EXPORT CONTROL BASICS
What are Export Controls
Generally stated, export controls regulate the disclosure, shipment, use, transfer or transmission
of any item, commodity, material, technical information or software, and encrypted software appearing
on the U.S. government's controlled technologies lists for the benefit of a foreign person or foreign
entity anywhere. Additionally, export controls regulate transactions or the provision of services involving
prohibited countries, persons or entities based on trade sanctions, embargoes and travel restrictions.
In general, the federal definition of an export is any item that is sent from the U.S. to a foreign
destination:
- to anyone outside the U.S., including U.S. citizens
- to foreign entities, individuals, embassies or affiliates at any location, including the
U.S.
Export Controls and the Research Foundation for SUNY at the State University of New York
Memorandum, November 19, 2010
PDF, 2 pages, 358KB
Questions to Consider when Evaluating a Research Project
Any activity involving funding through the Research Foundation should
be reviewed carefully because every export control issue is situational, especially if the project involves
a foreign component.
The basic questions to ask include:
- What items or technologies are being used?
- Where are any items or technologies going?
- Who will access the research, items or technologies?
Please note that these questions should be asked for all facets of research, including but not limited
to:
- foreign visitors entering your lab;
- shipping equipment, supplies, biologics or chemicals both inside and outside the United
States;
- sending technical information, via electronic communications or hard copies, both inside
and outside the United States;
- traveling abroad with electronic devices;
- use of research equipment and/or the access to technical specifications of research equipment
by any foreign nationals in a campus laboratory.
Export Defined under the International Traffic in Arms Regulations
“Export” as defined in §120.17:
(1) Sending or taking a defense article out of the United States in any manner, except by mere travel
outside of the United States by a person whose personal knowledge includes technical data; or
(2) Transferring registration, control or ownership to a foreign person of any aircraft, vessel,
or satellite covered by the U.S. Munitions List, whether in the United States or abroad; or
(3) Disclosing (including oral or visual disclosure) or transferring in the United States any defense
article to an embassy, any agency or subdivision of a foreign government (e.g., diplomatic missions);
or
(4) Disclosing (including oral or visual disclosure) or transferring technical data to a foreign
person, whether in the United States or abroad; or
(5) Performing a defense service on behalf of, or for the benefit of, a foreign person, whether in
the United States or abroad;
(6) A launch vehicle or payload shall not, by reason of the launching of such vehicle, be considered
an export for purposes of this subchapter. However, for certain limited purposes (see § 126.1 of this
subchapter), the controls of this subchapter may apply to any sale, transfer or proposal to sell or
transfer defense articles or defense services.
Export Defined under the Export Administration Regulations
Export as defined in 15 CFR 734.2
- “Export” means an actual shipment or transmission of items subject to the EAR out
of the United States, or release of technology or software subject to the EAR to a foreign national
in the United States.
- “Re-export” means an actual shipment or transmission of items subject to the EAR
from one foreign country to another foreign country; or release of technology or software subject
to the EAR to a foreign national outside of the United States
- “Deemed Export”: any release of technology or source code subject to the EAR
to a foreign national. Such release is deemed to be an export to the home country or countries
of the foreign national.
- “Deemed Re-export”: any transfer of a controlled U.S. technology (deemed export)
to a third-country national overseas.
*Note: for purposes of the EAR transfer of technology or source code to a foreign national
in the United States is the same as a transfer to the foreign national’s home country.
Penalties
Violations of these rules carry both personal (Investigator) and Institutional (The Research Foundation
and SUNY) penalties of jail time and monetary fines. The level of university compliance is being scrutinized
closely these days due to the intersection of cutting edge science, technology and engineering research
with national security, foreign policy and homeland security in university laboratories.
License Exemptions and Exceptions
Even if the research you are conducting appears on the list, export may still be
permissible if an exemption or exception is applicable. All exemptions and exceptions MUST be
adequately documented and kept on file at the Office of Sponsored Programs or the Office of Grants Management.
Fundamental Research Exemption/Exception: is defined
as basic and applied research in science and engineering conducted at a university located in the U.S.
where the resulting information is ordinarily published (EAR) or is in the public domain (ITAR) and
shared broadly within the scientific community (this exemption does not apply to: encrypted software,
research conducted outside the U.S., and the physical item). **
**Please note that for the fundamental research exemption to be in force, the institution
cannot agree to any publication restrictions on an award. The fundamental research exemption also
does not apply to equipment use or shipment.
