Export Controls Policies and Guidelines

Policies & Guidelines

Overview

What is an Export?

An export is a transfer of items, software or technology to a foreign person, foreign entity or foreign destination.

  • The definition of technology includes information that can be used or adopted for the development, production or use of a good.
  • Information can take the form of technical data or technical assistance. Examples include but are not limited to: blue prints, sketches, models, drawings, software, manuals, training and technical services.

An export of technology or source code to a foreign person that occurs within the United States is called a "deemed export".

  • Examples of a deemed export of technology or source code include: visual inspection of a controlled technology, an oral exchange of technical information and training on the practice or application of a technology.

Export controls also prohibit exports of any type to certain countries and persons/entities.

Penalties for export control violations are severe and may be assigned both to the person violating the regulations as well as Appalachian. Civil penalties include $250,000 per transaction and up to 10 years in prison. The University is required to keep records of compliance with export control regulations for 5 years.

Who Monitors Export Controls?

Export control regulations regulate both exports and deemed exports and are promulgated by several federal agencies:

  • The Export Administration Regulations (EAR) administered by the Department of Commerce. The EAR regulates the export of dual use items – items that may have both a commercial and military application – as well as items with only commercial applications.
  • The International Traffic in Arms Regulations (ITAR) administered by the Department of State. The ITAR regulates the export of items inherently military in nature. Items regulated by the ITAR are listed on the United States Munitions List (USML).
  • The Office of Foreign Assets Control (OFAC) of the Department of the Treasury administers and enforces sanctions against targeted foreign countries and terrorists. Distributing items or providing services to a sanctioned country without permission from the U.S. government will result in a federal violation. The list of sanctioned countries changes so please monitor the list.
  • Several different government agencies also publish Restricted Party Lists. Transactions with people or entities on these restricted party lists are prohibited. Please submit a Restricted Party Screening Request (DOC 32K) to request a screening so that you do not enter into a transaction with a restricted party.

Is Anything Exempt from Export Controls?

Generally, fundamental research -- basic and applied research in science and engineering where the resulting information is ordinarily published and shared broadly -- conducted at Appalachian is excluded from export controls. In addition, published information that is generally accessible to the public is not regulated by export controls. Likewise, instruction in science, math and engineering courses listed in course catalogues is excluded from export controls. See the Exclusions to Export Controls below for more information.

Are There Penalties for Violating Export Controls?

Penalties for export control violations are severe and may be assigned both to the person violating the regulations as well as Appalachian. Civil penalties include $250,000 per transaction and up to 10 years in prison. The University is required to keep records of compliance with export control regulations for 5 years.

Please consult the Forms and Resources webpage for additional information about complying with export controls when traveling abroad with Appalachian owned items, collaborating with foreign nationals, or exporting items or information abroad.

How do export controls affect researchers?

  • Export controls require screening (DOC 32K) of international collaborators against government restricted party lists. 
  • Export controls require an export license or the documentation of an exception for an export license for the transmission of items, software or technical information outside of the United States.  
  • If your research does not fall under the Fundamental Research Exclusion, please contact Robin Tyndall at compliance@appstate.edu to discuss potential deemed exports to foreign nationals at Appalachian.

What kind of research is export controlled?

  • Any research activity may be subject to export controls if it involves the actual export of controlled goods, technology, or software or “deemed export” of technology or source code to a foreign national within the United States. 
  • Information resulting from fundamental research and information in the public domain is excluded from export controls.  See Basics of Export Controls and Exclusions to Export Controls for more information.  Stanford University has a Decision Tree that can be used to determine if research is export controlled. 
  • Research in the following areas is commonly regulated by export controls (note: this is not a complete list):
    • Chemical, Biotechnology and Biomedical Engineering
    • Materials Technology
    • Remote Sensing, Imaging and Reconnaissance
    • Navigation, Avionics and Flight Control
    • Robotics
    • Propulsion System and Unmanned Air Vehicle Subsystems
    • Telecommunications/Networking
    • Research with controlled chemical, biological agents and toxins
    • Sensors and Sensor Technology
    • Advanced Computer/Microelectronic Technology
    • Information Security/Encryption
    • Laser and Directed Energy Systems
    • Marine Technology

As a Principal Investigator, what should I do to comply with export controls?

