Export Control Regulations
Export controls are implemented through five regulatory regimes, as follows:
- Export Administration Regulations (EAR): These are the Commerce Department’s “dual-use” controls under Title 15 CFR 700-799 governing hardware, materials, equipment, software, technology and technical data that Commerce defines as “dual use” i.e., having civilian and inherent military or defense application. Commerce places destination (country) and end-use/user-based controls by requiring prior authorization (license) prior to export. Not all items on the Commerce Control List (CCL) are controlled for all countries. For example, the type of control such as “National Security,” “Nuclear Proliferation,” or “Biological/Chemical” (among other types controls), determines what types of items are controlled for particular countries and end uses based on the items specifications, capability and use.
- International Traffic in Arms Regulations (ITAR): These are the State Department’s defense-based controls under Title 22 CFR 120-129 governing defense articles and activities. Defense articles are defined generally as hardware, materials, equipment, software, technology and technical data specifically designed or modified for defense or military application, without a civil performance or use equivalent. The ITAR governs many types of commercially available items built to military specifications commonly used in research activities, including but not limited to the Engineering, Biological, Information, and Space sciences. Unlike the EAR’s dual-use universe, exports of ITAR items are subject to licensing regardless of destination or end user/use, unless a specific license exception is met. In other words, all destinations potentially require licenses. And further, unlike the EAR, certain countries, such as China, are per se prohibited destinations under ITAR: no licenses will be issued.
In addition, the ITAR also regulates a category of activities defined as “defense services.” Essentially these are activities which either involve disclosing ITAR technical data to foreign nationals (or data related to a defense article) even in the pursuit of fundamental research; or disclosing any technical data (including that which is not-controlled, dual use controlled or already in the public domain) to a foreign national or related organization affiliated with a military purpose. Activity that meets one or more of these definitions likewise triggers a licensing requirement.
- Office of Foreign Assets Controls (OFAC): These are the Treasury Department’s economic embargo controls under Title 31 CFR 500-598 governing which types of transactions are restricted with certain countries which OFAC defines as terrorist-sponsoring nations. Exports constitute only one of many types of restricted transactions which OFAC defines as providing a restricted service. While OFAC maintains economic embargoes with numerous countries, the only countries that directly impact exports (outbound and laboratory access) for our purposes are Cuba, Iran, Syria, N. Korea and Sudan. Similar to the EAR and ITAR, transactions with these countries require licenses, which may or may not be authorized depending on the country and nature of transaction.
How Do These Regulations Specifically Impact FIU’s Research Activities?
While most of its research is unrestricted, FIU does occasionally obtain funding with publication restrictions. These projects do not enjoy the protective harbor of the fundamental research exception so specific security plans, export control reviews, export control licenses for personnel exposed to the technology, and continual close monitoring may be required after a thorough review by the FIU Export Control Officer. Mistakes in the dissemination of information in publication-restricted projects may lead to deemed export violations, which may result in personal jail time and substantial personal fines. In fact, FIU would be required to immediately report any such deemed export violation to the Federal Bureau of Investigation and the Department of Commerce Office of Export Enforcement, among others.
Anyone working on a publication-restricted project should be aware of the large number of constraints on releasing information. All such information released should have the explicit written approval of the FIU Export Control Officer. They should also be cautious about providing gratuitous information and careful to guard against premature release of such potentially export controlled information as rapid advances or breakthroughs in technology. A violation of these precepts represents noncompliance with FIU policies and may have serious repercussions.
Outbound shipments or transfer by any means (cargo shipment, courier, hand carried, electronic) of export controlled commodities (hardware, laboratory equipment, materials, research samples) or technical data (software, blue prints, schematics, manuals, information in any form) require analysis under the three regimes discussed above (EAR, ITAR, OFAC) to determine whether a license is required.
Because a license can take at least 30 days to obtain, it is critical to address a potential export requirement as soon as possible to allow for sufficient processing time. The type of license, scope and duration will depend on which authorizing agency (Commerce, State, or Treasury) has jurisdiction over the license application or authorization. This rule applies even where the purpose of exporting the item is to advance fundamental research abroad, for example, as part of field work to be conducted in another country or to facilitate an international collaboration. It is important to note that even where an item (commodity) is created in the University from commercially available components and data, or through technical know-how that is publicly available, the item itself may still require a license to export.