A list of common exemptions and exceptions are available on the
Research Foundation Central Office’s website.
Technology Control Plans
If an export control issue is identified, either a Technology Control Plan or Export
Administration Regulations Guidance Document will be developed to ensure compliance with export control
regulations.
INTERNATIONAL TRAVEL
International Travel Information
- Department of State’s website provides information on: travel alerts, travel warnings, country
specific information, required documentation and tips for traveling abroad.
Research Foundation for SUNY Foreign Travel Policy
Advance approval is required for travel to any country appearing in the Current Travel Warnings List
as indicated on the US Department of State’s List with a “Travel Warning”.
The International Travel Policy applies to any person employed by, representing, or acting on behalf
of the RF for travel outside the US (International Travel) on official RF business.
Prior approval must be obtained in writing from the Vice President for Research and campus president
for all campus staff.
Contact Stephanie Amman, Manger Sponsored Programs Expenditures, at
Stephanie.Ammann@stonybrook.edu for additional
guidance.
International Travel with Electronic Communication Devices
Guidance Document: PDF, 2 pages, 34KB
SHIPPING OFF CAMPUS
Materials
Materials, including biologics and chemicals, being shipped off of campus needs to be reviewed by
the Office of Technology Licensing and Industry Relations in consultation with the Stony Brook University
Department of Environmental Health and Safety for possible export control issues, proper handling of
the materials and for the determination of whether or not an agreement is required.
Equipment, software or technology
Research Foundation for SUNY equipment, software or technology being shipped off of campus needs to
be reviewed by the Office of Sponsored Programs for possible export control issues and for the determination
of whether or not an agreement is required.
FOREIGN VISITORS AND HIRING FOREIGN NATIONALS
Who is a Foreign National?
The federal definition of a foreign national is a person who is not:
- granted permanent U.S. residence, as demonstrated by the issuance of a permanent residence
card, i.e., a "Green Card"
- granted U.S. citizenship
- granted status as a "protected person" under 8 U.S.C. 1324b(a)(3), e.g., political
refugees, political asylum holders, etc.
This includes all persons in the U.S. as students, businesspeople, scholars, researchers, technical
experts, etc.
Note: "Foreign national" is the term used by the Department of Commerce, while "foreign
person" is the term used by the Department of State.
Foreign Nationals on Campus
When hiring foreign nationals or having foreign visitors to your laboratory, you should work in conjunction
with the appropriate campus offices, i.e. International Programs, Human Resources and the Office of
Sponsored Programs to:
- Have the foreign national screened against the various governmental restricted parties’
lists to ensure compliance with US laws and regulations.
- Verify that no export license is required for the foreign national to have access to the
laboratory, technology or technical data that they will be viewing, hearing about or working
with.
I-129 Form: Deemed Export Control Attestation
Effective February 20, 2011 Form I-129 requires a Deemed Export Attestation for a foreign
person on an H-1B, H-1B1 Chile/Singapore, L-1 or O-1A visa petition, as follows:
With respect to the technology or technical data the petitioner will release or otherwise provide
access to the beneficiary, the petitioner certifies that it has reviewed the Export Administration Regulations
(EAR) and the International Traffic in Arms Regulations (ITAR) and has determined that:
- A license is not required from either the US Department of Commerce or the US Department of
State to release such technology or technical data to the foreign person; or
- A license is required from the US Department of Commerce or the US Department of State to release
such technology or technical data to the beneficiary and the petitioner will prevent access to the
controlled technology or technical data by the beneficiary until and unless the petitioner has received
the required license or other authorization to release it to the beneficiary.
What is a Deemed Export
“An export of technology or source code (except encryption source code) is ‘deemed’ to take place
when it is released to a foreign national within the United States. Technology is ‘released’ for
export when it is available to foreign nationals for visual inspection (such as reading technical specifications,
plans, blueprints, etc.); when technology is exchanged orally; or when technology is made available
by practice or application under the guidance of persons with knowledge of the technology.”
See §734.2(b)(2) of EAR.
Note: While ITAR does not incorporate the term “deemed export” the concept is
in the definition of an export and pertains to the release of ITAR technical data and defense services.
