MinerAlert
MinerAlert
U.S. export control laws and regulations control the conditions under which certain items can be transmitted or shipped internationally to anyone (including U.S. citizens) or disclosed, released, or transferred to a foreign national on U.S. soil (“deemed export”). Under U.S. export control laws and regulations, exports are broadly defined as:
Failure to comply with export control requirements may result in severe penalties to the university, as well as criminal sanctions to individuals. Individuals working in the following areas, which are most likely to be subject to export controls, should become familiar with those laws and regulations and the procedures described below: physical and computer sciences (especially when involved in defense related research); the biological sciences and medicine (including work with select agents and infectious materials); or anyone conducting research or academic collaborations with colleagues in countries that have been designated by the U.S. government as sanctioned or as supporting terrorism.
The primary sources of export control regulation are:
The U.S. Department of Commerce, Bureau of Industry and Security (BIS) issues the Export Administration Regulations (EAR), 15 CFR § 730 through 774, to implement the Export Administration Act (EAA) and other statutory requirements. Amendments to the EAR are published in the Federal Register. Items subject to the EAR include purely civilian items, “dual-use” items (items having both civil and military, terrorism, or potential WMD-related applications), and items that are exclusively used for military applications but that do not warrant control under the International Traffic in Arms Regulations (ITAR) (22 CFR parts 120 et seq.).
The BIS is charged with the development, implementation, and interpretation of U.S. export control policy for items subject to the EAR and maintains the Commerce Control List (CCL), a list of items under the export court jurisdiction of the U.S. Department of Commerce and their Export Control Classification Numbers (ECCNs). The CCL does not include items exclusively controlled for export by another department or agency of the U.S. Government, though in instances where other agencies administer controls over related items, entries in the CCL may contain a reference to such controls.
The BIS is also responsible for the development, implementation, and interpretation of the anti-boycott provisions of the EAR, 15 CFR Part 760. The anti-boycott provisions discourage, and in some cases, prohibit U.S. persons from participating in foreign boycotts that the United States does not sanction, including complying with certain requests for information designed to verify compliance with the boycott. U.S. persons are also required to report receipt of boycott-related requests. The anti-boycott provisions have the effect of preventing U.S. from being used to implement foreign policies of other nations that run counter to U.S. policy.
Generally, all items of U.S. origin, or physically located in the United States, are subject to the EAR. Foreign manufactured goods are generally exempt from the EAR re-export requirements if they contain less than a de minimis level of U.S. content by market value. Such de minimis levels are set in the regulations relative to the ultimate destination of the export or re-export.
The EAR requires a license for the exportation of a wide range of items with potential “dual” commercial and military use, or otherwise of strategic value to the United States (but not made to military specifications). However, items listed on the Commerce Control List (CCL) may require a license prior to exportation. Items not listed on the CCL are designated as EAR99 items and generally can be exported without a license, unless the export is to an embargoed country, to a prohibited person, or for a prohibited end-use.
The following summarizes the types of items controlled under the EAR:
Many activities are not subject to the EAR. In addition to activities subject to the exclusive authority of another agency (i.e., the export of a defense article which is controlled by ITAR), the EAR lists several exclusions from the regulations. These include published information, information resulting from fundamental research, and educational information.
The CCL provides a list of very specific items that are controlled. The CCL is similar to the "dual use" list adopted by other countries under the Wassenaar Arrangement, although the CCL has additional items. The CCL is divided into ten categories 0-9 and is available online at: Commerce Control List (CCL)
BIS encourages exporters to use the detailed descriptions in the CCL to self-classify items to be exported. However, in the event of an incorrect classification, the exporter is liable for any resulting violations of the EAR and may be subject to resulting penalties. Self-classification may be particularly difficult in the university environment where cutting-edge research pushes the boundaries of existing technologies, and in fact may not precisely meet the technical specifications as described in the existing CCL listings. When unsure about a self-classification, the exporter may submit the item/technology to BIS for a formal classification.
However, the Directorate of Defense Trade Controls (DDTC) has jurisdiction to decide whether an item is ITAR- or EAR-controlled. DDTC encourages exporters to self-classify the product. If doubt exists, a Community Jurisdiction (CJ) request may be submitted to DDTC to determine whether an item is ITAR- or EAR- controlled.
Once it is determined that an item is EAR-controlled, the exporter must determine its Export Control Classification Number (ECCN). BIS has two assistance procedures where the proper ECCN classification or licensing requirements are uncertain. To determine both EAR’s applicability and the appropriate ECCN for a particular item, a party can submit a “Classification Request” to BIS. To determine whether a license is required or would be granted for a particular transaction, a party can request BIS provide a non-binding “advisory opinion.” While BIS provides assistance with determining the specific ECCN of a dual-use item listed on the CCL, if doubt exists as to whether an item is ITAR- or EAR-controlled, BIS will stay its classification proceeding and forward the issue to DDTC for jurisdiction determination.
