Licensing and Exclusions

An export license may be required before controlled items, materials, or information may be exported. There is usually a lengthy processing time period (a minimum of 2-3 months) and some applications may be denied or contain restrictive conditions. The good news is that the vast majority of exports at UTC are made without a license!

License requirements are dependent upon four criteria:

• An item's technical characteristics,
• Destination,
• End use, and
• End user

“Exports” are defined not only as a physical transfer/disclosure of an item outside the US, 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 national (not a U.S. citizen or permanent resident). This is called the “deemed export” rule. As a result, unless an exclusion or exception is available, the university may be required to obtain an export license before allowing the participation of foreign national faculty, staff, or students in affected research. In some cases, a license may not be available at all based on the country involved.

The following are examples of situations where a license may be required:

• Presentation/discussion of previously unpublished research at conferences and meetings where foreign national scholars may be in attendance
• Research collaborations with foreign nationals and technical exchange programs
• Transfers of research equipment abroad
• Visits to your lab by foreign scholars
• Determining who may participate in the research project

When determining whether or not your export requires a license, you will need to work with ORI to consider the following:

1. Are you wanting to export to a controlled country/restricted party?
2. Does your export qualify for an exclusion?
3. If not, what is the item's classification, is there a license exception, and is there an end use/user control?

Controlled Countries/Restricted Parties

Exports to countries under OFAC Sanctions are strictly controlled. Currently, OFAC administers active sanctions programs in: Afghanistan, Balkans, Belarus, Burma, Central African Republic, China, Cuba, Democratic Republic of the Congo, Ethiopia, Hong Kong, Iran, Iraq, Lebanon, Libya, Mali, Nicaragua, North Korea, Russia, Somalia, Sudan and Darfur, South Sudan, Syria, Crimea region of Ukraine, Venezuela, Yemen, and Zimbabwe.

Additionally, EAR imposes strict export controls on Cuba, Iran, and Syria.

Additional restrictions on prohibited end users are published by the Commerce Department, State Department, and Treasury Department.  The United Nations, the European Union and several other countries publish lists of people and organization with whom trading is disallowed.

These lists are subject to frequent and sudden change.

ORI will work with you to ensure that comprehensive restricted party screening is undertaken during your Export Control review.

Exclusions

Fundamental Research Exclusion (FRE)

The term Fundamental Research means basic and applied research in science and engineering, the results of which ordinarily are published and shared broadly within the scientific community, as distinguished from proprietary research and from industrial development, design, production, and product utilization, the results of which ordinarily are restricted for proprietary or national security reasons.

The Fundamental Research Exclusion applies only to the dissemination of research data and information, not to the transmission of material goods.

The Fundamental Research Exclusion is not applicable if the university accepts any contract clause that:

Forbids the participation of foreign persons

Gives the sponsor a right to approve publications resulting from the research; or

“Side deals” between a PI and Sponsor to comply with such requirements even though not stated in the research contract may destroy the fundamental research exclusion and expose both the PI and the Institute to penalties for export control violations and may also violate university policies on openness in research.

• Otherwise operates to restrict participation in research and/or access to and disclosure of research results.

"Published" Information Exclusion

Information is “published” (and therefore not subject to export controls) when it becomes generally accessible to the interested public in any form, including:

Publication in periodicals, books, print, electronic, or other media available for general distribution (including websites that provide free uncontrolled access) or to a community of persons interested in the subject matter, such as those in a scientific or engineering discipline, either free or at a price that does not exceed the cost of reproduction and distribution; Readily available at libraries open to the public or at university libraries;

Note, a conference or gathering is “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 of the proceedings and presentations. A conference is considered open notwithstanding a registration fee reasonably related to cost, and there may be a limit on actual attendance as long as the selection is either ‘first come’ or selection based on relevant scientific or technical competence.

• Patents and published patent applications available at any patent office; and
• Release at an open conference, meeting, seminar, trade show, or other open gathering held in the U.S. (ITAR) or anywhere (EAR).

The Education Exclusion

Whether in the U.S. or abroad, the educational exclusions in EAR and ITAR cover instruction in science, math, and engineering taught in courses listed in catalogues and associated teaching laboratories of academic institutions, even if the information concerns controlled commodities or items. Dissertation research must meet the standards for “fundamental research” to qualify as “publicly available.”

The Employment Exclusion (ITAR only)

An ITAR license is not required for colleges and universities to share information in the U.S. with a foreign person if that person:

Is a bona fide employee of the university — full time with benefits Is not a national from an ITAR embargoed country Resides at a permanent address in the U.S. while employed And, is advised in writing ;not to share covered technical data with any other foreign nationals without government approval.

Adapted with permission from The University of Tennessee - Knoxville