Research Export Control Regulations
Definitions and Frequently Asked Questions

Current federal laws and regulations control the conditions under which certain information, technologies, and commodities can be transmitted overseas to anyone, including U.S. citizens, or to a foreign national on U.S. soil. The following information is intended to help clarify definitions and some of the most frequently asked questions regarding export controls.

The federal laws forming the basis for these controls are administered via regulations in three main agencies and are universally discussed via acronyms:

  • ITAR: International Traffic in Arms Regulations (U.S. Department of State)
  • EAR: Export Administration Regulations (U.S. Department of Commerce)
  • OFAC: Office of Foreign Asset Control (U.S. Treasury Department)
  1. Definition of Key Terms
    University employees need to exercise caution and understanding of three basic concepts related to export controls that are essential: (1) the nature of the technology that is export controlled and how it is recognized; (2) the fundamental research exclusion; and (3) the definition of a deemed export.

    Export control decisions rely on the proper understanding of the following terms:

    • Export: the term export as used in export control regulations has an expansive meaning. Generally, an export can include: (1) shipment or transmission of covered goods or items outside of the U.S.; (2) disclosure or release, including verbal disclosure or visual inspections of covered technology, software or technical data to a foreign national anywhere (a “deemed export” to the home country of the foreign person); or (3) performing a “defense service” for the benefit or on behalf of a foreign person anywhere. The official definition of export under the EAR and ITAR should be consulted to determine whether or not a specific act constitutes an export.

      The vast majority of exports do not require government licenses. Only exports that the U.S. government considers “license controlled” under EAR or ITAR require licenses. Export controlled transfers usually arise for one or more of the following reasons, and in certain cases (but not all cases) these require a license:

      • Actual or potential military applications or economic protection issues associated with the nature of the export;
      • Government concerns about the destination country, organization or individual; and
      • Government concerns about the declared or suspected end use or the end user of the export.

    • Deemed Export: an export of technology or source code is “deemed” to take place when it is released to a foreign national within the U.S. Release of the technology can occur through conversation, training, in writing and includes plans and blueprints. Even a disclosure to a foreign researcher or student in an FAU laboratory may be considered a “deemed export.”

    • No License Required (NLR): most exports from the U.S. do not require a license, and are therefore exported under the designation “NLR”, with the exception in those relatively few transactions when a license requirement applies because the destination is subject to embargo or because of a proliferation end-use or end-user.

    • Fundamental Research: fundamental research includes basic or applied research in science and engineering at an accredited institution of higher education in the U.S. where resulting information is normally shared broadly in the scientific community and has or will be published. It should be noted that the fundamental research exemption applies only to technical data. The exemption does not protect the export of equipment such as certain types of software or prototypes. The regulations do not apply to publicly available technology or software. University research is not considered “fundamental research” under the following circumstances:

      • The institution of higher education places restrictions on publishing research results for any reason. Any written or oral verbal commitment made by a researcher to a sponsor, collaborator or subcontractor that limits access to information or requires prior written approval to publish may create a need for the researcher to comply with export regulations and laws. There are also cases arising from military contracts in which no exceptions or exemptions are allowed for national security reasons. This can fall under national security classification regulations in addition to export control;
      • The research is federally funded and control of or access to the research results have been contractually accepted by the institution of higher education and;
      • The research forbids the participation of foreign persons.

    • Technology: technology as defined in EAR 772.1 is “the specific information necessary for the development, production, or use of a product” and by ITAR 120.10 is the “information required for design, development, production, manufacture, assembly, operation, repair, testing, maintenance or modification of a controlled article.”

    • Foreign Person or Foreign National: any person present in a country who does not currently have the legal right to permanent residency of that country (that is, documented permanent residents—individuals holding “green cards”—are not considered to fall in these categories). This may include scholars, students, researchers, technical experts, diplomats, etc. Foreign persons also means any corporation, business association, partnership, society or other entity that is not organized or incorporated to do business in the U.S., as well as international organizations, foreign governments and any agency or subdivision of foreign governments.

    • U.S. Person: any U.S. citizen or lawful permanent resident (“green card” holder) or any foreign corporation, society or other group that is incorporated or organized to do business in the U.S., and any federal, state or local government in the U.S.

    • Full-time Bona Fide U.S. Higher Education Employee Information Exemption: a license is not required to share controlled technical information with a foreign person who is: (1) a full-time, bona fide university employee; (2) has a permanent U.S. address while employed; (3) is not a national of certain restricted countries; and (4) has been advised in writing not to share controlled information with other persons. This exemption does not apply to students with F-1 visas, others with visas that only allow part-time work, non-employee collaborators, or to nationals of ITAR prohibited/embargoed countries.

    • Restricted Countries: there are certain countries where it is the policy of the U.S. to generally deny licenses for the transfer of the aforementioned items. The list of these countries is somewhat fluid, and the most current version at the ITAR web site needs to be consulted frequently.

  2. Frequently Asked Questions (see in particular #s 5 & 6)

    1. What is an export?
      The export regulations define an export as:

      • Any oral, written, electronic or visual disclosure, shipment, transfer or transmission outside the United States to anyone, including a U.S. citizen, of any commodity, technology (information, technical data, or assistance) or software codes;
      • any oral, written, electronic or visual disclosure, transfer or transmission to any person or entity of a controlled commodity, technology or software/codes with an intent to transfer it to a non-U.S. entity or individual, regardless of location (even to a foreign student or colleague at FAU); and
      • any transfer of the items or information above to a foreign embassy or affiliate.
      • It is important to note that only exports for which the U.S. government requires a license are those that are listed on the export-controlled lists. The vast majority of exports do not require the prior approval of the U.S. government.

    2. What is a “deemed” export?
      An export of technology or source code is “deemed” to take place when it is released to a foreign national within the U.S. Release of the technology can occur through conversation, training, in writing and includes plans and blueprints. When an item is “controlled”, a license (the appropriate documentation and permission from the cognizant agency) may be required before the technology can be exported.

    3. Who controls exports?
      There are three government agencies that control exports:

      • ITAR – International Traffic in Arms Regulations of the United States Department of State which controls the export of “defense articles and defense services.”
      • EAR – Export Administration Regulations of the United States Department of Commerce.
      • OFAC – Office of Foreign Assets Control of the United States Department of Treasury administers and enforces economic and trade sanctions based on U.S. foreign policy and national security goals against targeted foreign countries, terrorists, and those engaged in activities related to the proliferation of weapons of mass destruction.

    4. Are there exemptions or exclusions regarding export controls?
      Yes. Export control laws do not have an impact on all university research because of the existence of several important exclusions or exemptions:

      • Information that is readily available and accessible to the public is not subject to export control laws. The terms “publicly available” and “public domain” are used by EAR and ITAR respectively;
      • For academic or research institutions, there is a qualified exclusion for fundamental research, defined as basic and applied research in science and engineering, the results of which ordinarily are published and shared broadly within the scientific community; and
      • Education information is another category of publicly available information that is exempt from export control laws. This includes the disclosure of general engineering, scientific and mathematical information that is commonly taught in institutions of higher education.

      Clearly, much of the research done at FAU falls under one of these exemptions, and the university can and should assert them.

    5. What is fundamental research?
      Fundamental research, as used in the export control regulations, includes basic or applied research in science and/or engineering at an accredited institution of higher education in the U.S. where the resulting information is ordinarily published and shared broadly in the scientific community or where the resulting information has been or is about to be published.

    6. Is all university research considered “fundamental” research?
      No. University research will not be deemed to qualify as fundamental research if:

      • The university or research institution accepts any restrictions on the publication of information resulting from the research, other than limited prepublication reviews by research sponsors to prevent inadvertently divulging proprietary information provided to the researcher by the sponsor; or
      • The research is federally funded and specific access or dissemination controls regarding the resulting information have been accepted by the university or the researcher.

    7. How can export controls affect my research?
      “Export” is defined not only as a physical transfer/disclosure of an item outside of the U.S., but also as a transfer/disclosure in any form of a controlled item or information within the U.S. to anyone who is a “foreign national” (not a U.S. citizen or permanent resident). This is the “deemed export” rule.

      In addition to affecting who may participate in the research project on campus, the following are examples of situations in which a license may be required:

      • Presentation/discussion of previously unpublished research at conferences and meetings where foreign national scholars may be in attendance;
      • Research collaborations with foreign nationals and technical exchange programs;
      • Transfers of research equipment abroad; and
      • Visits to your lab by foreign students and/or scholars

    8. What kinds of projects raise export control issues?
      Generally, any research activity may be subject to export controls if it involves the actual export or “deemed” export of any goods, technology or related technical data that is either (1) “dual use” (commercial in nature with possible military application or (2) inherently military in nature. Work in the following areas is considered high risk:

      • Engineering
      • Space sciences
      • Computer science
      • Biomedical research with lasers
      • Research with encrypted software
      • Research with controlled chemicals, biological agents and toxins

      Furthermore, any of the following will raise export control questions for your project or research:

      • Sponsor restrictions on the participation of foreign nationals in the research;
      • Sponsor restrictions on the publication or disclosure of the research results;
      • Indications from the sponsor or others that export controlled information or technology will be furnished for use in the research; and
      • The physical export of controlled goods or technology is expected

    9. What is considered published information as discussed in question #4 in this document?
      The EAR and ITAR approach the issue of publication differently. The EAR requirement is that the information has been or is about to be published. The ITAR requirement is that the information has been published. Information becomes “published” or considered “ordinarily published” when it is generally accessible to the interested parties in a variety of ways. This includes, for example, in periodicals, books, print, electronic or any other media available for general distribution to any member of the public or to those who would be interested in the material in a scientific or engineering discipline. Published or ordinarily published materials also include the following: readily available at libraries open to the public; issued patents; and, releases at an open conference, meeting, seminar, trade show or other open gathering. A conference is considered “open” if all technically qualified members of the public are eligible to attend and attendees are permitted to take notes or otherwise make a personal record of the proceedings and presentations.

    10. What is public domain and why is it important?
      Public domain is the term used for “information that is published and generally accessible or available to the public” through a variety of mechanisms. Publicly available software or technology is that which already is, or will be published. To fall under this exclusion, there are a number of conditions that demonstrate public availability which are enumerated in the EAR.

    11. How can I get a listing of the EAR, ITAR and OFAC sanctioned countries, including the critical technology list?
      The Division of Research has licensed the rights to access and utilize e-Customs—a full export and import management system and database for export control compliance. For more information or to access this database, please contact the Division of Research. Someone will assist you in determining if your research contract or grant falls under the terms of any of the export compliance regulations, and if necessary, will work with legal counsel and the sponsor to negotiate the removal or modification of the provisions in the contract or grant that impact FAU's exemption from export control regulation.

    12. Why should I be concerned with export control compliance?
      Individuals who violate export regulations are subject to civil and criminal sanctions (including fines and/or prison sentences for individuals) and universities and research institutions are subject to administrative sanctions (monetary fines and loss of research funding and export privileges). The International Emergency Economic Powers Enhancement Act of 2007 has provisions which increase civil penalties for violations of the EAR from $50,000 per violation to the greater of $250,000 or twice the amount of the transaction. The new law also increases criminal penalties for individuals from $50,000 and 10 years imprisonment to $1 million and 20 years imprisonment.

    13. If a license is needed, what is the process?
      Florida Atlantic University researchers and contract administrators have primary responsibility to identify which projects may prompt EAR and ITAR restrictions. The Division of Research will work with you to ensure compliance with export control regulations. If it is determined that an export control license is required, the Division of Research will work with legal counsel to proceed with the application process. It is important to mention that an export license is not guaranteed and may require expenditure of time and financial resources. Furthermore, seeking a license from the relevant federal department or even requesting commodity jurisdiction and/or an advisory opinion can take as long as six months after the initial contact with Washington.

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 Last Modified 11/16/12