU employees often take electronic devices (e.g., laptop computers, cell phones, PDAs, GPS), equipment, materials, and data. However, taking such items out of the United States can constitute an export that requires an export license. In addition, laptops can often be lost or stolen, and customs officials here and abroad may inspect and seize belongings. Accordingly, ISU employees should not travel with anything they do not need. This includes information stored in laptops and other devices, in particular, confidential information such as student and personnel records and export-controlled technology, software, and technical data. ISU employees should either remove such items from the device or investigate whether their department has a clean laptop or other devices for travel. Please review the International Travel and Information Technology document and International Travel with Laptops and Other Electronic Devices for best practices guidance and information on foreign restrictions on imported encrypted devices. A comprehensive set of International Travel Guidelines is also available.
For those items an employee elects to take, please consult ORE to ensure the item is not covered by export control laws, to determine whether any export limitation on the export-controlled item applies to the country of destination, and, if so, to secure export licenses in time for travel. The International Travel Checklist addresses traveling with export-controlled items and other travel issues, such as State Department travel warnings and alerts and travel restrictions.
Office of Research Ethics
Within the Office of Research Ethics (ORE) is ISU’s Export Control Coordinator. The Export Control Coordinator is responsible for reviewing projects and activities for export control issues, responding to questions, maintaining required records, and overseeing ISU’s Export Control Compliance Program.
ISU’s Reporting Responsibility – Violations policy and Non-Retaliation Against Persons Reporting Misconduct policy are applicable to reports of suspected violations of export control laws.
Barbara Biederman, Iowa State University Associate Counsel, 294-0147
General information, export licenses, sponsored research, acquisition and management of export controlled equipment, shipping, communication of technical information, transactions with embargoed nations and persons