Export Controls

"Export" is defined not only as a physical transfer/disclosure of an item outside the U.S., but also as a transfer/disclosure in any form of a controlled item or information within the U.S. to anyone who is a foreign national (not a U.S. citizen or permanent resident). This is called the "deemed export" rule. As a result, unless an exclusion or exemption is available, the university may be required to obtain prior governmental approval (in the form of an export license) before allowing the participation of foreign national faculty, staff, or students in affected research. In some cases, a license may not be available at all based on the country involved.

The following are some additional examples of situations in which a license may be required:

• Presentation/discussion of previously unpublished research at conferences and meetings where foreign national scholars may be in attendance
• Research collaborations with foreign nationals and technical exchange programs
• Transfers of research equipment abroad
• Visits to your lab by foreign scholars

Does the activity involve:

• A foreign company or government sponsor where the activity is conducted here or abroad?
• A foreign national (a person who is not a U.S. citizen or Green Card holder)?
• Foreign Nationals (faculty, post-docs, students, visiting scholars, collaborators, etc.) using equipment on the USF campus?
• A U.S. government contract with a restriction on participation by foreign nationals or other restriction?
• A contract with a U.S. company or the U.S. government that has a publication restriction or an associated NDA or proprietary rights agreement?
• Taking equipment abroad?

If you answered YES to any of the questions above, contact the Office of Export Controls at exportcontrol@usf.edu or by phone (813-974-5638).

A license is not required to send most items to most countries. However, you should always consult with the Office of Export Controls prior to exporting equipment, software (including source or object code), technical data (other than fundamental research results), or encryption technology. A license may be required to hire a foreign national to participate in an export controlled project.

Export licenses are requested on behalf of a researcher by the Office of Export Controls to the appropriate regulatory body. It is important to note that obtaining an export license may take several months and there is no guarantee that the U.S. government will approve a license request.

Yes, in most cases, low-end items that are commercially available do not require export licenses. There are some important exceptions including items containing strong encryption technology or software (e.g., laptop computers, or web-enabled cell phones), items that have dual use applications (e.g., high end GPS units), or that are restricted under other regulations or sanctions.

Export Controls are U.S. laws that regulate, for reasons of foreign policy and national security, the distribution of strategically important technology, services and information to foreign nationals and foreign countries.

USF investigators engage in a broad range of innovative and important research both in the United States and overseas. These activities include the sharing and development of products, goods, hardware, software, or materials, as well as research involving technology that may be subject to U.S. export control laws and regulations. While our primary mission is education, research and service, the responsibility remains to balance the service of this mission with safeguarding national assets through the adherence to export regulations, rules and laws of the U.S. Government.

Following the events of 9/11 there has been a heightened level of awareness and scrutiny of all export activities with an accompanying emphasis on enforcement. Federal agencies are increasingly focused on universities and their compliance with export regulations. Non-compliance with export regulations can lead to substantial and severe criminal and monetary penalties imposed on both individual researchers and institutions.

The following are the current U.S. Governmental agencies with oversight of export control regulations:

• The Department of Commerce's Export Administration Regulations (EAR)
• The Department of State's International Traffic In Arms Regulations (ITAR)
• The Treasury Department's Office of Foreign Assets Control (OFAC)

Any research activity may be subject to export controls if it involves the actual export or "deemed export" of any goods, technology, or related technical data that is either 1) "dual use" (commercial in nature with possible military application) or 2) inherently military in nature.

Work in the following areas (not inclusive) is considered high risk:

• Engineering
• Space sciences
• Computer Science
• Biomedical research with lasers
• Research with encrypted software
• Research with controlled chemicals, biological agents, and toxins

In addition, any of the following raise export control questions for your project:

• The funding opportunity announcement (BAA, RFP or other solicitation) or terms and conditions mention citizenship/foreign national controls, export controls, or publication restrictions.
• Sponsor restrictions on the participation of foreign nationals in the research.
• Sponsor restrictions on the publication or disclosure of the research results.
• The sponsor is a Department of Defense agency, an intelligence agency, Homeland Security, the National Aeronautics and Space Administration, the Department of Energy, or a defense contractor.
• You will be working with ITAR information or technology, proprietary equipment, software or technical data; particularly if supplied by the sponsor or a third party.
• The physical export of controlled goods or technology is expected
• You will be paying for services in a foreign country.
• The proposal includes work in or travels to a sanctioned country (e.g. Iran, Cuba, Syria, North Sudan, and North Korea).
• Any party (individual, company, or other organization) to the proposal, including the sponsor, is a listed entity or has otherwise been denied US export privileges.

Export controls apply if the topic of the research appears on either the ITAR Munitions List or the EAR Commerce Control List. ITAR places strict controls on the export of "defense articles" and "defense services." Defense articles include any item or technical data on the United States Munitions List (USML), and defense services include the furnishing of assistance to foreign persons, whether or not in the United States, with respect to defense articles, and the furnishing of any technical data associated with a defense article.

There is one crucial thing to remember:

You cannot depend on the contract terms to know whether or not export controls apply. Whether or not the agreement specifically invokes or refutes a particular export control regulation is irrelevant to the question of whether or not the export control applies.

For example:

The contract says: "This work may be subject to ITAR," but the work has nothing to do with anything on the ITAR Munitions List. Since the technology is not on the list, then ITAR doesn't apply.

The contract says: "This work is exempt from ITAR," but the work is researching defensive measures against biological weapons. This technology is on the ITAR Munitions List (Category XIV, Section C) so ITAR applies.

Not all publication restrictions are created equal. A sponsor requirement to pre-review a publication (to check for erroneously included proprietary information, for example) is a temporary delay and does not really constitute a restriction. If the sponsor will not allow publication at all or must approve publication, clearly that's a restriction, as is a requirement not to publish for an extended period of time. ANY restriction of USF's right to publish research results removes the fundamental research exclusion. Faculty should know that any "side agreement" with a sponsor to delay publication or to allow sponsor preapproval, also negates the fundamental research exclusion. Publication restrictions remove the FRE and render the project subject to export controls including both actual export and "deemed export," which forbids sharing of certain controlled information or technologies with foreign nationals and other non-U.S. persons in the United States.

This action is an indication that the direction of the research or some other factor has changed the project in some way to render the export control regulations applicable to this project and that, more than likely, the researcher's work will now be export controlled. The PI should reexamine the research, checking the ITAR/USML and EAR/CCL lists to see if the research falls under either of these lists. The PI should also notify the Office of Export Controls to report that the export control status has changed. The PI and the Export Control Officer will work together to document security measures to protect the export controlled information with a Technology Control Plan (TCP).

Some research will be accepted that does not qualify for Exclusion, or involves ITAR/USML defense articles and associated technical data. In these instances, Office of Export Controls, prior to commencement of the research, is required to institute measures to safeguard the research and ITAR/USML articles and data. These measures are detailed in a Technology Control Plan, and include:

• Laboratory compartmentalization by reconfiguring lab space or work areas
• Time blocking by restricting times when export controlled research will take place
• Mark equipment and data as "export controlled" for identification purposes
• Exclude foreign national participation from the research or obtain worker licenses
• Implement physical safeguards to secure tangible items and data
• Implement computer safeguards to secure data

A Technology Control Plan (TCP) is required any time an ITAR-controlled defense article or technical data will be under USF's effective control. A TCP is also required for EAR controlled technical data, encryption technology, and source or object code under USF's effective control. Typically a TCP is not required to obtain and maintain EAR-controlled equipment or technology at USF; however, a license or valid license exception may be required for the physical export of that equipment or technology.