1. What is an export?
The export regulations define an export as:
- Any oral, written, electronic or visual disclosure, shipment, transfer or transmission outside of the United States to anyone, including a U.S. citizen, of any commodity, technology (information, technical data, or assistance) or software/codes
- Any oral, written, electronic or visual disclosure, transfer or transmission to any person or entity of a controlled commodity, technology or software/codes with an intent to transfer it to a non-U.S. entity or individual, wherever located (even to a foreign student or colleague at UT Arlington)
- Any transfer of these items or information to a foreign embassy or affiliate.
It is important to emphasize that only exports for which the U.S. government requires a license are those that are listed on the export controlled lists. The vast majority of exports do not require the prior approval of the U.S. government in a university setting.
2. Who controls exports?
There are two government agencies that control exports:
- The United States Department of Commerce through its Export Administration Regulations (EAR), Title 15, sections 730-774 of the Code of Federal Regulations. For a list of controlled technologies, see 15 CFR 774, Supplement I.
- The United States Department of State (which controls the export of “defense articles and defense services”) under the International Traffic in Arms Regulations (ITAR), 22 CFR 120-130. For a list of controlled technologies, see 22 CFR 121.1.
- A complete on-line version of the EAR and ITAR (including the critical technology list) is available on-line.
3. What is fundamental research?
Fundamental research, as used in the export control regulations, includes basic or applied research in science and/or engineering at an accredited institution of higher learning in the United States where the resulting information, in some cases, is ordinarily published and shared broadly in the scientific community and, in other cases, where the resulting information has been or is about to be published. Fundamental research is distinguished from research that results in information that is restricted for proprietary reasons or pursuant to specific U.S. government access and dissemination controls. University research will not be deemed to qualify as fundamental research if:
- The university or research institution accepts any restrictions on the publication of information resulting from the research, other than limited prepublication reviews by research sponsors to prevent inadvertent divulging of proprietary information provided to the researcher by the sponsor; or
- The research is federally funded and specific access or dissemination controls regarding the resulting information have been accepted by the university or the researcher.
- All Fundamental Research is Exempt from EAR.
4. What is considered published information as used in Question 3?
The EAR and ITAR approach the issue of publication differently. For the EAR, the requirement is that the information has been, is about to be, or is ordinarily published. The ITAR requirement is that the information has been published.
Information becomes “published” or considered as “ordinarily published” when it is generally accessible to the interested public through a variety of ways. Publication in periodicals, books, print, electronic or any other media available for general distribution to any member of the public or to those that would be interested in a scientific or engineering discipline. Published or ordinarily published material also includes the following:
- Readily available at libraries open to the public;
- Issued patents; and,
- Releases at an open conference, meeting, seminar, trade show, or other open gathering.
A conference is considered “open” if all technically qualified members of the public are eligible to attend and attendees are permitted to take notes or otherwise make a personal record (but not necessarily a recording) of the proceedings and presentations. In all cases, access to the information must be free or for a fee that does not exceed the cost to produce and distribute the material or hold the conference (including a reasonable profit).
5. What is public domain and why is it important?
6. If a license is needed, what is the process?