Export Control FAQs

The U.S. government regulates the transfer of information, commodities, technology, and software considered to be strategically important to the U.S. in the interest of national security, economic and/or foreign policy concerns. There is a complicated network of federal agencies and inter-related regulations that govern exports collectively referred to as "Export Controls."

In brief, Export Controls regulate the shipment or transfer, by whatever means, of controlled items, software, technology, or services out of U.S. (termed an "Export"). Perhaps of even more consequence to the university, is that the government also restricts the release of certain information to foreign nationals here in the U.S. (referred to as a "Deemed Export").

Export Controls have the potential to severely limit the research opportunities of university faculty and their students and staff, as well as to prevent international collaboration in certain research areas. Non-compliance with export controls can result in severe monetary and criminal penalties against both an individual as well as the university, and can result in the loss of research contracts, governmental funding, and the ability to export items.

The policy is located on the Office of Research website at: http://jhw.au99168.com/research/compliance/export-control.php

Research in export restricted science and engineering areas – examples include:

• Military or Defense Articles and Services
• High Performance Computing
• Dual Use Technologies (technologies with both a military and commercial application)
• Encryption Technology
• Missiles & Missile Technology
• Chemical/Biological Weapons
• Nuclear Technology
• Nuclear Technology
• Space Technology & Satellites
• Medical Lasers

Traveling overseas with high tech equipment, confidential, unpublished, or proprietary information or data – Traveling with certain types of high tech equipment including but not limited to advanced GPS units, scientific equipment, or with controlled, proprietary or unpublished data in any format may require an export license depending on your travel destination.

Traveling with laptop computers, web-enabled cell phones and other personal equipment – Laptop computers, web-enabled cell phones, and other electronics containing encryption hardware or software and/or proprietary software can require an export license to certain destinations. In general, an export license will be required to take any items to or through any U.S. sanctioned country (e.g., Iran, Syria, Cuba, Sudan, and North Korea).

Use of 3rd Party Export Controlled Technology or Information – University activities involving the use of export controlled information, items, or technology received from outside the university are not protected under the Fundamental Research Exclusion and all research involving the use of export restricted technology is subject to all export controls.

Sponsored research containing contractual restrictions on publication or dissemination – The vast majority of research done at the university is shielded from export controls under the Fundamental Research Exclusion. However, this protection is lost whenever the university or the researcher agrees to allow any restrictions on the publication, dissemination, or access to the research by foreign nationals.

Shipping or Taking Items Overseas – University activities that involve the transfer of project information, equipment, materials, or technology out of the U.S. by whatever means will be subject to export controls and may require export license(s) depending on the item, destination, recipient, and end-use.

Providing Financial Support/International Financial Transactions – University activities that involve the international payment of funds to non-U.S. persons abroad need to be verified to ensure that the university is not inadvertently providing financial assistance to a blocked or sanctioned entity. Examples include providing support via a subcontract to a non-U.S. university or providing payments to research subjects in other countries.

International Collaborations & Presentations – University activities that involve foreign national faculty, students, staff, visiting foreign scientists or collaborator(s), or other foreign entities (e.g., non-U.S. company, university or other organization) or research that will include travel to international conferences to present unpublished results may be subject to export controls especially if any of the foreign nationals are from embargoed or sanctioned countries.

International Field Work – Research projects where any part of the research will take place outside the U.S. (e.g., field work outside the U.S.) may not qualify under the Fundamental Research Exclusion and may be subject to export controls.

International Consulting – Providing professional consulting services overseas, especially to embargoed or sanctioned countries (e.g., Iran, Syria, Cuba, Sudan and North Korea) is, in most cases, strictly prohibited.

Penalties for violating U.S. export control laws (EAR, ITAR) or trade sanctions (OFAC) can be severe. The penalty for unlawful exports of items or information controlled under the ITAR is up to two years imprisonment, or a fine of $100,000, or both. The penalty for unlawful export of items or information controlled under the EAR is a fine of up to $1,000,000 or five times the value of the exports, whichever is greater; or, for an individual, imprisonment of up to ten years or a fine of up to $250,000 or both.

Yes, export controls apply to all international activities regardless of funding status or source.

Yes, export controls apply to all international research activities. In general, basic research conducted at the university is not subject to export controls under the Fundamental Research Exclusion as long as it is not in an export restricted area and there are no restrictions on publication or access by foreign nationals. However, in cases where NJIT research involves collaborations with foreign nationals, the university must perform a review of the research and document that the Fundamental Research Exclusion or other exclusion does or does not apply.

An export occurs whenever any item (i.e., any commodity, software, technology, or equipment) or information is sent from the U.S. to a foreign destination or provided to a foreign national here or abroad. The manner in which the transfer or release of the item or information occurs does not matter. Some examples of export activities include: the shipment of items, written or oral communications, hand-carrying items when traveling, providing access to or visual inspection of equipment or facilities, and providing professional services.

A deemed export refers to the release or transmission of information or technology to any foreign national in the U.S., including students, post-docs, faculty, visiting scientists, or training fellows. A deemed export is treated as an export to that person’s home country. Deemed exports are a primary area of export control exposure for the university.

A foreign national is defined as any natural person who is not a U.S. citizen, or is not a lawful permanent resident of the U.S. (i.e., does not have a green card), or who does not have refugee or asylum status.

A foreign entity is any corporation, business, or other entity that is not incorporated to do business in the U.S. This includes international organizations, foreign governments, or any agency of a foreign government.

