License Determinations

Once the classification has been determined, and provided that the activity is not excluded from the regulations, it must be determined if a license is required, or whether there is a license exception that can be used. Under the ITAR, there are generally two ways to export an item, transfer technical data, or provide a defense service: under a license or under an exemption. Under the EAR, an item or technology can be exported under a license, under a license exception, or No License Required (“NLR”).

If a project is export controlled and a license is needed to involve a foreign national, the Empowered Official may apply for an export license to allow the disclosure of information to foreign students and researchers. Note that each foreign student must be specifically licensed for each controlled project. Also note that a Technology Control Plan (“TCP”) must be implemented. The ECO in coordination with the ORSP will prepare the necessary documentation for obtaining a license.

ITAR Licenses

Generally, any U.S. person or entity that manufactures, brokers, or exports defense articles or services must be registered with DDTC for an ITAR related export. Registration is required prior to applying for a license or taking advantage of most license exemptions. Once registration is complete, an exporter may apply for an authorization to export by submitting a license application for the export of defense articles or technical data; or a more complex application, such as a Technical Assistance Agreement (“TAA”). Once a license has been issued, OHIO must adhere to all limitations and provisos contained in the license. Documentation regarding compliance with license provisions must be kept according to the University’s document retention schedule and any deviations during execution of the license must be authorized in advance by the U.S. government in coordination with the ECO and ORSP.

U.S. law requires prior DDTC approval for the following transfers of ITAR-controlled items:

  • Export of defense articles (Form DSP-5) 3;
  • Export of technical data for marketing and visits by foreign persons (Form DSP-5);
  • Export of Defense Services and technical data (Manufacturing License Agreements, Technical Assistance Agreements);
  • Temporary import for repair/modification (DSP-61 for other than routine transactions; routine shipments may require special import procedures);
  • Classified defense articles/technical data (Form DSP-85);
  • Minor amendments to licenses (Form DSP-119);
  • Temporary export for marketing demonstrations (Form DSP-73);
  • Re-export Authorizations (Submit on letterhead as “General Correspondence”).

ITAR Exemptions

There are numerous license exemptions authorized under various parts of the ITAR. These exemptions can be complicated, construed narrowly, require specific record keeping and must be approved by the ECO prior to use.

Full-Time University Employees

Under ITAR § 125.4(b)(10), the ITAR allows OHIO to disclose unclassified technical data as defined in ITAR 120.10(5) in the U.S. to a foreign person who is the university’s bona fide and full time regular employee. The exemption is available only if:

  1. The foreign national is the University’s bona fide full-time regular employee,
  2. The employee’s permanent abode throughout the period of employment is in the U.S.,
  3. The employee is not a national of an embargoed country, and
  4. The University informs the employee in writing that information disclosed may not be disclosed to other foreign nationals without governmental approval.

EAR Licenses and Exceptions

If an item is listed on the CCL, it may require a license, or a license exception may be available. Items not listed on the CCL and designated as EAR99, can generally be exported without a license, unless the export is to an embargoed country, or to a prohibited person or end-use. There is a three-step process for determining what controls apply, to which country, and whether a license exception may be available.

Step 1: Determine Reason for Controls. The "License Requirements" section provides reasons for control. These reasons include:

  • AT - Anti-Terrorism
  • CB - Chemical & Biological Weapons
  • CC - Crime Control
  • CW - Chemical Weapons Convention
  • EI - Encryption Items
  • FC - Firearms Convention
  • MT - Missile Technology
  • NS - National Security
  • NP - Nuclear Nonproliferation
  • RS - Regional Security
  • SS - Short Supply
  • XP - Computers SI Significant Items

Step 2: Apply Country Chart. Once an item is identified as meeting the criteria for a particular ECCN, the user should refer to the Country Chart found at 15 C.F.R. § 738, Supp. 1. If the particular control applies to that country, a license is required. For example, Iran has an “X” under AT Column 1, therefore a license would be required unless an exception applies.

Step 3: Identify Exceptions. The EAR contains several 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. These exceptions include:

  • LVS - Items of limited value (value is set under each ECCN).
  • GBS - Items controlled for national security reasons to Group B countries.
  • CIV - Items controlled for national security reasons to particular countries where enduser is civilian
  • TSR - Certain technology and software to certain countries.
  • APP - Computer exports to certain countries.
  • STA - Strategic Trade Authorization.
  • TMP - Certain temporary exports, re-exports, or imports, including items moving through the U.S. in transit.
  • RPL - Certain repair and replacement parts for items already exported.
  • GFT - Certain gifts and humanitarian donations.
  • GOV - Exports to certain government entities.
  • TSU - Certain mass-market technology and software.
  • BAG - Baggage exception.
  • AVS - Aircraft and vessels stopping in the U.S. and most exports of spare parts associated with aircraft and vessels.
  • APR - Allows re-export from certain countries.
  • ENC - Certain encryption devices and software.
  • AGR - Agricultural commodities.
  • CCD - Authorization of certain consumer communication devices to Cuba.

Use of EAR exceptions must be reviewed by the ECO or a designated member of the ECC.