Export Control

An Overview of Export Controls:

Under U.S. export control laws and regulations, the release of technology or technical data to a foreign national in the U.S. is deemed to be an export to the individual’s home country, even though the release occurs entirely within the United States.  This concept is referred to as a “deemed export.”  The rationale behind this rule is that a release of technology or technical data to a foreign national is permanent and the individual could apply the knowledge upon return to his/her home country.

In some cases, a U.S. government export license is required prior to the release of technology or technical data to a foreign national. Under export controls, a "foreign national" is anyone who is not a U.S. citizen or lawful permanent resident (i.e., aliens possessing a valid Form I-551 or "green card"), or persons granted asylee or refugee status. In a university setting, a foreign national may be someone who is a faculty member, staff member, student, researcher, employee, sponsor, or other collaborator.

The term "release" is broadly defined and can occur through visual inspection (including via computer networks), verbal exchanges, or the application outside the U.S. of personal knowledge or technical experience acquired in the United States.

Under the deemed export rule, the license requirement is dependent on two factors: (1) the nature of technology that will be released to the foreign national; and (2) the foreign national’s home country.

U.S. export control requirements are complex, especially in a university setting.  For example, universities may work with a wide range of technologies in diverse areas of research.  Though universities may be able to use a “publicly available” exclusion or exemption from U.S. export control requirements, the use of such exemption may be unavailable where the research is subject to publication or other restrictions.

Further, enforcement of U.S. export control regulations continues with fines up to $1,000,000 and 20 years imprisonment in the most egregious cases.  Fines and/or imprisonment for violation of export control laws apply not only to NSU administrators but also to individual faculty and staff members, principal investigators, researchers, etc.

Exclusions and Exemptions from Export Controls

Technology or software that is “publicly available” is typically not subject to U.S. export controls.  This includes technology or software that:

• Is already published or will be published (Public Domain Exclusion);
• Arises during or results from “fundamental research” (Fundament Research Exclusion); or
• Is educational as defined in the regulations (Education Exclusion).

Each exclusion and some potential limitations are described in greater detail below.

Public Domain Exclusion: 

Technology and software information that is already published or will be published is not subject to export controls.  Information is “published” when it becomes generally accessible to the interested public in any form, including:

• Publication in periodicals, books, print, electronic or any other media available for general distribution to any member of the public or to a community of persons interested in the subject matter either free or at a price that does not exceed the cost of reproduction and distribution;
• Readily available at libraries open to the public or at university libraries;
• Patents and open (published) patent applications available at any patent office; or
• Release at an open conference, meeting seminar, trade show or other open gathering.

Limitations:  It is important to note that this exclusion may not apply to technology or software related to defense, military, space applications, or certain encryption software.

Fundamental Research Exclusion:

Fundamental research is defined as basic and applied research in science and engineering conducted at accredited U.S. institutions of higher education where the resulting information is ordinarily published and shared broadly within the scientific community. Such research can be distinguished from proprietary research and from industrial development, design, production, and product utilization, the results of which ordinarily are restricted for proprietary reasons or specific national security reasons.

Information resulting from “fundamental research” is typically excluded from export controls. As a result, a license is not required to release information that qualifies as “fundamental research” to a foreign national.

Limitations:  The Fundamental Research Exclusion may be unavailable if an employee or the university accepts any restrictive clause or condition that:

• Forbids or restricts the participation of foreign nationals;
• Gives the sponsor a right to approve publications resulting from research;
• Restricts access to and disclosure of research results; or
• Otherwise violates the openness in research.

Education Exclusion:

In most cases, a license is not required to share with foreign nationals “information concerning general scientific, mathematical or engineering principles commonly taught in universities.”  This includes information that is released by instruction in catalog courses and associated teaching laboratories of academic institutions.

Limitations:  It is important to note that this exclusion may not apply to technology or software related to defense, military, space applications, or certain encryption software.

Export Control “Red Flags”

Examples of activities in a university setting that may be subject to export controls:

Though university activities are often eligible for exceptions and exclusions, the use of such exclusions/exemptions may be unavailable in certain circumstances.  The following provides guidance on circumstances that require a closer review of potential export control issues. 

Questions regarding the applicability of the export controls or availability of the exclusions/exemption should be directed to ExportControl@nova.edu

Restrictions on Publication or Dissemination of Information:

Export controls may apply if an employee or the university accepts restriction on publication or dissemination of information, including:

• Pre-publication review by a sponsor or third party;
• Treatment of research results as proprietary or confidential;
• A sponsor’s right to withhold information from dissemination;
• An expectation that confidential or proprietary sponsor information remain unpublished.

Restrictions on Research Activities or Participation:   

Export controls may apply if an employee or the university accepts research restrictions, including those that:

• Forbid or restrict the participation of foreign nationals;
• Limit research participation to “U.S. persons” or “U.S. citizens”;
• Designate the research activity, content or results as “subject to export controls”;
• Include a sponsor initiated or Government flow-down export control clause (other than a general statement of compliance);
• Require a security clearance for participants; or
• Otherwise limits the openness in research activities.

International Travel: 

Export controls may also apply to university activities related to international travel.  If you plan to travel overseas and your travel includes support from NSU, you must review the rules applying to international travel:http://www.nova.edu/hr/policies/international-travel-registration.html.