Laboratory access to equipment and technical data
The rules governing access to controlled equipment and data vary depending on whether the access is covered under the EAR or ITAR, as follows:
A. Dual-use (EAR-governed) inventory and technical data
Click here to access Parts 730 to Part 774 of the Export Administration Regulations in the Electronic Code of Federal Regulations. Scroll to Part 774 for a complete digest and list of major headings:
Fundamental Research Exclusion (FRE): Where we are conducting fundamental research (defined as basic and applied research, the results of which are meant to be shared broadly with the scientific community and intended for publication), access to dual-use laboratory equipment and technical data remains unrestricted, subject to exceptions. These exceptions are as follows:
Exception 1: Where a PI has received proprietary technology or source code (“data”) from a sponsor (federal or industrial) as background information or a research tool by which to conduct fundamental research, and this data is export controlled, then access to this data falls outside the FRE: the PI (likely a U.S. person as required by the NDA through which the data is received) is responsible for not sharing it with foreign national members of the research team. Where it is recognized as necessary to share such data and this is contemplated by the NDA, a deemed export license may be required in order for the foreign national to access the data.
Exception 2: Where the proprietary technology specifically concerns technology for the development of advanced cryptography or source code containing advanced cryptography, then a deemed export license will be required prior to access by foreign nationals from Iran, Cuba, Syria, North Korea, and Sudan. Florida International University’s Export Control Officer can assist in determining what qualifies as advanced cryptography for this exception. Again, please note that such technology if self-invented at FIU does not require a license for access by this category of foreign nationals, assuming the technology or code is intended for publication.
Exception 3: Where FIU rents or otherwise hosts laboratory space to external or third party users for their own proprietary, commercial purposes and not to conduct the fundamental research, the FRE does not apply to that party’s access to controlled equipment and process technology. In this case, FIU must determine whether a deemed export license is required.
Exception 4: Fabrication or contract service work for an industry or federal agency partner. Where FIU conducts fabrication and contract service work outside of fundamental research, the FRE does not apply. In this case, FIU must determine whether a deemed export license is required. See also “How Do These Regulations Specifically Impact FIU’s Research Activities?” pertaining to spin-off entities and consulting relationships.
B. Defense (ITAR-governed) inventory and technical data
Click here to access the USML ITAR list of controlled items:
Like the EAR, the ITAR recognizes fundamental research subject to the same framework of not accepting publication or citizenship restrictions, and requiring that all research be intended for the “public domain.” Hence, acceptance of any citizenship or publication restriction by a sponsor automatically triggers ITAR disclosure restrictions to research results classified as ITAR. Again, FIU does not usually accept restricted funding from a government or industry sponsor (and regardless of whether FIU is a prime or subcontractor), and most—but not all—of its research results are intended for the public domain.
However, even where no restrictions are accepted from a sponsor as to the dissemination of research results, ITAR controls still apply to any ITAR item or data that FIU receives either from the sponsor or a collaborating institution, or procures commercially for purposes of conducting the research. Whereas the FRE (with only certain exceptions) allows access to equipment and data used during the course of fundamental research by foreign national faculty and researchers, ITAR restricts access to equipment and data where using it in any capacity discloses the inherent design, operation, or know-how that renders it ITAR controlled.
In this case, where a PI wants to provide access to a foreign national researcher of ITAR controlled commodity, equipment or data, FIU will have to obtain an export license prior to such access and if ITAR controls apply, the PI will need to create a Technology Control Plan (TCP) to secure the item. The TCP is used to allow physical access to a commodity or virtual or physical access to technical data only to U.S. persons. The only exception to this rule is the situation where the foreign researcher qualifies as a full time FIU employee and where certain other regulatory criteria are met. Even where this exception is met, the foreign researcher cannot transfer the ITAR-controlled data to any other foreign national on the research team.
As noted, separate from the restrictive access provisions under the ITAR, ITAR also requires licensing of foreign nationals when the research activity constitutes a “defense service” as defined above.
OFAC does not per se regulate access to specific laboratory equipment, technical data and research results the way that the EAR and ITAR do. Rather, OFAC regulates transactions involving certain restricted countries and, to the extent that such transactions require activity within FIU’s laboratories, these activities fall under OFAC’s domain. For example, research collaboration with an institution in Iran requiring laboratory research at FIU may require a license, even if only data and no commodity were being transferred to Iran. Transferring any research materials to the OFAC-restricted countries or importing any item from them likewise requires a license. Providing editorial comment directly to a foreign national located in one of the OFAC restricted countries as part of a journal or peer review requires review on a case-by-case basis.
However, this restriction should be distinguished from those situations where research results are made publicly available by posting them on the internet or through a professional website that anyone can access. In that case, the fact that an Iranian researcher or institution downloads the item does not constitute an OFAC violation. However, at the point at which the Iranian institution seeks specific guidance from FIU pertaining to publicly available information or seeks technical assistance of any kind, this activity may trigger a license requirement.