Regulations

Export Administration Regulations (EAR): These are the Commerce Department’s “dual-use” controls under Title 15 CFR 700-799 governing hardware, materials, equipment, software, technology and technical data that Commerce defines as “dual use” (i.e., having civilian and inherent defense or nuclear application). Commerce places destination (country) and end-use/user-based controls by requiring prior authorization (a license) prior to export. Not all items on the Commerce Control List (CCL) are controlled for all countries. The specific type of control such as “National Security,” “Nuclear Proliferation,” “Missile Technology” or “Biological/Chemical” (among other types of controls), which Commerce determines based on an item’s specifications and capabilities, determines what types of items are controlled for particular countries. For example, an item that may not require an export license to send to France or share with a French foreign national in the U.S. may require an export license to send to Singapore or to a Singaporean studying or working in the U.S.

• With respect to dual-use controlled technology, this does not include technology or data which is already in the public domain or, as the pending result of fundamental research, is intended for publication (or could be published) so as to reside in the public domain. Rather, controlled technology typically encompasses “use”, “development”, or “production” technology associated with dual-use export controlled equipment and software that is not intended for or restricted from publication.
• With respect to “use” technology and, in order for a deemed export to occur, six activities must occur through which a foreign national gains an understanding of the design of the item which renders it controlled. These activities include: operation, installation, maintenance, repair, overhaul, and refurbishment. While technically, the definition requires all six activities to have occurred, in reality, a controlled transfer can occur through a combination of two or more of these activities (but not necessarily all six) where controlled design/engineering information is transferred.
• With respect to “development” technology, a deemed export can occur where any one aspect of the definition of “development” involves a foreign national whose country is controlled for the development of that particular item. Development is related to all stages prior to serial production, such as: design, design research, design analysis, design concepts, assembly and testing of prototypes, pilot production schemes, design data, process of transforming design data into a product, configuration design, integration design, and layouts. “Production” technology is typically associated with the technology to manufacture or assemble an item, including but not limited to prototype production, testing, and quality assurance. Finally, the fact that TAMU-CC can purchase a dual-use item commercially for research purposes, does not mean that the item is not export controlled. If the item meets the technical definition of an EAR dual-use controlled item, TAMU-CC assumes the compliance responsibility for complying with applicable foreign national use restrictions, as well as license requirements for (or prohibitions against) transferring such items internationally.

International Traffic in Arms Regulations (ITAR): These are the State Department’s defense-based controls under Title 22 CFR 120-129 governing defense articles and activities. Defense articles are defined generally as hardware, materials, equipment, software, technology and technical data specifically designed or modified for defense or military application, without a civil performance or use equivalent. These items are referenced in the ITAR's United States Munitions List (USML). The ITAR governs many types of commercially available, “best in class” items originally designed according to military specifications that are commonly used in research activities, including but not limited to the Engineering, Biological, Information, and Space sciences. Examples include certain low light, infrared cameras, Class IV lasers, or radiation hardened, and space-qualified devices that are used in research. Unlike the EAR’s dual-use universe, exports of ITAR items are subject to licensing regardless of destination or end user/use, unless a specific license exception is met. In other words, all destinations potentially require licenses. And further, unlike the EAR, certain countries such as China and its foreign nationals, are per se prohibited countries under ITAR: no licenses will be issued.

• For deemed export purposes, under the ITAR regulations, access is interpreted as visual access or potential cyber access. Access alone is considered sufficient to trigger the “release” of ITAR technical data, regardless of actual intention or need to use the ITAR item itself. Hence, in an otherwise “open laboratory” environment where research is conducted under the FRE, the presence of an ITAR instrument presents logistical challenges toward conducting fundamental research. Even if an ITAR instrument is a necessary tool to advance fundamental research, TAMU-CC would have to implement a Technology Control Plan (TCP) for that instrument to secure it from unauthorized access. Similarly, ITAR-controlled data must be strictly segregated from other non-ITAR data, given the minimal foreign national access threshold that triggers a release of ITAR technical data.
• As with dual-use items, the fact that we are able to purchase an ITAR item in the U.S. through a commercial instrument supplier does not mean that it is not controlled. If the item meets the technical definition of an ITAR item, TAMU-CC assumes the compliance responsibility for complying with foreign national access and use restrictions, as well as license requirements for (or prohibitions against) transferring such items internationally. Hence, understanding when we are procuring ITAR research tools is an important part of our compliance program. In addition, the ITAR also regulates a category of activities defined as “defense services.” Essentially these are activities which either involve disclosing ITAR technical data to foreign nationals (or data related to a defense article) even in the pursuit of fundamental research; or disclosing any technical data (whether or not controlled) to a foreign national or defense entity or organization for a defense purpose. Activity that meets either of these “defense service” definitions likewise triggers a licensing requirement or must otherwise satisfy a license exemption.

Office of Foreign Assets Controls Regulations (OFAC): These are the Treasury Department’s economic embargo controls under Title 31 CFR 500-598 governing which types of transactions are restricted with certain countries that OFAC defines as “terrorist-sponsoring” nations. Exports constitute only one of many types of restricted transactions which OFAC defines as providing a restricted “service.” While OFAC maintains economic embargoes with numerous countries, entities and individuals, the broadest embargoes impact exports to Cuba, Iran, Syria, and Sudan. Transactions with these countries (including, potentially, activities normally considered part of international research collaboration) may require an OFAC license.

Nuclear Regulatory Commission Regulations (NRC): These regulations govern exports (as well as transfer within the U.S.) of certain nuclear equipment, technology, and materials based on agency license approval.

United States Department of Agriculture Regulations (USDA): These regulations govern exports (as well as transfer within the U.S.) of certain biological materials, including (with respect to Biosafety Level 3 and 4 research) access and use of certain materials by foreign nationals. In some cases, USDA jointly controls restricted materials and research with the Commerce Department’s (EAR) dual-use regulations.