1. PUBLIC DOMAIN: (i) Equipment is not involved, AND (ii) there is no reason to believe that Information or non-encrypted Software being released, whether in the U.S. or abroad, will be used in/for a weapon of mass destruction, AND (iii) any U.S. government funding does not impose export controls, AND (iv) the Information/Software is already published, not just ordinarily published, through/at one or more of the following-
Transfer to foreign students/visitors in the U.S. (“deemed export”) or communication/transfer to researchers abroad (“export”) is permitted as long as I.A.1 above applies. For prudence, if involving OFAC embargoed or ITAR or EAR restricted countries (see II. B.), always contact SPARCS first. Restrictions and licenses may apply to travel to embargoed countries.
OR
2. FUNDAMENTAL RESEARCH: (i) Equipment is not involved, AND (ii) there is no reason to know that Information or non-encrypted Software will be used in/for a weapon of mass destruction, AND (iii) the Information/Software is being released to foreign nationals in the U.S. only (deemed export), AND (iv) it is the result of scientific or engineering research at an accredited university in the U.S. to which no publication restrictions apply (other than a short period in which to seek patent protection or remove sponsor proprietary data, but only if it is not on the U.S. Munitions List (USML)—see I. B), AND (v) it is not proprietary and is ordinarily published and broadly shared in the scientific community-no side deals. If information/software is on the USML, it must actually be published (See I.A.1 above).
Transfer/communication to any foreign national in the US only (deemed export) is permitted.
a. the Equipment, Software, Technology is on the USML under the International Traffic in Arms Regulations (ITAR) http://pmdtc.org/,
b. the Equipment, Software, Technology is on the Commerce Control List (CCL) under the Export Administration Regulations (EAR) http://www.bxa.doc.gov/ (note, EAR 99 on the CCL is a “catch-all” category and virtually all technology not otherwise captured falls in this category, although licenses are not required, except to specified destinations/users),
If a, b, c, or d apply, you must contact SPARCS for an analysis of whether an export license is required (and whether it will be presumed to be granted or denied) before any foreign national is involved or transfer out of the US occurs. Please contact SPARCS as early as possible. Licensing takes time and SPARCS can assist you to avoid undue delays in your research.
C. YES IF…the Equipment, Software, or Technology is designed or modified for (i) a military use, (ii) use in outer space, or (iii) there is reason know it will be used for/in weapons of mass destruction.
II. DO I NEED A LICENSE IF INFORMATION, SOFTWARE, EQUIPMENT IS NOT ON THE USML AND IS ON THE CCL AS EAR 99 ONLY?
1. I. A above applies or it is “publicly available” --
OR
EAR export controls don’t apply even if OFAC embargoed countries are involved.
III. IF ITEM OR SOFTWARE IS ON ITAR’S USML AND I.A. ABOVE DOES NOT APPLY, WILL I GET A LICENSE?
A. No, IF the destination is, or foreign national (even at NCSU) exposed is a national of, Afghanistan, Armenia, Azerbaijan, Belarus, Cuba, Iran, Iraq, Libya, N. Korea, Syria, Vietnam, Burma, China, former Republic of Yugoslavia (Serbia and Montenegro), Haiti, Liberia, Rwanda, Somalia, Sudan, or Zaire.
B. MAYBE OTHERWISE.
If you have any questions, please call SPARCS. Export control laws are complex and these thresholds do not cover all circumstances.
Regardless of any other provision, the knowing transfer of any item, software, commodity or technology to certain countries (and any related instruction or information transfer in the U.S. or abroad), for a nuclear, missile, or chemical/biological weapon end use is prohibited. Please contact SPARCS if such end use may be involved before any transfer begins.