1. Exporting Commodities, Technical Data or Software Abroad

A: Notify the Export Compliance Officer at least 30 to 60 days prior to your intention to export so that compliance requirements can be resolved. Export recipients must be screened against the U.S. Government’s restricted party lists. In addition, the export of an item, technical data, or software may require an export license or other governmental approval.

A: Yes. If the item requires an export license, you will need to wait until OSU receives an approved license from the appropriate government agency. Absent any screening concern and no license requirement, an export can proceed immediately.

A: Licenses are normally issued within 30 to 90 days from the date an application is submitted. Normally, though subject to exceptions, it is not difficult to obtain a license. Upon obtaining the necessary details about the export or deemed export (e.g., nature of the item, purpose/end use, destination, and end user) our Export Compliance Officer prepares and files the appropriate type of license application (dual use EAR license, defense categorized ITAR license, or OFAC license). The license application is filed through one of the on-line U.S. Government agency portals, and the Export Compliance Officer tracks the government’s approval process. Licenses are normally issued within 30 to 90 days; However, license approvals for activities with or in an embargoed country (currently Cuba, Iran, North Korea, or Syria) may take up to 6 - 9 months to obtain.

Note: that where the Government finds the proposed export to have particular national security, biological safety, or nuclear or missile technology implications, the applicable Government agency can deliberate longer over the issuance of the license, referring it for inter-agency review or requesting the College to provide specific details. Hence, it is critical to allow sufficient time prior to intended export or deemed export, for the license application to be processed.

Where the license application is intended to cover the provision of a defense service under the ITAR, this type of ITAR license is called a Technical Assistance Agreement (TAA), can take longer to prepare and longer to process.

A: No. All export licenses and authorization carry provisos or conditions which are the Government’s specific restrictions or limitations on the export activity. For example, the Government may require that the recipient of the export provide a Letter of Assurance that they will not transfer or re-export the item beyond the originally licensed country destination. Limitations on the duration of the license, or on access by foreign nationals from certain countries, may also apply. Failure to adhere to these provisos results in an enforceable export violation.

A: Not necessarily. Under the EAR, dual-use, regulations, license requirements are on an item by item, country by country or end use/user basis. As such, your particular item may or may not require a license. Under the ITAR, defense, regulations, exports to all countries presumptively require a license and, in some cases, depending on the country, the State Department will not, as a matter of policy, issue a license. For example, North Korea is per se a prohibited country under the ITAR regulations; the State Department will not consider issuing a license for a defense article or related technical data to North Korea. There are approximately 7 other countries that are likewise prohibited under the ITAR. Therefore, it is essential that all exports be cleared for export control.            

A: In some cases, yes. The answer depends on the export control jurisdiction of the item, as follows:

Scenario A. EAR, dual use, items: if the equipment does not require a license to export it to any country, then no, the temporary export does not require a license. If on the other hand, the item would normally require a license to export abroad, a specific license exception, such as the “Tool of Trade” exception, must apply to the temporary export or otherwise a license is required.  The “Tool of Trade” exception covers temporary exports of “usual and reasonable kinds and quantities” of items for use abroad by the exporter, provided that the items remain under the “effective control” of the exporter and are utilized for a lawful enterprise or undertaking. In addition, this exception has other qualifications based on type of export, destination, and duration of export. Hence, it can only be used when all requirements are met.     

Scenario B. ITAR, defense articles and technical data: Yes; a DSP73 license is always required, even if you are only sending or transporting the ITAR-controlled technology or technical data to international waters or airspace (i.e. not landing in any particular country). 

A: You will likely need to obtain two licenses.

The ITAR item will require a DSP license, depending on the purpose of the export; the EAR item may require a separate license if controlled under the EAR. EAR items incorporated into ITAR items may lose their EAR identity, resulting in the entire item getting classified under ITAR. ITAR items incorporated into EAR-controlled or otherwise non-licensable items (No License Required) render the entire assembly ITAR, by virtue of the “see-through” rule under the ITAR regulations.

A: A 'defense service' entails the furnishing of assistance (including training) to foreign persons, whether in the U.S. or abroad, in the design, development, engineering, manufacture, production, assembly, testing, repair, maintenance, modification, operation, demilitarization, destruction, processing, or use of defense articles. It also includes the furnishing to foreign persons of any technical data controlled under the USML whether in the U.S. or abroad, and military training of foreign units and forces, regular and irregular, including formal or informal instruction of foreign persons in the U.S. or abroad or by correspondence/online courses, technical, educational, or information publications and media of all kinds, training aid, orientation, training exercise and military advice. In these instances, it is necessary to first obtain a Technical Assistance Agreement (TAA) from the State Department prior to releasing the data or conducting the activity (assuming that a TAA can be obtained, which, for some countries, such as North Korea, it cannot).