Unlike ITAR, for classification purposes BIS generally looks at the classification of the complete product being exported rather than at the classification of each subcomponent of the item. This is different from the "see through" treatment under the ITAR. At UTEP, the ECO will assist with the submission of commodity classification/jurisdiction requests as well as with the determination of any export licensing requirements.
Once determined that a license is required, an exporter can apply for export authorization from BIS. Unlike the ITAR, there is no requirement for formal registration prior to applying for export authorization. Additionally, the EAR has no equivalent to the Technical Assistance Agreement (TAA) used in ITAR exports.
The EAR contains a number of exceptions. Determining whether a particular exception applies requires review of the specific application as detailed in 15 C.F.R. § 740, as well as review of the notes on applicable license exceptions following the ECCN entry on the CCL. Once an item has been classified under a particular ECCN, a person can determine whether a license is required for export to a particular country.
A complete listing of EAR license exceptions may be found in 15 CFR § 740. Exceptions commonly applicable to members of the UTEP community travelling abroad are: BAG (§ 740.14), which applies to personally owned items taken abroad for personal use while abroad; and TMP (§ 740.9), which applies to the temporary export of UTEP owned equipment (including laptop computers and other equipment listed on the CCL), for work related activities, such as professional presentations, teaching, and field research. It is important to note that there are limitations on the use of the TMP license exception. For instance, items must be returned to the U.S. within one year of export, or if not returned, documentation of disposal is required. Exceptions of items exported using the TMP license must be kept under the effective control of the traveler while abroad. Additionally, TMP is not applicable to some restricted locations, such as Cuba.
The Anti-Boycott provisions of the EAR were designed and implemented to address foreign governments’ boycott of countries friendly to the U.S. The provisions were first implemented in response to the Arab League Boycott of Israel. As of April 2021 (Federal Register announcement), Arab Countries including Iraq, Kuwait, Lebanon, Libya, Qatar, Saudi Arabia, Syria, and Yemen continue to impose boycott restrictions on Israel and companies that do business with Israel. Such companies are “blacklisted” under the boycott.
The anti-boycott provisions are found in 15 CFR § 760. The provisions apply to any person or entity in the U.S., as well as to U.S. persons or entities abroad. The anti-boycott provisions specifically prohibit the following activities:
Exceptions to these prohibitions exist but are limited. Additionally, U.S. persons asked to engage in the prohibited activities are required to report the request to BIS.
Under the International Traffic in Arms Regulations (ITAR), 22 CFR § 120-130, the U.S. Department of State Directorate of Defense Trade Controls (DDTC) administers the export and re-export of defense articles, defense services and related technical data from the United States to any foreign destination, or to any foreign person, whether located in the United States or abroad.
Section 121.1 of the ITAR contains the United States Munitions List (USML) and includes the commodities, related technical data, and defense services controlled for export purposes. The ITAR controls not only end items, such as radar and communications systems, as well as military encryption and associated equipment, but also the parts and components that are incorporated in the end item. Certain non-military items, such as commercial satellites, and certain chemical precursors, toxins, and biological agents, are also controlled.
The ITAR uses three (3) different terms to designate export-controlled items – defense articles, technical data, and defense services. With rare exceptions, if an item contains any components that are controlled under the ITAR, the entire item is controlled under the ITAR.
The USML designates certain categories and types of equipment as defense articles and associated technical data and defense services. The USML divides defense items into 21 categories. An electronic version of the USML is available on the U.S. Department of State – Munitions List website.
While DDTC has jurisdiction over deciding whether an item is ITAR or EAR controlled, it encourages exporters to self-classify the item. If doubt exists as to whether an article or service is covered by the USML, upon written request in the form of a Commodity Jurisdiction (CJ) request, DDTC will provide advice as to whether a particular article is a defense article subject to the ITAR, or a dual use item subject to U.S. Department of Commerce licensing.
Determinations are based on the origin of the technology (i.e., as a civil or military article), whether it is predominantly used in civil or military applications, and whether the technology/technical data is available in the public domain. University employees should contact the UTEP Export Control Officer when classifying an item. At UTEP, the Export Control Officer will assist with the submission of CJ requests, as well as with determination of any export licensing requirements.
Steps for requesting a Commodity Jurisdiction (CJ) are described in detail in the Authorization to Export section below:
An export as defined under the ITAR includes sending or taking a defense article out of the U.S., disclosing (including oral or visual disclosure) technical data to a foreign person whether in the U.S. or abroad, or performing a defense service on behalf of a foreign person whether in the U.S. or abroad (See 22 CFR § 120.17 for a complete listing of export meaning under the ITAR). This definition is extremely broad. It includes taking controlled technical data out of the U.S. on a laptop computer, regardless of whether or not that information is viewed or accessed while abroad. It also includes allowing a foreign person to view or use a defense article in the U.S. Most exports of defense articles and defense services must be licensed by DDTC.
Generally, any U.S. person or entity that manufactures, brokers, or exports defense articles or services must be registered with DDTC. Registration is a precondition to approval of any license application, and the registration number must be included on all correspondence and application forms. UTEP is not registered with this office.