REGULATIONS
Export Administration Regulations (EAR)
Export Administration Regulations (EAR) control the export
and re-export of commercial and dual use (commercial and military/security applications) items, including
encrypted software, appearing on the Commodities Control List (CCL) (http://www.bis.doc.gov/policiesandregulations/index.htm).
Additional guidance on encrypted software, including a review
checklist, can be found at: (http://www.bis.doc.gov/encryption/checklistinstr.htm)
Regulated items are identified on the Commodity Control List (CCL) 15 CFR
774 Supplement 1 in the following ten broad categories:
- 0-Nuclear Materials, Facilities and Equipment and Miscellaneous
- 1-Materials, Chemicals, "Microorganisms," and Toxins
- 2-Materials Processing
- 3-Electronics
- 4-Computers
- 5-Telecommunications and Information Security
- 6-Lasers and Sensors
- 7-Navigation and Avionics
- 8-Marine
- 9-Propulsion Systems, Space Vehicles and Related Equipment
Within each category, items are arranged by group:
- A-Equipment, Assemblies and Components
- B-Test, Inspection and Production Equipment
- C-Materials
- D-Software
- E-Technology
International Traffic in Arms Regulations (ITAR)
International Traffic in Arms Regulations (ITAR) control the export and temporary import of ITAR controlled
military items like defense articles and defense services covered by the U.S. Munitions List (
http://pmddtc.state.gov/regulations_laws/itar.html),
inclusive of space and satellite technologies.
If an USML article is incorporated into a larger article, then the larger article
becomes controlled under ITAR.
Regulated items are identified on the United States Munitions List (USML), 22
CFR § 121 in the following categories:
- Category I-Firearms
- Category II-Artillery
Projectors
- Category III-Ammunition
- Category IV-Launch
Vehicles, Guided Missiles, Ballistic Missiles, Rockets, Torpedoes, Bombs and Mines
- Category V-Explosives,
Propellants, Incendiary Agents, and Their Constituents
- Category VI-Vessels
of War and Special Naval Equipment
- Category VII-Tanks
and Military Vehicles
- Category VIII-Aircraft,
[Spacecraft] and Associated Equipment
- Category IX-Military
Training Equipment
- Category X-Protective
Personnel Equipment
- Category XI-Military
[and Space] Electronics
- Category XII-Fire
Control, Range Finder, Optical and Guidance and Control Equipment
- Category XIII-Auxiliary
Military Equipment
- Category XIV-Toxicological
Agents and Equipment and Radiological Equipment
- Category XV-Spacecraft
Systems and Associated Equipment
- Category XVI-Nuclear
Weapons Design and Test Equipment
- Category XVII-Classified
Articles, Technical Data and Defense Services Not Otherwise Enumerated
- Category XVIII-[Reserved]
- Category XIX-[Reserved]
- Category XX-Submersible
Vessels, Oceanographic and Associated Equipment
- Category XXI-Miscellaneous
Articles
Office of Foreign Asset Controls (OFAC) Regulations
Office of Foreign Asset Control Regulations
(OFAC) enforces economic and trade sanctions based on U.S. foreign policy and national security goals
against foreign targeted countries or entities, terrorists, international narcotics traffickers and
those engaged in activities related to the proliferation of weapons of mass destruction. (www.access.gpo.gov/nara/cfr/waisidx_03/31cfr500_03.html)
Restricted Parties
There are over fifty lists issued by various governmental agencies that restrict
transactions with specific individuals, groups and entities. Restricted party designation is
not based upon nationality but instead is based upon previous behavior or action. The Office
of Sponsored Programs utilizes Visual Compliance to screen individuals against these lists. Some examples
of these lists are:
- Department of Commerce Denied Persons List; Department of Commerce Entity
List; Department of Commerce “Unverified” List; US Department of Treasury Specially Designated
Nations and Blocked Persons; Department of State Terrorist Organizations; Department of State
Terrorist Exclusion List; Department of State Arms Export Control Act Debarred Parties; Department
of State Nonproliferation Orders; Weapons of Mass Destruction Trade Control Designations.
- eCustomsVisual Compliance Restricted Parties Screening List
eCustomsVisual Compliance is a web based program that assists the Office of
Sponsored Programs with properly identifying an export controlled item, commodity, material,
technical information or software, or encrypted software. eCustoms Visual Compliance also
assists the Office of Sponsored Programs with properly identifying any restricted parties.