  • Review the export controls website and attend a training session on export controls or review the online export controls training powerpoint presentation (PPT 3.15M).
  • Provide all agreements, memoranda of understanding, contracts, terms or clauses negotiated with a sponsor to the Office of Research and Sponsored Programs to review for any provisions or restrictions that might negate the Fundamental Research Exclusion from export controls requirements.
  • Complete restricted party screening of any international collaborators and request assistance for the export of any technology and goods overseas. 
  • For any export controlled technologies, complete a Technology/Data control plan to restrict access of export controlled research to foreign nationals on campus.  See the Forms and Resources webpage for a template.

If a sponsored project has publication restrictions and/or restrictions on who can participate in the research, how does that impact export controls?

  • Publication restrictions and/or restrictions on the participation of foreign nationals in the research negate the Fundamental Research Exclusion so the research may be export controlled.

If research is export controlled, what should we do?

Fortunately, some exports of information and software are excluded from export controls.

Fundamental research, defined in Part 734.8 of the Export Administration Regulations as "basic and applied research in science and engineering, where the resulting information is ordinarily published and shared broadly within the scientific community", is excluded from export controls regulating deemed exports. In other words, fundamental research conducted at Appalachian may be shared with foreign nationals in the United States. Shipments of goods or services outside the U.S. are not covered by the Fundamental Research Exclusion. If fundamental research includes any restrictions on publication (such as pre-approval by a sponsor) or if the sponsor of fundamental research limits the participation of foreign nationals, then the fundamental research will be subject to the export controls.

Information in the Public Domain that is published and generally accessible to the public does not require an export license. Examples of published material include: periodicals, books, electronic media available for general distribution to any interested member of the public, any materials available at public or university libraries, patents and information released at an open conference, meeting, seminar or other open gathering.

Instruction in courses and teaching laboratories listed in a course catalog are exempt from export regulations. Typically, instruction includes transmitting information concerning general scientific, mathematical and engineering principles commonly taught in schools, colleges and universities or information in the public domain.

Please consult Robin Tyndall at compliance@appstate.edu or 262-2692 for further information on exclusions to export controls.

In order to export an item or software, the item or software must be classified according to export regulations. In some cases, the producer of the item or software may be able to classify the item or software. See the Forms and Resources page for websites with export classifications.

For the export of goods, submit a Request for Assistance for the Export of Goods (DOC 28K). Requests should be submitted with ample time to get an export license if a license is required. Government agencies can take 2 to 6 months to process an export license.

Any export that requires an export license or is valued over $2500 should be entered into the Automated Export System (AES) hosted by the Census Bureau. The AES system will provide the export with an International Transaction Number (ITN). Typically, this is done approximately 24 hours prior to shipment to alert Customs and Border Patrol. If a freight forwarder files with AES for you, please obtain the ITN for documentation purposes.

Comprehensive and Limited OFAC Sanction Programs

  • Balkans
  • Belarus
  • Burma (Myanmar)
  • Cote d'Ivoire
  • Cuba
  • Democratic Republic of the Congo
  • Iran
  • Iraq-related
  • Former Liberian Regime of Charles Taylor Regime
  • Lebanon-related
  • North Korea
  • Somalia
  • Sudan
  • Syria
  • Zimbabwe

For more information, consult: http://www.ustreas.gov/offices/enforcement/ofac/programs/index.shtml

Country Group D:1 National Security

  • Armenia
  • Azerbaijan
  • Belarus
  • Burma
  • Cambodia
  • China (PRC)
  • Georgia
  • Iraq
  • Kazakhstan
  • North Korea
  • Kyrgyzstan
  • Laos
  • Libya
  • Macau
  • Moldova
  • Mongolia
  • Russia
  • Tajikistan
  • Turkmenistan
  • Ukraine
  • Uzbekistan
  • Vietnam

Laptops

When you carry a laptop or other item with you outside of the U.S., you are effectively exporting items which may be subject to export control regulations. In cases where a laptop is being taken, the laptop may not be strictly controlled, but the software may have encryption capabilities that are strictly controlled. In addition, any technical information on the laptop that can be used or adopted for the development, production or use of a controlled good may be controlled by export control regulations. Examples include but are not limited to: blue prints, models, software and manuals.

  • If you intend to bring a laptop, read the Laptop Briefing (PDF 84K).
  • For items that are personally owned, a Baggage License Exception (see Traveling Abroad below) may be available.
  • For Appalachian-owned items, please determine if a Temporary License Exception (see Traveling Abroad below) applies.
    • If you determine that it applies, submit a One-Time certification (PDF 33K) documenting the exception from export controls to the Office of Research Protections.  Send it to compliance@appstate.edu
    • The Office must keep this documentation for 5 years to comply with export control regulations.

Traveling Abroad

First, visit the Office of International Education and Development site's International Travel page for information and forms you will need for travel outside the United States.

After you submit your Travel Authorization Form, please read the Export Controls Briefing (PDF 84K) to learn how export controls affect your travel. If you are traveling to a sanctioned country (see Sanctioned Countries list in Overview section above), please contact the Office of Research Protections at compliance@appstate.edu or 262-2692 to discuss the impact of sanctions on your travels.

If you are going to Cuba, see information on our Cuba webpage.

If you need assistance with obtaining a Visa, DO NOT contact the government offices directly! Use this link to contact our government relations team who can help you.

Also, remember to get International Travel Insurance  from the Office of International Education and Development.

The Baggage License Exception (Section 740.14 of the EAR) authorizes individuals who are U.S. persons leaving the United States to export or rexport certain commodities and software for personal use as they travel to any country other than Cuba, Iran, North Korea, the Sudan or Syria. The commodities and software can include: personal effects, household effects, vehicles and technology as a tool of trade. A tool of trade is defined as "Usual and reasonable kinds and quantities of commodities and software for use in a lawful enterprise or undertaking of the exporter."

Restrictions on the export of technology under Baggage License Exception include:

  • The technology must be used overseas solely by individuals or members of their immediate family who are U.S. citizens traveling with them; and
  • Adequate security precautions must be taken to protect against unauthorized access to the technology, such as the use of a Virtual Private Network, the use of password systems and use of personal firewalls; and
  • The technology must not be used for foreign production purposes or for technical assistance.

Individuals leaving the United States temporarily must bring back items under this License Exception unless the items are consumed abroad. In order to use the Baggage License Exception for the export of items regulated by the Export Administration Regulations (EAR), you must answer YES or TRUE to the following four statements:

  • Do you or a member of your immediate family own the item?
  • Do you or a member of your immediate family traveling with you intend to use the item for necessary and appropriate use?
  • The item will not be sold or discarded while traveling.
  • The travel is not to a terrorist supporting country (Cuba, Iran, North Korea, the Sudan and Syria).

If you have questions about the baggage export license exception, please contact Robin Tyndall at compliance@appstate.edu or at 262-2692.

Complete both checklists below to determine if a temporary export license exception for University owned or controlled items and software, including laptops and GPS equipment, applies.

Instructions: For a temporary export license exception for an item or software to apply, the answers to the following questions must be YES.

QuestionYesNo
Is the item or software being shipped or hand-carried abroad?  
Will the item or software be returned to the U.S. within 12 months of being taken abroad or either consumed or destroyed abroad?  
Will the item or software be used ONLY as either:a "tool of the trade" to conduct Appalachian State University business, or for exhibition or demonstration, orfor inspection, testing, calibration or repair?  
Will the item or software remain under the "effective control" of Appalachian personnel while the property is abroad? Effective control is maintained over an item when you either retain physical possession of the item, or secure the item in a secure environment such as a hotel safe, a bonded warehouse, or a locked or guarded exhibition facility. (EAR Part 772.1)  
Is any encryption software incorporated in the item or software available through retail purchase (phone order, mail, internet, or over-the-counter transactions)?  

Instructions: For a temporary export license exception for an item or software to apply, the answers to the previous set of questions must be YES and the answers to the following questions must be NO.

QuestionYesNo
Is the destination country on the embargoed countries list or listed in country group E:1 in the EAR? (See Sanctioned Countries list in Overview section above.)  
Is the item or software to be used abroad for inspection, testing, calibration or repair AND is the destination country in country group D:1 in the EAR? See Sanctioned Countries list in Overview section above.)  
Do you know or have any reason to believe that the item or software may support the design, development, production, stockpiling or use of a nuclear explosive device, chemical or biological weapons, or missiles?  
Will the item or software be used to provide technical assistance with the development or production of publicly available encryption software?  
Is the item or software for use in/with/by satellites, space craft or otherwise regulated as a defense article?  

After completing both checklists and determining that a temporary export license exception applies, complete a one-time certification (PDF 33K) documenting the exception. If a temporary export license exception does not apply, please contact Robin Tyndall at compliance@appstate.edu or 262-2692 to discuss additional options.