The Export Administration Regulations – EAR
The Bureau of Industry & Security (BIS), US Department of Commerce, administers the Export Administration Regulations (15 CFR §§730-774), or “EAR,” which regulate the export of “dual-use” items. These items include goods and related technology, including technical data and technical assistance, which are designed for commercial purposes, but which could have military applications (hence the name “dual-use”). Examples are computing devices, lasers, infectious agents, computers, encryption technology, sensors, navigation and avionics, propulsion systems, toxins, chemicals and telecommunications equipment.
The list of EAR-controlled items (the Commerce Control list, or “CCL”) is published at 15 CFR §774, Supplement 1. A list of CCL items is accessible at the Commerce Control List (CCL).
EAR Technical Data may take forms such as 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, and read-only memories. EAR Technical Assistance may take forms such as instruction, skills training, working knowledge, and consulting services.
The CCL categorizes EAR covered items into 10 broad categories:
- Nuclear Materials, Facilities and Equipment, and Miscellaneous
- Materials, Chemicals, Microorganisms, and Toxins
- Materials Processing
- Telecommunications and Information Security
- Lasers and Sensors
- Navigation and Avionics
- Propulsion Systems, Space Vehicles, and Related Equipment
Each category contains five product groups:
A: Equipment, Assemblies and Components
B: Test, Inspection and Production Equipment
Within each category, individual items are identified by the ECCN. “ECCN” stands for Export Control Classification Number and is an alpha-numeric code used to categorize items that are subject to the EAR into one of the ten categories and five product groups within the Commerce Control List (CCL). A key in determining whether an export license is needed from the Department of Commerce is finding out if the item you intend to export has a specific ECCN. An ECCN categorizes items based on the nature of the product, i.e. type of commodity, software, or technology and its respective technical parameters. Once it is established that an item is EAR controlled, the exporter needs to determine the ECCN. An example would be the ECCN for a microwave integrated circuit. This would be Category 3 Electronics and Product Group A for Systems, Equipment and Components. The applicable ECCN is 3A001.
For goods and technology listed on the CCL, a license may be required for export, depending on the destination country, receiving party, and end use, unless an exclusion or exemption applies. Where embargoed countries are involved (see the section on OFAC Sanctions Programs), a license will be denied. The regulations include an additional “catch-all” category, the EAR99, which covers any good or technology that is subject to the EAR as defined in 15 CFR §734.3(a), but that is not on the CCL. Items in the EAR99 category do not require a license for “list-based” controls, but may require a license based on embargoes, sanctions, receiving party or end use.
Under the EAR, an Export means:
- An actual shipment or transmission out of the United States, including the sending or taking of an item out of the United States, in any manner;
- Releasing or otherwise transferring “technology” or source code (but not object code) to a foreign person in the United States (a “deemed export”). Note that any release in the United States of “technology” or source code to a foreign person is a deemed export to the foreign person’s most recent country of citizenship or permanent residency.
International Traffic in Arms Regulations - ITAR
The U.S. Department of State through the Directorate of Defense Trade Controls (DDTC) administers the International Traffic in Arms Regulations (22 CFR §§120-130), or “ITAR,” which regulate items and information inherently military in design, purpose, or use. Referred to as “defense articles,” such items are found on the U.S. Munitions List (USML), including technical data recorded or stored in any physical form, models, mockups, or other items that reveal technical data directly relating to items designated in the USML. Basic marketing information on function or purpose, or general system descriptions, are not controlled technical data.
The ITAR further defines Defense Services, which include the furnishing of assistance (including training) to non-US persons, whether in the United States, with respect to defense articles, as well as the furnishing of any technical data associated with a defense article.
In 1999, spacecraft and satellites, even if not for military use, were transferred to ITAR control, along with their associated systems and related equipment. In November 2014, some satellites, spacecraft, and their components were returned to EAR control, although with more robust control than traditional EAR items.
The USML is divided into 22 categories of items and defense articles as listed below.
United States Munitions List Categories
|I||Firearms, Close Assault Weapons, and Combat Shotguns|
|II||Guns and Armament|
|IV||Launch Vehicles, Guided Missiles, Ballistic Missiles, Rockets, Torpedoes, Bombs, and Mines|
|V||Explosives and Energetic Materials, Propellants, Incendiary Agents, and Their Constituents|
|VI||Vessels of War and Special Naval Equipment|
|VII||Tanks and Military Vehicles|
|VIII||Aircraft and Associated Equipment|
|IX||Military Training Equipment and Training|
|X||Protective Personnel Equipment and Shelters|
|XII||Fire Control, Range Finder, Optical and Guidance and Control Equipment|
|XIII||Auxiliary Military Equipment|
|XIV||Toxicological Agents, Including Chemical Agents, Biological Agents, and Associated Equipment|
|XV||Spacecraft Systems and Associated Equipment|
|XVI||Nuclear Weapons, Design and Testing Related Items|
|XVII||Classified Articles, Technical Data, and Defense Services Not Otherwise Enumerated|
|XVIII||Directed Energy Weapons|
|XX||Submersible Vessels, Oceanographic and Associated Equipment|
Unless a specific exclusion or exemption applies, licenses are required for the export of a USML-listed item.
Office of Foreign Assets Control - OFAC
The United States maintains sanctions and embargoes on certain countries; some of these sanctions can affect international research collaborations. The sanctions are subject to change (even frequent or sudden). Sanctions range from narrow restrictions prompted by a particularized foreign-policy consideration to very broad, long-standing sanction programs and embargoes, such as those involving Cuba and Iran. Sanctions invariably include a financial component; accordingly, the U.S. sanctions regime is under the jurisdiction of the U.S. Treasury Department’s Office of Foreign Assets Controls (OFAC). Generally, it is advisable for Yale researchers and/or their staff to check the OFAC web site to confirm whether an activity involving a foreign collaboration might be subject to OFAC restrictions.
The Department of the Treasury’s Office of Foreign Assets Controls (OFAC) administers economic sanctions programs regarding a number of countries, using asset blocking and trade restrictions to accomplish US foreign policy and national security goals. The current list of sanctions programs:
- Central African Republic
- Democratic Republic of the Congo
- North Korea
- Sudan / Darfur
- South Sudan-related
- Ukraine-Crimea (Russian related)
Some of these programs severely restrict transactions — for instance, the transfer of anything of value, other than small gifts or humanitarian aid, with Iran or anyone in Iran is prohibited, although transactions with citizens of Iran who are not members of the Iran government when they are outside Iran are permitted. Other programs are less likely to restrict activities of the Yale community. Each sanctions program has an Overview of Sanctions document, and some have further clarification in additional documents such as guidelines.
Please note that Yale is most concerned with any proposed transaction / interaction with Cuba, Iran, N. Korea, Syria, or Ukraine-Crimea (Russian related). If you are contemplating any such transaction / interaction, please contact the Office of Export Controls at firstname.lastname@example.org.
OFAC also maintains the Specially Designated Nationals and Blocked Persons List (the SDN list) of individuals and companies owned or controlled by, or acting for or on behalf of, targeted countries, as well as individuals, groups, and entities, such as terrorists and narcotics traffickers designated under programs that are not country-specific. Their assets are blocked and U.S. persons are generally prohibited from dealing with them.
OFAC’s SDN search tool simplifies checking this, but the government maintains a total of 35 lists with various restrictions.
OFAC also maintains lists of individuals and organizations that are known to support of terrorism (the “Specially Designated Nationals” list, or “SDN”). Financial dealings or providing services with these individuals/entities or providing support or services to them is barred. As a best practice, Yale faculty and staff researchers should know the foreign entities and individuals with whom they are interacting.