A dual use item is any item that can potentially have a military application as well as a commercial or civilian purpose (e.g., GPS units).

ITAR stands for the International Traffic in Arms Regulations (22 CFR §§120-130) and they are administered by the Directorate of Defense Trade Controls under the U.S. Department of State. The ITAR governs all military, weapons, and space related items and services as enumerated on the U.S. Munitions List (USML).

EAR stands for the Export Administration Regulations (15 CFR §§730-774) and they are administered by the Bureau of Industry and Security (BIS) under the U.S. Department of Commerce. The EAR governs the export of most items in the U.S., especially dual use items as enumerated on the Commerce Control List (CCL).

The EAR controls all items (commodities, software, or technology) that are 1) of U.S. origin; or 2) are made with U.S. materials, technology, or know-how; or 3) are located in the U.S. AND that are NOT under the exclusive jurisdiction of another regulatory body (e.g., ITAR or Nuclear Regulatory Commission) or that are NOT shielded from export controls under the Fundamental Research, Educational Information, or Public Information exclusions.

OFAC stands for the Office of Foreign Assets Control (31 CFR §§500-599) and is an office under the U.S. Department of the Treasury. OFAC is responsible for enforcing the foreign policy of the U.S. government, including all trade sanctions, embargoes, and financial interactions with prohibited or blocked individuals or entities. For more information, see a listing of OFAC Country Sanction programs.

Fundamental Research is defined by the National Security Decision Directive 189 (NSDD189) as “any basic or applied research in science and engineering, the results of which are ordinarily published and shared broadly within the scientific community…” In order to qualify as Fundamental Research, the research must be conducted free of any publication restrictions and without any access or dissemination restrictions.

Research that qualifies as Fundamental Research is NOT subject to export controls as provided for under the federal regulations (15 CFR§734.8). It is critical to note that the Fundamental Research Exclusion will be lost if a researcher agrees to any “side-deals” allowing sponsors the ability to review and approve publications or to control access to the project or project results.

Loss of the Fundamental Research Exclusion can quickly put your research in jeopardy of non-compliance with export controls.

Maybe. To qualify as Fundamental Research, research must be based at an accredited institution of higher education located in the United States.

If your research includes work done outside the U.S., it may not qualify for the Fundamental Research Exclusion. This does not automatically mean that export licenses will be required, but it does mean that an export control determination needs to be done before the work begins.

Not automatically. While research results developed or generated under the Fundamental Research Exclusion are exempt from export controls and can be freely shared with foreign nationals both here and abroad, any materials, items, technology, or software generated as a result of the research ARE NOT exempt from export controls.

Before shipping or taking any item abroad, an export control determination needs to be done to determine if an export license is required to take or transfer the item.

Information that is normally taught or released by the university as part of the normal instruction in a catalog course or in an associated teaching laboratory is considered Educational Information and, as provided for under the federal regulations (15 CFR§734.9), is NOT subject to export controls.

Information that is already published or is out in the public domain is considered public information and, as provided for under the federal regulations (15 CFR§734.7 and 15 CFR§734.10), is NOT subject to export controls. Examples of information in the public domain include:

• Books, newspapers, pamphlets
• Publically available technology and software
• Information presented at conferences, meetings, and seminars open to the public
• Information included in published patents
• Websites freely accessible by the public

The following are examples of the types of university activities that may trigger the need for an export license or deemed export license:

• Research in controlled or restricted areas (e.g., defense items or services, missiles, nuclear technology, satellites, chemical/biological weapons, encryption)
•  
• Research involving the use of export restricted information obtained from external sources
•  
• Research involving collaborations with foreign nationals here at NJIT or overseas
•  
• Research involving travel or field work done overseas
•  
• Research involving the transfer or shipment of tangible items or equipment overseas
•  
• Presentations at meetings or conferences of unpublished information not protected under the Fundamental Research or Educational Information exclusions
•  
• Research involving the provision of financial support or services outside the U.S.

Determining when you need an export license can be very complicated. Consult the SRA Office.

An Export License Exception is a special authorization that allows you to export or re-export, under very specific conditions, items that would otherwise require an export license. Export License Exceptions are detailed in EAR§740.

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, 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

Research conducted at NJIT that includes or uses export controlled or restricted information or items obtained from an outside entity does not qualify under the Fundamental Research Exclusion and would be subject to all export controls.

Yes, export controls apply to all U.S. persons, at all times. It is important that you understand and comply with your obligations under export control regulations. If you are consulting in a restricted technology area (e.g., on dual-use technologies or select agent work), then you may need an export license depending on where you are going, what information you are providing, who you are providing it to, and what they intend to do with it.

If the destination or end-user is a foreign national of a sanctioned country (especially Iran, Syria, Cuba, Sudan, or North Korea), then in most cases any consulting activities would be prohibited regardless of the subject matter. For more information, see a listing of OFAC Country Sanction programs.

Yes, under the current federal regulations, Federal Register vol. 72, 50047-50052 (see section 560.538), all activities normally incident to publishing are allowed with Iranian citizens as long as the Iranian author is not a governmental official or working on behalf of the government of Iran.

Academic and research institutions in Iran and their personnel are not considered governmental employees or representatives for the purposes of the regulations. This would be true for citizens from the other sanctioned countries as well.

NJIT provides access to the Citi training programs. For more information, go to: http://jhw.au99168.com/research/compliance/citi-software.php.