Export Controls

Export Controls

What are 'Export Controls'?

'Exports' are any items (e.g., commodities, software, technology, certain materials, devices and technical information related to such materials and devices) sent from the U.S. to a foreign destination. Exports include the release or sharing of restricted technology or data with foreign nationals inside or outside the U.S. (including oral sharing of data).

'Export Controls' are the U.S. federal laws and regulations that restrict the flow of exports outside the United States or to foreign persons within the United States. The laws and regulations require federal agency approval before the export of controlled items (exports) to restricted foreign countries, persons and entities (including Universities).

Why do Export Controls Exist? The U.S. Government Export Control laws and regulations exist to protect national security and foreign policy interests.

Deemed Exports:  An export of technology or source code (except encryption source code) is "deemed" to take place when it is released to a foreign national within the United States.


Applicable Laws and Regulation

Export License Resources

A relatively small percentage of total U.S. exports and reexports require a license from the Bureau of Industry and Security (BIS).  License requirements are dependent upon an item’s technical characteristics, the destination, the end-user, and the end-use.

The BIS states that you, as the exporter, must determine whether your export requires a license.

When making that determination, the following factors must be considered:

What are you exporting?
Where are you exporting?
Who will receive your item?
What will your item be used for?

"Items" in the campus setting are usually information, whether it be information derived from research or a study, or a faculty member publication.

Campuses should contact their General Counsel and the campus International Departments to make a determination as to whether or not the export will require a license.

Do you need to apply for an Export License?

For questions about whether or not you need to apply for an Export License, see the U.S Bureau of Industry and Security Frequently Asked Questions Guide to Export website.

"A U.S. export license requirement from the Department of Commerce can be triggered by several important factors specific to your transaction: the actual item (commodity, software or technology) being exported, where it is going, who is going to use it, and what they will be using it for. If any of these factors change in your transaction, the license requirements may change."

"The Department of Commerce does not regulate all goods, services, and technologies. Other U.S. Government agencies have export control responsibilities for regulating more specialized exports. For example, if you are shipping military goods, your item may be subject to the licensing jurisdiction of the Directorate of Defense Trade Controls at the Department of State. The Treasury Department’s Office of Foreign Assets Controls (OFAC) administers and enforces economic and trade sanctions against targeted foreign countries, terrorism sponsoring organizations, and international narcotics traffickers."

How to Apply for an Export License:

See Bureau of Industry and Security Website on how to apply for an export license

I-129 – Deemed Export Attestation Resources

Deemed Export Attestation
Memo from the SUNY Office of General Counsel (University Counsel in 2010) regarding the new I-120 Export Attestation Form, 2010

Memo advised campuses to complete the following steps:

SUNY General Counsel's Office Deemed Export FAQ

Information on Export Attestation for Form I-129,
January 2011, by Colleen L. Caden and Jeffrey C. Johnson, Pryor Cashman LLP

Training

The SUNY Research Foundation conducts regular training for principal investigators.

The Office of General Counsel is also available for consult on individual basis.

References to Best Practices and Other Supplemental Materials

Introduction to the Commerce Departments Export Controls,
U.S. Department of Commerce Bureau of Industry and Security

"The Bureau of Industry and Security (BIS) is responsible for implementing and enforcing the Export Administration Regulations (EAR), which regulate the export and reexport of most commercial items. The EAR do not control all goods, services, and technologies. Other U.S. government agencies regulate more specialized exports. For example, the U.S. Department of State has authority over defense articles and defense services… This overview is designed to give people who are new to exporting, and, in particular, new to export controls, a general understanding of our regulations and how to use them. However, nothing provided here can substitute for consulting the EAR. The EAR include answers to frequently asked questions, detailed step-by-step instructions for determining if a transaction is subject to the regulations, how to request a commodity classification or advisory opinion, and how to apply for a license.”

Guidance on the Commerce Department's Reexport Controls,
U.S. Department of Commerce Bureau of Industry and Security

"The United States Department of Commerce regulates exports and reexports of “dual-use” items, i.e., goods, software and technologies with commercial and proliferation/military applications, through its Export Administration Regulations (EAR). If you are outside the United States and wish to export or reexport an item that is of U.S. origin or that has a U.S. connection, your product may require a license from the U.S. Department of Commerce’s Bureau of Industry and Security (BIS). This overview is designed to give an understanding of our regulations and how to use them."

SUNY Research Foundation Export Controls Website

The SUNY RF maintains an excellent resource page related to Export Controls, and specifically, an Export Controls overview for Principal Investigations in the research context

Deemed Export Resources

Deemed Export Frequently Asked Questions, Deemed Export License Resource, Bureau of Industry and Security website on how and when to apply for a 'Deemed Export' license

Deemed Export Regulation Q&A, Bureau of Industry and Security website

Deemed Export Process Improvements and Guidance on Renewals and Upgrades, Bureau of Industry and Security Website

Guidelines for Preparing Export License Applications Involving Foreign Nationals, Bureau of Industry and Security Website

Certification Pertaining to the Release of Controlled Technology or Technical Data to Foreign Persons in the United States, Bureau of Industry and Security Website

How to Request an ECCN

Export Controls Classification Number (ECCN) Guidance,
U.S. Department of Commerce Bureau of Industry and Security 

"An Export Control Classification Number (ECCN) is an alphanumeric designation (i.e., 1A984 or 4A001) used in the CCL to identify items for export control purposes."... "An ECCN categorizes items based on the nature of the product, i.e. type of commodity, technology or software and its respective technical parameters.... If your item is subject to the jurisdiction of the U.S. Department of Commerce, you should first determine if your item is designated by an Export Control Classification Number (ECCN) on the Commerce Control List (CCL). The ECCN is a key factor in determining whether you need a license to export dual-use items outside of the U.S.."  The guidance document clarifes how to request an ECCN.

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The information contained on the SUNY Compliance website is for general campus guidance only and is not intended, nor can be relied upon, as legal advice or the imposition on SUNY campuses of specific policies or requirements. The site is intended to be an informational-only clearinghouse for some of the laws, rules, and regulations that may impact the State University of New York’s campuses. Additionally, given the rapid, changing nature of laws, rules and regulations, there may be delays or omissions contained on this site which therefore cannot be relied upon as complete. For complete compliance information, consult your campus compliance officials. For legal advice, consult your lawyer.

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