International travel activities that may be subject to export controls include:

• Shipment or  hand-carrying items, materials, equipment or technical data to another country;
• Travel to a country subject to heightened U.S. government scrutiny including Afghanistan, Balkans, Belarus, Burma, China, Cote d’ Ivoire (Ivory Coast), Cuba, Democratic Republic of the Congo, Eritrea, Haiti, Iran, Iraq, Lebanon, Liberia, Libya, North Korea, Russia, Sri Lanka, Somalia, Sudan, Syria, Venezuela, Vietnam, and Zimbabwe

Performance at Foreign Locations or International Collaboration:

With few exceptions, the Fundamental Research exemption is limited to research conducted at U.S. accredited institutions of higher learning.  Therefore, research activity involving a foreign location or exchange of technology with a foreign located collaborator may invalidate this exemption.

In addition, heightened requirements on international collaborators may be subject to U.S. export controls or economic sanctions regulations. This includes, but is not limited to,  the following: Afghanistan, Balkans, Belarus, Burma, China, Cote d’ Ivoire (Ivory Coast), Cuba, Democratic Republic of the Congo, Eritrea, Haiti, Iran, Iraq, Lebanon, Liberia, Libya, North Korea, Russia, Sri Lanka, Somalia, Sudan, Syria, Venezuela, Vietnam, and Zimbabwe

Export Shipments:

The Fundamental Research exemption does not cover the export of hardware, software or technology to a foreign location.

Restricted Technology and Software: 

Not all technology and software is eligible for the exclusions/exemptions described on this site.  Export controls may apply to research or other academic activities involving:  

• Technology or software related to a military, space or satellite application;
• Development or production of encryption source code or encryption software;
• Development or production of controlled chemicals, or bio-agent/toxic materials;
• Research, information or software related to nuclear activities or chem/bio weapons;
• Training of foreign nationals in the use of defense articles;
• Access to technology considered proprietary or confidential by the university or a third-party.

NSU Export Compliance Policy:

Policy Statement: It is the policy of NSU that all employees, professors, students, researchers and collaborators comply with U.S. export control laws and shall follow NSU procedures herein

Policy Scope: This policy is applicable to all members of the NSU community.

Research Programs Externally Sponsored

Externally Sponsored Research:

Overview:  The mission of the Office Sponsored Programs (OSP) is to foster NSU’s research mission by providing support services and training to NSU faculty and staff in identifying, securing, managing, and ensuring compliance with external and internal funding for NSU’s research, community service, and training initiatives.

The OSP is NSU’s central point for pre- and post-award administration of externally sponsored programs funded by government and private sources for research, teaching/training and community service projects. OSP is a resource center that supports each phase of obtaining and managing awards, from proposal planning and submission to final reporting at project close-out. It is the responsibility of the Division of Research and Economic Development to ensure that all research conducted under its auspices is carried out in compliance with all applicable State and Federal regulations, including export controls.  The policies and procedures adopted by the Division of Research and Economic Development serve to ensure research safety and compliance.

Export Control Review:  In order to facilitate compliance with export controls, the Division of Research and Economic Development requires that all NSU members seeking external funding for sponsored programs complete the Proposal Approval Record Form available at http://www.nova.edu/osp/resources/index.html

If the submission form indicates a possible export control issue, the PI will work with the Contract and Export Controls Manager to complete a license determination.  If an export license is required, the PI will assist The Contract and Export Control Manager with the license application.

Contact:  For information regarding Export Controls, please contact: ExportControl@nova.edu

Background: 

The U.S. Citizenship and Immigration Services (USCIS) now requires employers to perform a “deemed export attestation.”  Specifically, employers will now have to certify that they (1) have reviewed the Export Administration Regulations ("EAR") and the International Traffic in Arms Regulations ("ITAR") and (2) have determined whether a license is or is not required before the foreign employee can have access to controlled products or technology.   This attestation is certified on USCIS Form I-129.

Under certain circumstances, employers may need to obtain a “deemed export” license non-immigrant worker visa applicant for the release of export controlled technology or technical data that may occur within the U.S. The government may deny license requests with regard to certain types of technology.  This new certification requirement makes it critically important that employers of foreign nationals, including universities, understand and comply with U.S. export control laws and regulations.

What is a Deemed Export?

The release of technology or technical data to a foreign national in the U.S. is deemed to be an export to the individual’s home country, even though the release occurs entirely within the United States.  This concept is referred to as a “deemed export.”   Such releases are subject to export licensing requirements, and an unauthorized release to a foreign national within the United States constitutes an export violation.  The term "release" is broadly defined and can occur through visual inspection (including via computer networks), verbal exchanges, or the application outside the U.S. of personal knowledge or technical experience acquired in the United States.

A "foreign national" is anyone who is not a U.S. citizen or lawful permanent resident (i.e., aliens possessing a valid Form I-551 or "green card"), or persons granted asylee or refugee status. 

Is this a new requirement?  

While the I-129 export control certification was implemented in early 2011, U.S. employers, including universities, have long been required to comply with the "deemed export" rule.  The new Form I-129 certification requirement does not change the rule in any way.

Key U.S. Export Control Regulations and Agencies:

Under the EAR, an export includes “release of technology or source code subject to the EAR” to a foreign national.  The BIS website includes a set of FAQs that define terms related to “deemed exports” and provide answers to deemed export questions.

International Traffic in Arms Regulations (“ITAR”): The ITAR covers items on the United States Munitions List (“USML”) and generally applies to items that are specifically designed, modified, configured, or adapted for military or space use. These regulations are administered by the U.S. Department of State, Directorate of Defense Trade Controls (“DDTC”).

Website: http://www.pmddtc.state.gov/

Website:  http://www.treasury.gov/about/organizational-structure/offices/Pages/Office-of-Foreign-Assets-Control.aspx