Department of State Registration

Did you know that universities are not required to register with the Directorate of Defense Trade Controls under ITAR 122.1 exemption 2 and 4 (see below)? However, if you need to apply for a license, or even to use the Canadian exemption you are required to register as a precondition. Registration fees at the time of this writing are $2250 per year. That is pretty steep for a university to pay if they only have an occasional ITAR item to export. This is the case in my experience where we needed to use the Canadian exemption at 126.5 to transfer some technical data specifications under one of our NASA space research projects to a company in Canada to build a prototype for the university. As the registration requirement states, you only need one occurence of exporting to be considered in the business of either manufacturing or exporting defense articles to trigger registration.

§ 122.1 Registration requirements.
(a) Any person who engages in the United States in the business of either manufacturing or exporting defense articles or furnishing defense services is
required to register with the Directorate of Defense Trade Controls. For the purpose of this subchapter, engaging in the business of manufacturing or exporting defense articles or furnishing defense services requires only one occasion of manufacturing or exporting a defense article or furnishing a defense service. Manufacturers who do not engage in exporting must nevertheless register.

(b) Exemptions. Registration is not required for:
(1) Officers and employees of the United States Government acting in an official capacity.
(2) Persons whose pertinent business activity is confined to the production of unclassified technical data only.
(3) Persons all of whose manufacturing and export activities are licensed under the Atomic Energy Act of 1954, as amended.
(4) Persons who engage only in the fabrication of articles for experimental or scientific purpose, including research and development.
[58 FR 39298, July 22, 1993, as amended at 71 FR 20540, Apr. 21, 2006]

Fundamental Research Exclusion (FRE)

You may already know that the majority of university research will fall under the Fundamental Research Exclusion (FRE), but did you know of the important differences in the definitions among the three major export control regulations: OFAC, EAR and ITAR?

Under the ITAR the definition of FRE is basic and applied research in engineering and the sciences conducted at a U.S. institution of higher education where the results are published broadly among the scientific community. This FRE definition does not allow publication restrictions or dissemination access controls (restrictions on foreign nationals from participation).

Under the EAR, FRE is basic and applied research where the results are broadly published among the scientific or public community. Note that geographic location and locus of the organization are not restricted. Additionally, dissemination access controls will not usually trigger a need for a license as long as the organization follows the security controls of the contract or agreement. Publication restrictions are not allowed except for pre-review to remove proprietary information.

Under OFAC there is no FRE. However, there is an exemption for informational materials already in existence in the public domain. Also, OFAC has stated that there are no restrictions for persons from embargoed countries to participate in federally sponsored research as long as the foreign national agrees not to transfer the research information or technology to their home country through any means including electronic, hand carrying, or phone. It is recommended when using this guidance that a signed statement from the foreign national be obtained to insure their understanding of protecting the data or technology.

What Do Universities Export?

I get this question at every conference I attend since most of the audience at an export compliance conference are corporate export officers and not from academia. The answer - almost anything from technology prototypes, to biological materials, to field research in embaroged countries. This blog will attempt to answer many of the export control regulations questions that arise in an academic research community.