It is also important to note, when you “release” ITAR technology or technical data (i.e. information or software not in the public domain about design, use, modification, repair, etc. of a defense article) to a foreign national (including foreign national students or visitors on campus, off campus, or abroad), this constitutes an export, requiring a license prior to such activity. In this context, ITAR technology or technical data can be “released” merely by the provision of visual access, computer access, or oral disclosure of the data, even where it is not being utilized by the foreign national.

A: Not necessarily. Where you are teaching or discussing any item in the public domain, including something that clearly has a defense application, or you have self-invented such information during the course of fundamental research with the intention to publish it, in general there is no license requirement. However, a license requirement does apply when you are releasing ITAR technical data in the manner of a defense service; i.e., providing technical assistance or training to a foreign national in the U.S. or abroad on design, development, engineering, use, modification, repair, etc., of a defense article (even if the data provided is in the public domain); or providing any technical data to a foreign military organization in the U.S. or abroad to train or advise on a military objective, regardless of whether the data or information being transferred is EAR or ITAR-controlled or in the public domain. Likewise, a license requirement would also apply when you are exporting ITAR technical data that you have received from a sponsor (government or industry) or research collaborator (government, industry, or research institution) under a restricted agreement i.e. it is explicitly export controlled, and does not qualify as fundamental research intended for the public domain.

A: When in doubt, refer the evaluation to the Export Compliance Officer. Typically, the College’s research instruments are not categorized under the USML; however, as noted earlier, they may be dual-use controlled under the EAR and hence require a license. Where an item is 'specially designed' or modified for defense purposes as defined under the USML, it is likely ITAR-classified.  As an example, when an item is procured, this designation may be referenced in the vendors’ operation manual or sales documentation, though not always. Another example, research institutions transferring ITAR technology or technical data during the course of collaborative research do not always identify such technology or technical data as ITAR-controlled, unless the Material Transfer Agreement so requires.

Bottom line: you cannot tell whether an item is EAR or ITAR controlled merely by looking at the MTA or procurement documentation.

A: Yes. All imported items are subject to U.S. Customs regulations, and may have Customs duty and reporting requirements. Importing items listed on the USML requires an ITAR license, unless certain specific exemptions are met. Additionally, a license may be required in the event that you are importing Nuclear Regulatory Commission regulated items, or items from an embargoed country (currently Cuba, Iran, North Korea, and Syria).

2. Laboratory Access to EAR and ITAR controlled Items and Data

A: In some cases, yes. Assuming the Fundamental Research Exclusion (FRE) applies to the activity in which EAR-classified equipment is being accessed and the foreign national is only using the equipment, generally speaking no license is required. However, there are some narrow exceptions to this rule: access to a) certain levels of advanced cryptographic functionality and source code; b) proprietary third party “use” and “development” technology pertaining to research equipment if the equipment itself is dual use controlled; or if they are c) operating, installing (including on-site installation), maintaining (checking), repairing, overhauling, and refurbishing the equipment. If there is an ITAR item in the laboratory, access to that item will need to be restricted (please see 2.3 below).

A: In some cases, this will also be licensable. Providing controlled data pertaining to “use” and development” technology to a foreign national or providing access to ITAR technical data (even if such data is not intended to be used) will require license review.

ITAR technical data is defined as information which is required for the design, development, production, manufacture, assembly, operation, repair, testing, maintenance, or modification of defense articles; this can be in the form of blueprints, drawings, photographs, plans, instructions, or documentation. This also includes 600-series items controlled by the CCL, information covered by an invention secrecy order, or software directly related to a defense article.

A:  Yes. The College may obtain funding with publication and/or citizenship restrictions where the senior leadership approved the agreement. This will likely involve project-level restrictions that directly limit or restrict altogether foreign national participation and/or public release. These controlled activities will also require a Technology Control Plan (TCP) to be completed for all participants prior to activities commencing. 

A: If you’ve purchased the item (or otherwise received it from a third party and it is not already in the public domain, i.e., it is proprietary technology), then access of any kind or use of the item (directly or by virtue of receiving controlled technical data, e.g., in the form of a manual) is restricted and will most likely be subject to license authorization. In this case, if no license is required, the ITAR item will require a Technology Control Plan (TCP) and potentially an Access Control Plan (ACP) to restrict access by foreign nationals.

However, if you’ve invented the item you should work with the Export Control and International Compliance office as well as the Intellectual Property and Licensing group within Advantage regarding potential controls and next steps. 

A: Yes, access is restricted, with one exception that can potentially be utilized with the assistance of the Export Compliance Officer. The ITAR allows a PI to access ITAR technical data where the PI is a bona fide, full time employee of the research institution and meets other specific criteria. Assuming the terms of this exception are met, the PI is subject to the same no-transfer restrictions that a U.S. person PI is subject to. Hence, this exception is used for accessing background information only necessary to launch or conceptualize contemplated fundamental research. If the research requires the data to be shared with the research team which may include foreign nationals, the exception cannot be invoked, since only the PI may qualify under the exception. PIs wishing to explore using this exception must contact the Export Compliance Officer prior to accessing any such articles or technical data.

