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Introduction

Government agencies have significantly increased their enforcement of export control compliance to include universities and research institutions. Compliance audits by the agencies as well as requirements such as the I-129 Visa Petition Certification further elevate enforcement visibility. Florida International University as an institution as well as individual PIs and administrators can be held liable for export control violations, with severe monetary penalties and sanctions including loss of export privileges resulting from non-compliance.

This Overview is intended to provide FIU personnel with a concise summary of how Export Control regulations affect research activities, international collaborations, and export-related transactions at the University. It provides links to key sections of the regulations and FIU procedures addressing the types of items that the government controls. There are links to contacts for assistance on these matters. All research and administrative staff are encouraged to read this Overview and use it as an ongoing resource for complying with export controls.

What is an Export?

“Exports” are defined in two principal ways:

  1. Shipments of items or data abroad by any means; cargo shipments; electronic data transmission (email), spoken communication, hand carried articles, fax, and courier.
  2. By “release” or disclosure: visual and computer access to export controlled items, technology or technical data (hard or soft copy), occurring in the U.S by foreign persons of certain countries validly here on temporary student or employment visas, but who are neither U.S. citizens nor Permanent Residents; the export is “deemed” to occur upon the foreign national’s return to his/her home country. The definition of “foreign persons” includes anyone other than a U.S. citizen, a permanent resident alien, and certain "protected individuals" (refugees and those with asylum); it also includes any company not incorporated in the United States.

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Export Control Regulations

Export controls are implemented through five regulatory regimes, including:

  1. EAR - The Commerce Department’s Export Administration Regulations govern “dual-use” items. These are items having both civilian and military or defense applications.
  2. ITAR - The Department of State’s International Traffic in Arms Regulations govern defense articles and activities, as well as all space launch related items and activities.
  3. OFAC - The Department of Treasury’s Office of Foreign Assets Controls governs exports and other transactions with economically embargoed countries and parties as well as those designated as sponsoring terrorism.
  4. NRC - The Nuclear Regulatory Commission governs exports of certain nuclear equipment and materials.
  5. DOE - The Department of Energy’s regulations likewise govern certain nuclear and nuclear-related technology and materials as well as other “sensitive” items and subjects.

How Do These Regulations Specifically Impact FIU’s Research Activities and Non-Research?

Research at FIU is primarily but not exclusively non-restricted. Non-restricted research is covered under the Fundamental Research Exclusion (“FRE”). The FRE allows foreign national researchers at the University to access EAR-controlled items and data for purposes of basic and applied research, the results of which are intended for publication and broad dissemination within the scientific community. However, some fundamental research is informed by “background information” which is export controlled and must be protected.

Non-research activities at the University, as well as the limited segment of restricted research, are not protected by the FRE. Thus, the following activities must always be evaluated for export control purposes whether they are related to a research project or not:

  1. Outbound shipments to foreign destinations require analysis under the five regulatory regimes to determine whether an authorization is required.
  2. Laboratory access to controlled equipment and technical data that does not fall under the FRE must be restricted to authorized personnel.
  3. International collaborations may not involve prohibited parties and must be screened accordingly against the restricted parties' lists.
  4. Teaching/lecturing abroad and participating in international conferences may, in certain cases, require authorization.
  5. Foreign travel may trigger a variety of compliance requirements.
  6. Hosting foreign national visitors (non-US persons) requires screening against restricted parties lists and may require access control planning.
  7. Research activities not covered by the FRE need to be evaluated for export compliance purposes.
  8. For fabrication contracts and spin-off entities (i.e. where an FIU PI or administrator has created a separately chartered company to perform services unrelated to his/her staff position at FIU), it is necessary to ensure that any export controlled activity conducted by the spin-off does not occur using FIU physical or human resources. Such entities must seek separate counsel pertaining to export control compliance obligations.
  9. For private consulting or advisory services, where a PI’s private consulting arrangement triggers export controls, compliance with these controls remains the legal responsibility of the PI in his/her private capacity, and is not FIU’s responsibility.

What is an Export for purposes of export controls?

“Exports” are defined in two principal ways:

  1. Shipments of items or data abroad by any means; cargo shipments; electronic data transmission (email), spoken communication, hand carried articles, fax, and courier.

  2. By “release” or disclosure: visual and computer access to export controlled items, technology or technical data (hard or soft copy), occurring in the U.S by foreign persons of certain countries validly here on temporary student or employment visas, but who are neither U.S. citizens nor Permanent Residents; the export is “deemed” to occur upon the foreign national’s return to his/her home country. The definition of “foreign persons” includes companies not incorporated in the U.S., foreign governments, and international organizations.

    ** For purposes of both (1) and (2) above, technical data is defined as follows: blueprints, plans, diagrams, models, formulae, tables, engineering designs, and specifications, manuals and instructions written or recorded on other media or devices such as disk, tape read-only memories; and oral communication about any data contained therein.

The export control regulations govern what laboratory instruments, equipment, materials, software, technology and technical data can be transferred out of the country by any means (e.g. cargo shipment, hand-carried laptop content, courier, email, and spoken communication) as well as what can be accessed by foreign nationals present at our laboratories for whom certain export restrictions apply. In certain cases, these situations require prior authorization (an export license) from one of the applicable governing agencies. These agencies include the Departments of Commerce, State, Treasury, Defense, Energy, and the Nuclear Regulatory Commission.

While the vast majority of research and business activities that we conduct at FIU are restriction-free, the significant increase in the level of agency export enforcement with respect to major research institutions such as FIU requires that we ensure full compliance with these regulations, particularly where export license requirements or technology controls apply.

Failure to adhere to these regulations can result in severe monetary penalties, revocation of export privileges, debarment from federal funding, and civil or criminal enforcement against both FIU and/or the individual PI to whom a violation is attributed. This heightened enforcement is further evident in the new H1/O Visa Petition Certification requirement, requiring FIU to certify whether H1 or O visa beneficiaries will require an export license to access export controlled technical data in the course of their research responsibilities within our laboratories.