What is an “export”?
An export occurs whenever any item (commodity, software, technology, or equipment) or information is sent from the U.S. to a foreign destination or provided to a foreign national in the U.S. or abroad. The manner in which the transfer or release of the item or information occurs does not matter.
What is a “deemed export”?
A deemed export refers to the release, transfer or transmission of information or technology to any foreign national in the U.S. A deemed export is treated as an export to that person’s country of citizenship.
What are “export controls”?
Export controls refer to the federal regulations governing the export of materials, data, technical information, services, and financial transactions to foreign countries based on U.S. security interests.
Who qualifies as a “foreign national” or “foreign person”?
A foreign national is defined as any natural person who is not a U.S. citizen, is not a lawful permanent resident of the U.S. (i.e., does not have a green card), or who does not have refugee or asylum status.
What are the “Export Administration Regulations” (EAR)?
The Export Administration Regulations
govern the export of most items in the U.S., especially dual-use items as enumerated on the Commerce Control List (CCL). The EAR is administered by the Bureau of Industry and Security (BIS) under the U.S. Department of Commerce
What is a “dual-use” item?
A dual-use item is any item that can potentially have a military application as well as a commercial or civilian purpose (e.g., GPS units).
What is an “Export Control Classification Number” (ECCN)?
An Export Control Classification Number (ECCN) is an alpha-numeric code used to categorize items that are subject to the EAR into one of the ten categories and five product groups within the Commerce Control List (CCL).
What is an “EAR99” classification?
EAR99 is the general “catch-all” classification number assigned to any item that is subject to the EAR but that does not have a specific Export Control Classification Number (ECCN) listed in the Commerce Control List (CCL). The vast majority of U.S. origin goods are classified as EAR99, and under most circumstances, do not require a license for export.
What are the “International Traffic in Arms Regulations” (ITAR)?
The International Traffic in Arms Regulations govern all military, weapons, and space related items and services as enumerated on the U.S. Munitions List (USML). The ITAR is administered by the Directorate of Defense Trade Controls (DDTC) under the U.S. Department of State.
What is the “Office of Foreign Assets Control” (OFAC)?
The Office of Foreign Assets Control is responsible for enforcing the foreign policy of the U.S. government, including all trade sanctions, embargoes, and financial interactions with prohibited or blocked individuals or entities. The OFAC is administered by the U.S. Department of the Treasury.
How do I know if export controls apply to a grant or contract?
Export controls only apply to grants or contracts that involve technology listed in either the Commerce Control List (EAR) or the U.S. Munitions List (ITAR) and:
- The research does not qualify for an exclusion; or
- There are physical exports; or
- There is foreign travel with controlled equipment, or travel to a sanctioned country; or
- Specific controls are agreed on to protect information resulting from the research including access, publication, or participation restrictions; or
- Defense articles or associated technical information are used in the research.
Are there any exclusions from export controls?
There are three exclusions that may remove Florida Atlantic University research from the application of export control restrictions. These exclusions include; (1) the Fundamental Research Exclusion (FRE); (2) the Publicly Available/Public Domain Exclusion; and, (3) the Educational Information Exclusion.
What is the “Fundamental Research Exclusion” (FRE)?
Basic and applied research in science and engineering performed by institutions of higher education in the U.S. is not subject to export control laws and regulations as long as the research is carried out openly and without restrictions on publication or access to, or dissemination of, the research results. Fundamental research is distinguished from proprietary research and from industrial development, design, production and product utilization because the results of the latter are restricted for proprietary or national security reasons. The EAR and the ITAR differ on what is considered published information. The EAR requires that the information "has been", "is about to be", or "is ordinarily published". The ITAR requires that the information has already been published in order to qualify for the Fundamental Research Exclusion.
What is the “Publicly Available/Public Domain Exclusion”?
The sharing of technical data or information with a foreign national inside the U.S. as a part of a class, laboratory, or conference and/or seminar, is not subject to export control laws and regulations as long as if the same technical data or information has already been widely published or is accessible or available to the public without restriction.
What is the “Educational Information Exclusion”?
Information that is commonly taught in catalog-courses at an accredited U.S. institution of higher-education, or its related teaching laboratories, is not subject to export control laws and regulations. The Educational Information Exclusion does not apply to proprietary information and certain information deemed classified or sensitive by the federal government.
What is not considered “fundamental research”?
TIt is not considered fundamental research when there are restrictions placed on the outcome of the research or restrictions on methods used during the research. Proprietary research, industrial development, design, production, and product utilization the results of which are restricted and government funded research that specifically restricts the outcome for national security reasons are not considered fundamental research.
Can I ship items overseas that were developed as part of my fundamental research?
Not necessarily. While research results developed or generated under the Fundamental Research Exclusion are exempt from export controls and can be freely shared with foreign nationals both here and abroad, any materials, items, technology or software generated as a result of the research are not exempt from export controls.
Before shipping or taking any item abroad, an export control determination needs to be made to ascertain if an export license is required to take or transfer the item.
Are commercially-available items free from export control licensing requirements?
In most cases, low-end items that are commercially available do not require export licenses. There are exceptions to this including items containing strong encryption technology or software (e.g., laptop computers, web-enabled cell phones), items that have dual-use applications (e.g., high-end GPS units), or that are restricted under other regulations or sanctions.
What is an “export license”?
An export license is a written authorization provided by the federal government granting permission for the release or transfer of export controlled information or item under a defined set of conditions
How do I apply for an export license?
If it is determined that the activity requires an export license, contact the Export Control Officer at firstname.lastname@example.org
. The Export Control Officer will work with you and the General Counsel to submit a license request to the appropriate regulatory body on your behalf.
Obtaining an export license can take 3-6 months and there is no guarantee that a license will be granted.
How are foreign nationals with dual-citizenship recognized under the Export Administration Regulations (EAR)?
The Export Administration Regulations recognizes an individual’s most recent country of citizenship or permanent residency as their home country for licensing requirements.
What if I cannot determine an individual’s most recent citizenship or residency?
If you cannot determine the status of a foreign national, you should seek an advisory opinion from the Bureau of Industry and Security (BIS)
Does a foreign national employee, researcher, or student need a deemed export license to operate export controlled equipment?
Not necessarily. Keep in mind that the deemed export rule does not regulate the operation of controlled equipment. Rather, it is a release to a foreign national of export-controlled “use” technology that may have deemed export licensing implications, and “use” technology includes all of the attributes of “use” as defined in 15 CFR 772
(i.e., operation, installation, maintenance, repair, refurbishing, and overhaul. If the foreign national has access only to the technology that is necessary to operate the export controlled equipment, a release of “use” technology has not occurred and no deemed export license requirement is triggered.
Is there a deemed export license requirement for EAR99 technology?
Under the EAR, releases of EAR99 technology to Cuban nationals require a deemed export license. See 15 CFR 746.2.
Releases of EAR99 technology to certain persons described in 15 CFR 744
of the EAR including, but not limited to, “Specially Designated Global Terrorist” require a deemed export license. See 15 CFR 744.12.
Do I need authorization for a foreign graduate student to work in my laboratory?
You do not need an export control license for the mere presence of a foreign graduate student in your laboratory. You do need a license if you plan to transfer controlled technology and technical data to the foreign national if the export of that technology and its technical data is restricted from export to the foreign national’s home country.
The EAR license requirements apply to the transfer of controlled technology for “development,” “production,” or “use” of certain equipment. See 15 CFR 772.
If the graduate student is receiving technology that has already been published, then that technology is not subject to the EAR and no license is required for the release of that technology. See 15 CFR 734.3(b)(3).