3. Special Concerns at College’s Facilities Subject to User Agreements

A: Users should be screened through Visual Compliance at the time of Agreement to ensure that the College is not partnering with any individual or entity identified on a government watch list. Subsequent changes in the Agreement party’s participating personnel would have to be subsequently flagged and screened.

A: There may be export control implications. In the event that the equipment or data is export controlled and not being used for 'fundamental research' purposes, access restrictions may apply. Exposure to foreign nationals may require prior authorization and a Technology Control Plan (TCP) might be required in order to ensure that access restrictions are being maintained appropriately. This would be true whether the party brings in this equipment or proprietary data for their own use, for the College’s use, or for collaborative use.

A: There may be similar export control implications (please see 3.2). In the event that the technical data is export controlled and not being used for 'fundamental research' purposes, access restrictions may apply. Also note: In the event that the remote user is a non-U.S. party located abroad and the College would be exporting any items or information back to that party, the item would need to be classified for license determination prior to export.

4. Complying with the Fundamental Research Exclusion (FRE) Off Campus

A: When presenting research results abroad, attending professional conferences etc., as long as what is being presented is the result of 'fundamental research' intended for publication or to be published (without the requirement for prior review or approval), there should not be an export license requirement. If you depart from this framework and present in any form data which is proprietary to another party, or restricted by the sponsor’s contract or funding mechanism, then the 'fundamental research', education, and conference exclusions no longer apply.

Note: When you are presenting at a professional conference, that conference must be open to the interested public or those normally associated with the academic or professional subject at hand and not closed to participation in a way that is contrary to the premise of placing 'fundamental research' results in the public domain.

A: You will need to contact the Export Control and International Compliance office prior to exporting your laboratory instruments or tools even if you intend to take possession of them upon your arrival or hand carry them abroad as an export license may be required. 

In the event your export does not require a license, the Export Control and International Compliance office can provide you with a No License Required (NLR) or license exception letter to take with you and keep with your accompanying equipment during your work abroad to ease your travels.

5. Travel Abroad

A: Yes, with several exceptions. If, for example, you happen to have export controlled technical data on your laptop (i.e. proprietary data which is not published or intended for publication and the result of fundamental research), then traveling outside of the Unites States with your laptop could require an export license, depending on its EAR or ITAR classification and your destination. In general, it is best practice not to travel with a laptop or other portable device containing such controlled data; it is recommended to either remove the data prior to travel or to travel with a clean device.

Reminder: If you have an active Technology Control Plan (TCP) you are required to notify the Export Compliance Officer prior to travel. 

A: If EAR (dual use) controlled, such items may or may not require a license or qualify for license exceptions, such as the Tools of Trade exception, and therefore require prior classification and review by the Export Control and International Compliance office. If the item is ITAR controlled, a license is almost always required, and the Export Control and International Compliance office will apply for an export license on your behalf. 

6. International Collaborations and Conducting Research Abroad

A: Yes, in several respects. 

The exchange of scientific information with researchers and institutions abroad can trigger export control requirements such as end user screening, as well as export licensing requirements potentially associated with the transfer of tangible items, proprietary technical data, software, and transfers that meet the definition of a defense service or could trigger OFAC requirements.

Screening should be performed at the outset of any international institutional collaboration, to ensure that the collaborating entity does not appear on any of the U.S. Government’s Restricted Parties Lists. If there is any question as to whether you might be sharing research results that are not intended for publication, or you are transferring abroad any commodity or software that could be controlled under the EAR or ITAR, you should contact the Export Control and International Compliance office.

Finally, scholars and researchers who visit the College as part of the collaboration must be restricted from accessing the College's laboratories wherein sensitive or controlled items or technical data are kept or used. 

7. Office of Foreign Assets Controls (OFAC)

A: The Office of Foreign Assets Control (OFAC) regulations pertaining to transactions with these countries vary by country. These regulations address not only export, but a much broader spectrum of activity (e.g., imports, financial transactions, or providing a service) that OFAC restricts absent specific or general license approval.

For example, the Cuba sanctions regulate personal travel to Cuba as well as professional research activity conducted with Cuba institutions here and abroad. That said, the Cuba regulations allow for a broad range of research and humanitarian related activity with an approved license from OFAC. In fact, recent changes to the Cuba regulations have resulted in, among other things, an expanded set of activities which fall under a “General License” and do not require prior approval from OFAC.

The Iran sanctions, on the other hand, do not regulate individual tourist travel to Iran, but remain highly restricted as to any activity, research or otherwise, which OFAC defines as a “service” to Iran. While certain kinds of collaborative research activity are permissible with Iranian institutions, to the extent such research contemplates the exchange of material items with Iran, or providing advice on establishing a laboratory or research facility in Iran, a license may be required. Likewise, peer review or editorial comment that extends beyond the scope of what is normally defined as credential input or scientific journal editorial review may likewise trigger a license requirement.

Hence, when contemplating any research or transactional activity with one of these OFAC countries or foreign nationals known to reside in these countries, contact the Export Compliance Officer for assistance before proceeding.