The International Traffic in Arms Regulations (ITAR) and the Export Administration Regulation (EAR) are two important United States export control laws that affect the manufacturing,
sales and distribution of technology.
These regulations seek to control access to specific types of technology and associated
data. The overarching goal of these regulations and associated legislation is to
prevent the disclosure or transfer of sensitive information to a foreign national.
ITAR contains a United States Munitions List (USML) of restricted articles and services.
EAR contains a Commerce Control List (CCL) of regulated commercial items, including
those items that have both military and commercial applications.
New Mexico Tech’s efforts to comply with the ITAR and EAR are detailed below. It
is a framework for NMT employees engaged in development, research, testing, evaluation,
use and possible export of technology that is beyond Fundamental Research. This page
is intended to provide a basic understanding of export control regulations
The aim of NMT’s Export Compliance Program is to achieve and sustain an exceptional program of compliance with export laws,
regulations, codes and statues, by all University’ activities and to implement this
program in the most “business friendly” manner possible.
Overview of Export Laws and Regulations
The United States export laws and regulations operate to restrict the use of and access
to controlled information, goods, and technology for reasons of national security
or protection of trade. The export control regulations are not new. Federal regulations
restricting the export of goods and technology out of the country have been around
since the 1940’s. However, in recent years, attention to export control compliance
has increased because of heightened concerns about homeland security, the proliferation
of weapons of mass destruction, terrorism, drug trafficking, and leaks of U.S. technology
to foreign competitors.
For assistance with this process and with obtaining an export license if necessary,
please contact the New Mexico Tech's Office of Research Compliance. The process of obtaining an export license from the government can be lengthy, so
please plan accordingly.
New Mexico Tech has a subscription to Collaborative Institutional Training Initiative
(CITI). There are various trainings available including export control. Please visit
the Responsible & Ethical Conduct of Research site. If you do not have account please register for an account under New Mexico
Institute of Mining and Technology. The Export Compliance courses available have various
modules that are applicable depending on your role and what type of research you are
doing.
General Regulations
In general, the export control regulations cover four main types of University activities:
Transfers of controlled information, including technical data, to persons and entities outside the United States;
Shipment of controlled physical items, such as scientific equipment, from the United States to a foreign country;
Verbal, written, electronic, or visual disclosures of controlled scientific and technical
information related to export-controlled items to foreign nationals in the United States. Such
a transfer is termed a "deemed export" and is regulated because the transfer is "deemed" to be to the country where the person is a resident or a citizen;
Travel to certain sanctioned or embargoed countries for purposes of teaching or performing research.
Is A Government License Necessary?
Under the export control regulations, the export of certain goods and technology may
be prohibited or a government license may be required to proceed with the export.
While most exports do not require government licenses, licenses are required for exports
that the U.S. government considers "controlled" under:
International Trade Administration U.S. Department of Commerce (EAR) - (also known as the Commerce Control List). The EAR is concerned with dual-use items,
such as computers or pathogens, that are designed for commercial use, but have the
potential for military application.
The Treasury Department's Office of Foreign Assets Control (OFAC) Regulations OFAC administers and enforces economic and trade sanctions that have
been imposed against specific countries based on reasons of foreign policy, national
security, or international agreements. A list of all countries currently subject to
boycott programs is also available on the OFAC website.
Fundamental Research & Public Domain Exclusions
Because the New Mexico Tech embraces the concepts of academic freedom and open publication
and dissemination of research findings and results, the export control regulations
present unique challenges. Fortunately, both the EAR and the ITAR exclude fundamental
research from the requirements of the regulations. Fundamental Research is defined
as "...basic and applied research in science and engineering, the results of which
ordinarily are published and shared broadly within the scientific community, as distinguished
from proprietary research and from Industrial development, design, production, and
product utilization, the results of which ordinarily are restricted for proprietary
or national security reason.” [National Security Decision Directive (NSDD) 189, National Policy on the Transfer of
Scientific, Technical, and Engineering Information]
Information which is publicly available also is excluded from the purview of the export
control regulations. To guarantee the application of these exclusions, researchers
should publish their findings to the fullest extent possible and should not agree
to confidentiality clauses or other terms that restrict the dissemination of research
materials and results.
The fundamental research and public domain exclusions do not apply to tangible items
that are being taken or shipped outside of the U.S. In such cases, those items must
be analyzed to determine whether they are subject to export controls.
Federal funding agencies are prohibited from issuing funding to faculty engaged in
a malign foreign talent recruitment program. As such, the university prohibits participation
in a malign foreign talent recruitment for all employees.
Malign foreign talent recruitment programs were defined by Congress in the CHIPS and Science Act of 2022. Malign foreign talent recruitment programsare programs, positions or activities sponsored by a country of concern* or by certain
academic institutions. They include one or more of the following indicators:
Engagement in the unauthorized transfer of intellectual property or other nonpublic
information.
Recruiting trainees or researchers to enroll in such program, position, or activity.
Establishment of a laboratory, employment or appointment in a foreign country in violation
of the terms and conditions of a U.S. federally funded research award.
Inability to terminate program contract or agreement.
Overcapacity, overlap or duplication.
Research funding from the foreign institution’s government.
Omission of U.S. home institution and/or funding agency acknowledgement.
Nondisclosure of program participation.
Conflict of interest and/orconflict of commitment.
Federal Stipulations & Guidelines
United States Office of the President's Guidelines for Federal Research Agencies Regarding
Foreign Talent Recruitment Programs:
An academic institution on the list developed under section 1286(c)(8) of the John
S. McCain National Defense Authorization Act for Fiscal Year 2019 (10 U.S.C. 2358
note; Public Law 115-232); or
A foreign talent recruitment program on the list developed under section 1286(c)(9)
of the John S. McCain National Defense Authorization Act for Fiscal Year 2019 (10
U.S.C. 2358 note; Public Law 115-232).
