Guidance

  • Actual: shipment or transmission of items out of the U.S.
    • Examples:
    • Physical Shipments
    • Hand carry of physical items overseas (ex. International travel)
  • Deemed: release of technology or software subject to the export regulations to a foreign national (EAR 734.2(b))
    • Such release is deemed to be an export to the home country or countries of the foreign national.
    • Examples:
    • Email of technology to a foreign national
    • Foreign nationals working on export restricted research
    • Posting or pulling from a FTP site
    • Accessing a server overseas
    • File sharing with a foreign person
    • Telephone or Fax
    • Visual inspection by a foreign person of ITAR controlled technical data
    • File sharing with a foreign person
    • Telephone or Fax
    • Visual inspection by a foreign person of ITAR controlled technical data
  • If you do any of the following, you are likely an exporter:
    • Receiving any “export-controlled information” or “controlled proprietary info” specified in NDAs, contracts, grants, MTAs, or purchase orders
    • Travelling internationally with controlled items or information
    • Disclosing or shipping controlled proprietary info to a foreign national in the U.S. (even in your own lab) or to anyone outside the U.S. as part of a research project
    • Shipping controlled items out of the country
    • Teaching foreign nationals about the “use” or “design” of ITAR controlled equipment/tools, or related technologies
    • Providing any service or anything of value to a sanctioned country (Cuba Iran, North Korea, Sudan or Syria)
  • U.S. Export Control regulations are implemented by the U.S. Department of Commerce through its Export Administration Regulations (referred to as "EAR") which focus on dual use items and through the U.S. Department of State through its International Traffic in Arms Regulations (referred to as "ITAR") which focus primarily on military items and technology.
  • The U.S. government maintains trade embargoes through the Office of Foreign Asset Controls (OFAC). If you are traveling or shipping to or collaborating with researchers in an embargoed country, contact Export Control to review licensing requirements. Varying levels of embargoes are in place for the following countries: Cuba, Iran, North Korea, Sudan, Syria or the Balkans, Belarus, Burma (Myanmar), Cote d'Ivoire (Ivory Coast), Democratic Republic of Congo (DRC), Iraq, Lebanon, Liberia, Libya, Somalia, Yemen or Zimbabwe.
  • Fortunately, the EAR and ITAR export control regulations allow for "publicly available, fundamental research" results to be excluded from the regulatory requirements for approvals or licenses, this does not apply for physical shipments which need to be reviewed on a case by case basis.
  • The FRE exempts most on-campus university research from export control licensing requirements
    • Covers:
      • (1) information (not items);
      • (2) resulting from “basic & applied research in science & engineering;
      • (3) at an “accredited institution of higher education”;
      • (4) “located in the United States” ;
      • (5) that is “ordinarily published & shared broadly within the scientific community”
    • Caveats:
      • Does not apply to sponsor’s or 3rd party export-controlled or proprietary information
      • Applies only to Fundamental Research information – not to physical items or services such as training; Also, does not apply to development information
  • Publically Available
    • Information that is published and generally available to the public, as well as publicly available technology and software, is outside the scope of the export control regulations. This exclusion does not apply to encrypted software, to information if there is reason to believe it may be used for weapons of mass destruction, or where the U.S. government has imposed access or dissemination controls as a condition of funding.
      • Information is "published" when it becomes accessible to the public in any form including:
        • Publication in periodicals, books, print, electronic, or other media available for general distribution
        • Readily available at public libraries or at university libraries
        • Patents and published patent applications available at any patent office
        • Release at an open conference, meeting, seminar, trade show, or other open gathering held in the U.S. or anywhere, except a country that is itself a sanctioned or embargoed country.
      • Caveats
        • No equipment or encrypted software involved
        • No reason to believe information will be used for Weapons of Mass Destruction
        • S. government or funding entity has not imposed any access & dissemination controls as a funding condition
  • Educational Information
    • Export control regulations do not apply to information released in academic catalog-listed courses or in teaching labs associated with those courses.
  • Foreign National definition
    • The term foreign national refers to everyone other than a U.S. citizen, a permanent resident alien, and certain protected individuals such as refugees and those with asylum.
  • Deemed Exports
    • The EAR and ITAR regulations state that a transfer of technology or technical data to a foreign person is "deemed" to be an export to the home country of the foreign person. Even a discussion with a foreign researcher or student in a campus laboratory can be considered a "deemed export" if export controlled information is discussed. Export controls preclude the participation of foreign nationals in research that involves restricted technology without first obtaining a license or license exception from the appropriate government agency.
  • Travel to Sanctioned Countries
    • Travel to Sanctioned Countries requires an export review
    • Sanctioned countries include:
      • Comprehensive Sanctions: Cuba, Iran, North Korea, Sudan, and Syria
      • Other Sanctions programs: the Balkans, Belarus, Burma (Myanmar), Cote d'Ivoire (Ivory Coast), Democratic Republic of Congo (DRC), Iraq, Lebanon, Liberia, Libya, Somalia, Yemen or Zimbabwe.
    • Licenses are required for virtually any physical exports to a comprehensively sanctioned country
      • This includes university owned lab equipment/laptop
    • Money transactions and the exchange of goods and services in certain countries are considered providing “value” and may require a license
    • Doing business with certain people or entities can be restricted
      • Commerce, State, and OFAC have denied party “lists”
      • Restricted Party screening will be required to ensure no business is being done with a restricted person or entity
  • Travel to Non-Sanctioned Countries
      • Licenses are generally not required for most EAR items (i.e. laptops, cell phone) however, an export review can confirm this, or assist with potential licensing requirements
      • Travel with any ITAR controlled item must be reviewed and approved before the travel occurs
      • Travel with SDSU owned research equipment should be reviewed:
          • Many potential exceptions can apply for research equipment when temporarily exported
              • BAG (baggage) exception – for most personal items
              • TMP (temporary) exception – for most SDSU owned items
              • Effective Control- Exceptions will require the item to remain in your effective control during your travel
  • Shipping SDSU or SDSURF owned equipment overseas is an export and should be reviewed by the Export Control Officer. The Export Control Officer can advise on licensing requirements.
  • Physical shipments to other countries will need to be reviewed on a case by case basis to determine export classification (ECCN or ITAR category), export licensing requirements or license exceptions and any required Automated Export System (AES) filing for shipments valued over $2500.
  • ITAR Controlled Shipments
    • If a commodity is controlled under ITAR, then a license is almost always required before it can be shipped to any country outside the United States, more than 12 nautical miles by sea, or over the border, except in limited circumstances such as shipment to a military base overseas. Licenses are also required to import such items.
  • EAR Controlled Shipments
    • For commodities controlled under EAR, whether a license is required depends upon the country to which the item is being shipped. Even in cases where license approval from the U.S. Department of Commerce is not required to ship the item to the country, there are administrative requirements and records that must be maintained regarding shipments of EAR controlled items out of the United States.