Export controls and trade sanctions policy
(TTU Policy 760) (Updated 11/15/2017)
Federal laws restricting exports of goods, services, information, or technology are enforced by various federal agencies including the U.S. Department of Commerce through its Export Administration Regulations (EAR)--("dual use items"), the U.S. Department of State through its International Traffic in Arms Regulations (ITAR)--("inherently military items"), and the U.S. Department of the Treasury through the Office of Foreign Assets Controls, OFAC (trade embargos).
These laws restrict exports of goods and technology that could contribute to the military potential of U.S. international adversaries; to prevent the proliferation of weapons of mass destruction; to advance U.S. foreign policy goals; and to protect the U.S. economy and promote trade goals.
Export controls present unique challenges to universities and colleges because they require balancing concerns about national security and U.S. economic vitality with individual concepts of unrestricted academic freedom, publication and dissemination of research findings and results. University researchers and administrators need to be aware that these laws apply to research, whether sponsored or not.
It is the policy of Tennessee Technological University to pursue its mission in teaching, research, and service in a manner consistent with the applicable export control regulations. To implement this policy, the Principal Investigator (PI) and Office of Research and Economic Development (ORED) must conduct a thorough review of research projects, contract and grant provisions to determine what, if any, export control laws apply. The review will proceed as follows:
1. The PI will review the terms of the research project, contract or grant for provisions that restrict access to or publication of research and technical data that limit the participation for foreign nationals in the research effort, or otherwise render exemptions from export control regulations inapplicable. The results of such review will be indicated on a checklist designed to facilitate such review, signed and date by the PI.
2. If the results of such a review indicate that an exemption from export control regulations may not be available, the PI will forward the checklist and supporting documentation to ORGS. ORGS will confirm the review of the PI, and if the research project, contract, or grant contains terms and conditions that impact the University's exemption from export control regulations, the matter will be referred to the Associate Vice President for Research and Economic Development.
3. The AVPRGS will meet with the PI for the research project, contract or grant, and together they will determine if the research falls into one of the categories of technology designated by the appropriate Federal Agency. The results of that determination will be documented by the PI and the AVPRGS.
4. If the research project, contract, or grant galls under the terms of the export control regulations, AVPRGS will contact the sponsor to attempt to negotiate the removal or modification of the provisions in the contract of grant that impact the University's exemption from export control regulations. If such negotiation does not result in removal or modification of the identified terms, the matter will be referred to the TBR General Counsel to determine whether TTU will apply for an export control license, conduct the research under the export control restrictions, or abandon the research effort due to possible burdens or restrictions associated with compliance regulations.
5. If the AVPRGS determines an export control license is required, TBR Legal Counsel will proceed to make application for the appropriate license. No work under a contract or grant whether sponsored or not can commence until this process has been completed and the required export control license has been issued.
6. Under TTU policy, foreign faculty, students, staff, and scholars will not be singled out for restrictions in their access to TTU's educational and research activities, and TTU will not agree to restrictions on publication of research results. TTU will not restrict publication or access/dissemination (such as approval requirements for participation by foreign nationals) in research awards. TTU will allow a short period (generally 30-60 days) for sponsor review (but not approval) of proposed publications to remove inadvertently included proprietary information provided by the sponsor or to seek patent protection. Not following this policy will impede the fundamental research, publicly available, and public domain exclusions/protections provided by the government. Without these protections, EAR or ITAR will apply to information (technology or technical data) concerning controlled Materials or Items. Unless a license exception applies, a "deemed export" license will then be required before the information is conveyed (even visually through observation) to foreign students, researchers, staff or visitors on campus and an actual export license will then be required before the information is conveyed abroad to anyone.
NOTE: Some information from this page has been archived. Please contact the webmaster for archived information.
QUICK GUIDE TO EXPORT CONTROLS
- Read and understand TTU Policy on Export Control (see also below).
- Read the presentation titled, Introduction To Export Controls.
- Take the CITI online training on Export controls (specifically, see Step 7, Question 3).
- Send or hand-carry the quiz to Derryberry Hall, Room 306, and give to the Export Controls Officer. The completed quiz is prima facie evidence of knowledge and completion of the training program.
- Fill out and give a copy of the Export Control Review Sheet to the Export Controls Officer.
- Complete an Export Controls Plan, if needed.
- Read and be familiar with the TTU International Travel Policy.
EXPORT CONTROL Laws
Export control laws, federal laws implemented by the Department of the Treasury (31 CFR, Chapter 5) through the Office of Foreign Asset Controls, Department of Commerce through its Export Administration Regulations (EAR) and the Department of State through its International Traffic in Arms Regulations (ITAR), have been in existence for more than 20 years. They are the law of the land. As such, institutions of higher education and their employees are required to comply with these laws and regulations. Criminal sanctions (including money and/or prison sentences for individuals) can apply in the case of violations.
Following the events of September 11, 2001, the export control regulations have become more prominent and scrutiny concerning the level of compliance with these regulations has heightened. It is important that faculty and other researchers in TTU departments, laboratories, and Centers understand their obligations under these regulations and adhere to them.
The regulations cover virtually all fields of science and engineering. However, they prohibit the unlicensed export of only certain materials or information for reasons of national security or protection of trade. In the case of academic or research institutions, there is an exclusion for fundamental research, the results of which are, or are about to be or, publicly available. Understanding three basic concepts related to export controls is essential: (1) the nature of the technology that is export controlled and how it is recognized, (2) the fundamental research exclusion, and (3) what is a deemed export. A few items deserve special emphasis:
- A vast majority of exports do not require government licenses. Only exports that the U.S. government considers "license controlled" under the EAR and ITAR require licenses (note that some controlled exports don't require a license). Export controlled transfers usually arise for one or more of the following reasons:
1. The nature of the export has actual or potential military applications or economic protection issues
2. Government concerns about the destination country, organization, or individual, and
3. Government concerns about the declared or suspected end use or the end user of the export
- Even if an item appears on one of the lists of controlled technologies, generally there is an exclusion for fundamental research (as long as there are no restrictions on publication of the research or other restrictions on dissemination of the information) or, in some cases, as long as the research or information is made public or is intended to be made public.
- When an item is controlled, a license may be required before the technology can be exported. This requirement relates not only to tangible items (prototypes or software) but also to the research results themselves. Further, the term "export" can mean not only technology leaving the shores of the United States (including transfer to a U.S. citizen abroad whether or not it is pursuant to a research agreement with the U.S. government), but also transmitting the technology to an individual other than a U.S. citizen or permanent resident within the United States. Even a disclosure to a foreign researcher or student in a TTU laboratory is considered a "deemed export."
- There are certain countries where it is the policy of the United States generally to deny licenses for the transfer of these items. These countries are currently Afghanistan, Armenia, Azerbaijan, Belarus, Cuba, Iran, Iraq, Libya, North Korea, Sudan, Syria, Tajikistan, and Vietnam.
Clearly, most of the research activities in which TTU is involved are excluded from export controls because TTU can assert the fundamental research exclusion. However, when this is not the case (such as when one needs to export a tangible research item, such as a prototype or software) it is critically important to begin the process of seeking a license from either the Department of Commerce or State (as applicable) early, since it can take as long as six months to receive a license after the submission of the license application.
*See 15 CFR 774, Supplement 1 (EAR) and 22 CFR 121.1 (ITAR).
United States Export Control Laws
Current export law controls both hardware and information concerning a wide range of technologies in a way that may have a substantial impact on research at TTU. Federal regulations control the conditions under which certain information, technologies, and commodities can be transmitted overseas to anyone, including U.S. citizens, or to a foreign national on U.S. soil. Please see the Definitions tab for further clarification on requirements.
