Export Compliance: What Does and Does Not Require Export Review, and Who Controls Which Exports?
 

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Types of Situations That Are An "Export"

What Requires Export Review?

It is important to know that exporting is not limited to simply transferring a document or piece of equipment to a foreign national. The range of activities that could potentially pose export-control concerns is quite broad. Examples include:

  • Disclosure of export-controlled technology including hardware, software, or technical data to a non-U.S. national, by physical, electronic, oral, or visual means, either within or outside of the U.S. (disclosures to U.S. nationals representing foreign interests are not exports unless there is knowledge or reason to know that the technical data will be further disclosed to a foreign party);
  • Providing export-controlled items with the knowledge or intent that the items will be shipped, transferred, or transmitted outside of the U.S.;
  • Export of ANY item (whether it is export-controlled or not) to a sanctioned country, e.g., Cuba, Iran, North Korea, Sudan, Syria, or other sanctioned country;
  • Any transfer of export-controlled technology to a foreign embassy, consulate, or affiliate; Donation, sale, or transfer of export-controlled surplus equipment; International and domestic collaborations and technical exchange programs that may involve export-controlled topics; Written materials containing export-controlled information, e.g., publications, technical reports, memos, letters, trip reports, work notes, etc.; Presentation of possible export-controlled topics at domestic and foreign conferences and other public meetings; Visits and assignments by non-U.S. nationals to facilities where export-controlled activities take place when the visit/assignment is not related to a public presentation or public tour; Foreign travel by Smithsonian employees or affiliated persons when the purpose is related to possible export-controlled projects; Specifications that are export controlled which are included in proposals to a sponsor or Requests For Quotations/Proposals that will be viewed by non-U.S. persons; and Placement of export-controlled material on the internet, intranet, shared drives, or collaborative sites.

What Does NOT Require Export Review?

  • Technical data that is not export-controlled, i.e., fundamental research and information in the public domain;
  • Copyrighted material;
  • Fundamental Research, per the International Traffic in Arms Regulations (ITAR) or Export Administration Regulations (EAR), as described below;
  • Information or an item of an export-controlled nature that is not of U.S. origin AND is not in the U.S. AND was not exported by the Smithsonian to the foreign location;
  • Information that is considered to be in the public domain, per the ITAR, as described below; or
  • Publicly available under the EAR.

Fundamental Research is defined to mean basic and applied research in science and engineering where the resulting information is ordinarily published and shared broadly within the scientific community, as distinguished from research the results of which are restricted for proprietary reasons or by specific U.S. Government access and dissemination controls, e.g., export control. Public Domain is data that is NOT controlled under the ITAR or EAR because its intent is to be published and is generally accessible to the public in the following ways:

  • Through sales at newsstands and bookstores;
  • Through subscriptions that are available without restriction to any individual who desires to obtain or purchase the published information;
  • Through second class mailing privileges granted by the U.S. Government;
  • At libraries open to the public or from which the public can obtain documents;
  • Through patents available at any patent office;
  • Through unlimited distribution at a conference, meeting, seminar, trade show or exhibition, generally accessible to the public, in the United States;
  • Through public release (i.e., unlimited distribution) in any form (e.g., not necessarily in published form) after approval by the cognizant U.S. Government sponsor;
  • Through fundamental research in science and engineering at accredited institutions of higher learning in the U.S. where the resulting information is ordinarily published and shared broadly in the scientific community. The Smithsonian has received written notice that our activities qualify as that of an "institution of higher learning" for export-control purposes.

NOTE: The EAR does not control information published on the internet, with the exception of encryption.

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Research Exemptions

Technical Data That Is NOT Controlled - Fundamental research and public domain

Fundamental research is defined to mean basic and applied research in science and engineering where the resulting information is ordinarily published and shared broadly within the scientific community, as distinguished from research the results of which are restricted for proprietary reasons or specific U.S. Government access and dissemination controls.

Data that is NOT controlled under the ITAR because its intent is to be published and is generally accessible to the public:

  1. Through sales at newsstands and bookstores;
  2. Through subscriptions which are available without restriction to any individual who desires to obtain or purchase the published information;
  3. Through second class mailing privileges granted by the U.S. Government;
  4. At libraries open to the public or from which the public can obtain documents;
  5. Through patents available at any patent office;
  6. Through unlimited distribution at a conference, meeting, seminar, trade show or exhibition, generally accessible to the public, in the United States;
  7. Through public release (i.e., unlimited distribution) in any form (e.g., not necessarily in published form) after approval by the cognizant U.S. Government department or agency (see also § 125.4(b)(13) of this subchapter);
  8. Through fundamental research in science and engineering at accredited institutions of higher learning in the U.S. where the resulting information is ordinarily published and shared broadly in the scientific community.

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Exemption for Collaboration with Non-US Persons at Institutions of Higher Learning

We may collaborate with institutions of higher learning about space research under an ITAR exemption as follows:

125.4 of the ITAR
(10) Disclosures of unclassified technical data in the U.S. by U.S. institutions of higher learning to foreign persons who are their bona fide and full time regular employees. This exemption is available only if:

  • (i) The employee's permanent abode throughout the period of employment is in the United States;
  • (ii) The employee is not a national of a country to which exports are prohibited pursuant to § 126.1 of this subchapter; and
  • (iii) The institution informs the individual in writing that the technical data may not be transferred to other foreign persons without the prior written approval of the Directorate of Defense Trade Controls.

NOTE: The Smithsonian has received written notice that our activities qualify as that of an "institution of higher learning" for export-control purposes.

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NASA Exemptions

EXEMPTION FOR NASA IMPLEMENTING AN INTERNATIONAL AGREEMENT, 125.4 of the ITAR
(11) Technical data, including classified information, for which the exporter, pursuant to an arrangement with the Department of Defense, Department of Energy or NASA which requires such exports, has been granted an exemption in writing from the licensing provisions of this part by the Directorate of Defense Trade Controls. Such an exemption will normally be granted only if the arrangement directly implements an international agreement to which the United States is a party and if multiple exports are contemplated. The Directorate of Defense Trade Controls, in consultation with the relevant U.S. Government agencies, will determine whether the interests of the United States Government are best served by expediting exports under an arrangement through an exemption (see also paragraph (b)(3) of this section for a related exemption);

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If you have further questions, please contact the Export Compliance Officer.

 
 

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