Prior to export, defense articles and defense services require an export license, which will be issued by DDTC. The ECO will follow these procedures when preparing a license application:
All requested information must be provided by the PI to the ECO who will file for the license through the electronic filing process. Documentation of previous licenses to the same entity will be helpful, as are product literature (drawings, technical specs, brochures), and web links to information explaining the technology or supporting the item. Attachments and supporting technical data or brochures should be submitted in Word or PDF.
An exporter may apply for an export authorization by submitting a relatively simple license application for the export of defense articles or technical data; or a complex license application, usually in the form of a Technical Assistance Agreement (“TAA”). The TAA should be used for complex transactions that will require the U.S. entity to provide defense services. Most types of applications also contain additional certifications/transmittal letters, supporting documentation, and in some cases, non-transfer and use certification from the licensee and/or the foreign government of the licensee.
If a TAA is approved by DDTC (which can take an average of 6 months from the date of submittal), exports of technical data in furtherance of the agreement may be made without additional export licenses, so long as the data exported does not exceed the approved scope of the agreement (22 CFR 124.3). The TAA is not effective until approved by DDTC. If a TAA is approved, a copy signed by the U.S. and foreign parties must be filed with DDTC no later than 60 days after its effective date. If the TAA is not implemented by the parties, DDTC must be notified within 60 days of this decision (22 CFR 124.5). DDTC must be informed, in writing, of the impending termination of a TAA no less than 30 days prior to its expiration (22 CFR 124.6) . A Technical Assistance Agreement may only be amended with DDTC’s approval, unless the amendment only alters the delivery schedule and does not affect in any manner the duration of the agreement or the clauses or information which must be included in such agreement. One copy of all minor amendments must be submitted to DDTC within 30 days after they are concluded (22 CFR 124.1 (d)).
In general, no ITAR exports may be made either under license or license exemption, to countries proscribed in 22 CFR § 126.1, such as China, Cuba, Iran, North Korea, Sudan, and Syria. Additional restrictions apply to other countries. A complete list of U.S. arms embargoes is available online at: Country Policies - DDTC Public Portal (state.gov)
The U.S. Department of Treasury, Office of Foreign Assets Control (OFAC) administers and enforces economic and trade sanctions. These sanctions are based on U.S. foreign policy and national security goals against targeted foreign countries and regimes, terrorists, international narcotics traffickers, those engaged in activities related to the proliferation of weapons of mass destruction, and other threats to the national security, foreign policy or economy of the United States, as set forth in 31 CFR § 500-599. OFAC enforces trade, anti-terrorism, narcotics, human rights, and other national security and foreign policy-based sanctions prohibiting the provision of anything of value, either tangible or intangible, to sanctioned countries, organizations, or individuals. The pertinent regulations provide OFAC with broad authority to block or interdict vaguely defined “prohibited transactions” involving restricted destinations or parties. A complete list of Sanctions Programs and Country Information can be found in the U.S. Department of Treasury online Resource Center.
While most sanctions are administered by OFAC, BIS has jurisdiction over certain exports prohibitions (via “embargo” regulations), as is the case with exports to Syria. In other words, a license from BIS would be required to ship most items to Syria and other OFAC-sanctioned countries or could be prohibited. Economic sanctions and embargo programs are country-specific and very detailed in the specific prohibitions.
Various U.S. Government agencies maintain a number of lists of individuals or entities barred or otherwise restricted from entering into certain types of transactions with U.S. persons. Particularly since 9/11, U.S. companies have become more assertive in attempting to place contractual terms with foreign companies related to these lists. Such lists must be screened to ensure that the university does not engage in a transaction with a barred entity. UTEP, under a UT system-wide license, uses Visual Compliance Software to expedite screening of these and other lists.
It is important to review the specific sanctions program before conducting activities with an OFAC-sanctioned entity or person, or in an OFAC-sanctioned country. The individual sanctions specifically describe what activities are exempt (personal communications, exchange of informational materials, etc.) from the embargo, as well as what activities may be permitted under an applicable license. Activities which are permitted under a general license do not require specific permission from OFAC prior to engaging in the activity; however, the conditions of a general license must be carefully reviewed, and the use of the general license documented. Activities that do not fall under an available general license may be eligible for a specific license from OFAC. Specific license requests must be submitted and approved by OFAC prior to engaging in the sanctioned activity. Activities conducted under both general and specific licenses are subject to OFAC audit, and records must be maintained for five years after the conclusion of the activity. At UTEP, the Office of Compliance and Regulatory Assurance should be contacted when considering any proposed OFAC-sanctioned activities.
There are many other export control regulations applicable to the university. The Nuclear Regulatory Commission has regulations for nuclear materials and reactors. The Department of Energy has regulations for assistance with foreign nuclear activities. The Department of Defense has regulations to safeguard classified information. When an export control issue arises, as described below, UTEP’s Export Control Program will analyze all applicable regulations to come up with an individual management plan for a given situation.
Last Revision May 16, 2025