While an export is generally considered to be materials, information and technology that leave the country, something can be a deemed export without leaving the country. If regulated information or technology is released to a foreign national living in the U.S., it is deemed to be an export to the home country or countries of the foreign national.
This concept holds true for industrial espionage situations as well as national security concerns. The Export Administration Regulations (EAR) state that,
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:
While International Traffic in Arms Regulations (ITAR) do 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.
Preventing a deemed export is the primary compliance issue facing university research. Therefore, it is vitally important that we assess a research project/proposal for export issues when:
As with other exports, publicly available technology is not subject to the deemed export rule. Nor does it apply to fundamental research appropriately structured to protect export controlled information / technology from foreign nationals involved with the project.
If you answer NO to the following questions, then your item(s) fall under the Export Administration Regulations (EAR99).
ITAR stands for the International Traffic in Arms Regulations (22 CFR §§ 120-130), established by the Directorate of Defense Trade Controls within the U.S. Department of State. These regulations cover:
The major items regulated under ITAR are identified in the United States Munitions List (USML).
The Commerce Control List (CCL) identifies those items regulated by the Department of Commerce Bureau of Industry and Security (BIS). This includes export control, export and re-export of commercial and dual use items not subject to ITAR or other federal regulations. Dual use items are those with both commercial and military/security applications.
The Department of Energy and the Nuclear Regulatory Commission also have specific export classifications for certain nuclear materials including:
Items not designated under the control of another federal agency or listed on the Commodity Control List (CCL) are classified as EAR99 (Export Administration Regulations). EAR99 items generally are low-technology consumer goods not requiring a license, however there are some exceptions. You might have to get a license if you are sending an item:
Countries subject to comprehensive embargoes are prohibited from most exports, imports and other transactions without a license or other U.S. government authorization. The following is the current list.
The Bureau of Industry and Security website has official updates as well as any restrictions noted for other countries.
The federal government defines it as a person who is NOT:
It also means any foreign corporation, business association, partnership, trust, society or any other entity or group that is not incorporated or organized to do business in the United States. This includes international organizations, foreign governments and any agency or subdivision of foreign governments (e.g., diplomatic missions).
Export licenses are the government documents you use in exporting regulated items such as technologies and prohibited, dangerous or strategic materials.
The U.S. Departments of State and Commerce are the primary agencies regulating these situations and granting the licenses.
It can take many months and up to a year to obtain a federal license unless an exception applies or you can use a general license. This may be impractical for visits by foreign nationals who want to participate in university hosted events or sponsored activities.
UB's export office coordinates with the government agencies when a license is needed. It works through the university's designee, who is the only person officially allowed to sign a federal license application.
University activities that include fundamental research and/or published information generally are excluded from export regulations. However, there are limits so it's important to know and comply with the guidelines.
For export purposes, fundamental research means basic and applied research in science and engineering, the results of which ordinarily are published and shared broadly within the scientific community. The Fundamental Research Exclusion (FRE) allows the results of university research to be excluded from export control regulations.
It does NOT include proprietary research and industrial development, design, production and product utilization if the resulting information, products and projects ordinarily are restricted for proprietary or national security reasons.
State University of New York (SUNY) policy prohibits the acceptance of any awards that restrict dissemination of research results and/or foreign national participation. (documents 1800 and 1801)
You can request a justifiable exception to this policy when working with Sponsored Projects Services (SPS) during the contract negotiation process.
The Published Information Exclusion generally protects information when it is accessible to the public in any form, including:
*Note, a conference or gathering is 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. The following do NOT change its open status:
A Technology Control Plan (TCP) helps ensure that controlled materials are not accessed by unauthorized persons. You need a plan when ITAR, CCL or other controlled items or data are present on campus, or when UB personnel are using controlled materials while not under the direct control of the provider.
Often a Technology Control Plan (TCP) is used to identify controlled materials or data and describe how these items will be secured while at the university. It includes plans for storing and housing the items as well as procedures that prevent unauthorized access to restricted items or information.
The PI is responsible for developing and monitoring the TCP, which should be customized as to necessary security measures for the given situation. TCPs generally reference the following:
Prepare your grant budget accordingly because there is a cost to protecting controlled materials. If you encounter unanticipated costs or research changes, consider other options for the additional costs, whether for a separate computer, special storage facilities or separate work space. Let your sponsor know of the need for additional security measures and perhaps the sponsor could help because you must protect controlled information, technology and materials.
Start your TCP with the template provided. UB's export control office will help complete the plan and get it approved.
Here are a few tips to get you going on the TCP: