Export Administration Regulations
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. View a list of CCL items.
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:
- Category 0 Nuclear Materials, Facilities & Equipment and Miscellaneous
- Category 1 Materials, Chemicals, Microorganisms, and Toxins
- Category 2 Materials Processing
- Category 3 Electronics
- Category 4 Computers
- Category 5 Telecommunications and Information Security
- Category 6 Lasers and Sensors
- Category 7 Navigation and Avionics
- Category 8 Marine
- Category 9 Propulsion Systems, Space Vehicles and Related Equipment
Each category contains five product groups:
- A: Equipment, Assemblies and Components
- B: Test, Inspection and Production Equipment
- C: Materials
- D: Software
- E: Technology
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:
(1) 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;
(2) 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
International Traffic in Arms Regulations (ITAR) International Traffic in Arms Regulations (ITAR) administered by the Office of Defense Trade Controls of the U.S. Department of State controls the export of “defense articles” and “defense services”. “Defense articles” include any item or technical data on the United States Munitions List (USML), and “defense services” include the furnishing of assistance to foreign persons, whether or not in the United States, with respect to defense articles, and the furnishing of any technical data associated with a defense article.
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 considerations 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.
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.