Deemed exports: Deemed exports are transfers of controlled technology to foreign persons, usually in the U.S., where the transfer is regulated because the transfer is "deemed" to be to the country where the person is a resident or citizen. For example, transfer of infrared camera technology to a Pakistani national in the U.S. may be regulated as if the transfer of the technology was made to the Pakistani national in Pakistan. The transfer is thus "deemed" to be to Pakistan even though all activities would take place in the U.S.
The Commerce Department's Export Administration Regulations (EAR) and the State Department's International Traffic in Arms Regulations (ITAR) define "deemed exports" as (a) the transfer or disclosure (visually, electronically, or in any other medium) (b) of technologies (EAR) or technical data (ITAR), meaning information beyond general and basic marketing materials (e.g., source code or equipment installation, operation, and repair instructions), as well as consulting, instruction, training, or lectures, concerning export-controlled equipment, materials, or items ("Materials or Items"), (c) to a foreign entity or individual (d) in the U.S. (even on campus). Deemed exports do not include the mere transfer of the actual controlled Materials or Items without any associated information. (See 15 CCFR 734.2; 22 CFR 120.17 regarding "deemed exports" and see 15 CFR 772, 774; 22 CFR 120.10(5) regarding "technologies: and "technical data.") Note that the ITAR does not use the term "deemed export" as is used under the Commerce Department regulations, but the concept is the same under both the EAR and ITAR.
Although a transfer of information that is technology or technical data about controlled Materials or Items falls under the deemed export definition, a license is not always required. As explained below, if the information is "in the public domain" under ITAR or "publicly available" under EAR, or constitutes "fundamental research" under EAR and ITAR, it is not subject to EAR or ITAR at all. If the information falls under a license exception, a license is not required.
Export: The export regulations define an export as:
- Any oral, written, electronic or visual disclosure, shipment, transfer or transmission outside 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 TTU).
- Any transfer of these items or information to a foreign embassy or affiliate
It is important to emphasize that only exports for which the U.S. Government requires a license are those that are listed on the export controlled lists. The vast majority of exports do not require the prior approval of the U.S. Government.
There are three agencies that control exports:
- The Department of the Treasury through the Office of Foreign Asset Controls (31 CFR, Chapter 5).
- The Department of Commerce through its Export Administration Regulations (EAR), Title 15, sections 730-774 of the Code of Federal Regulations. For a list of controlled technologies, see 15 CFR 774, Supplement 1.
- The Department of State (which controls the export of "defense articles and defense services") under the International Traffic in Arms Regulation (ITAR), 22 CFR 120-130. For a list of controlled technologies, see 22 CFR 121.1.
A complete online version of the EAR and ITAR (including the critical technology list) is available.
Fundamental Research: Fundamental research, as used in the export control regulations, includes basic or applied research in science and/or engineering at an accredited institution of higher learning 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 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 if (1) the University or research institution accepts any restrictions on the publication of the information resulting from the research, other than limited pre-publication reviews by research sponsors to prevent inadvertent divulging of proprietary information provided to the researcher by the sponsor or to ensure that publication will not compromise patent rights of the sponsor; or (2) the research is federally funded and specific access or dissemination controls regarding the resulting information have been accepted by the University or the researcher.
Published Information: The EAR and the ITAR approach the issue of publication differently. For the EAR, the requirement is that the information has been, is about to be, or is ordinarily published. The ITAR requirement is that the information has been published.
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 who would be interested in the material 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 an 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).
Public Domain: Public domain is the term used for "information that is published and generally accessible or available to the public" through a variety of mechanisms. Publicly available software or technology is that which already is, or will be, published. To fall under this exclusion, there are a number of conditions that demonstrate public availability that are enumerated in the EAR.
Collaborative Institutional Training Initiative (CITI)
CITI Home Page: https://www.citiprogram.org/
TTU subscribes to the Collaborative Institutional Training Initiative (CITI) as means of providing training in export controls. The courses you take depend on your role in research. The following is a link to the course specifically related to export controls:
CITI Export Controls Course