The following FAQs represent some of the most commonly-encountered scenarios and questions. Expand each question using the “+” to see the answer. Included among the answers are links to the relevant sections of the export control website. If you do not find your particular question raised here, please contact the Export Office for assistance.
- Can I work on export controlled projects remotely?
Yes. Many researchers are working remotely to continue research during the current situation. If you are performing work that qualifies as Fundamental Research, no additional safeguards are necessary. If you are working with export-controlled technical data, it is necessary to safeguard export-controlled information to the same extent as would be necessary while present in our campus laboratories and offices. Please refer to your Technology Control Plan (TCP) for security safeguards. If those safeguards do not align to your particular remote working situation, please contact ORED’s IT security specialist for assistance.
In general, in order to prohibit access by unauthorized individuals:
- Be aware of your surroundings and prohibit visual access by others in your vicinity.
- Access export-controlled information through FIU-established VPN or SSH cloud services. Do not use any 3rd party services that are not FIU accounts (such as personal email, cloud storage, home computers, etc.).
- Do not store export-controlled information on any devices that do not meet the appropriate FIU security standard.
- If there is a need to access work from outside of the United States, contact our office immediately for specific guidance.
- I have been asked to sign an NDA by my sponsor as a prerequisite for my research. What are the export control implications?
The Fundamental Research Exclusion (FRE) only applies to technology or software that arises during (or results from) fundamental research and that is intended to be published. Thus, proprietary information received under a Non-Disclosure Agreement (NDA) is subject to the export control regulations; depending on the content, the information may or may not be controlled for certain foreign nationals or international transfer.
Only an institutional representative (for example, an ORED official) is authorized to sign an NDA. ORED has an established process for submitting NDAs on behalf of FIU as well as receiving and reviewing external party NDAs as part of any potential or existing research agreement or engineering services contract. If approached by an industry sponsor to sign its NDA, please consult ORED to work through the appropriate process and details.
- I intend to send a research instrument component and related firmware to an international collaborator. What do I need to do in advance of the export?
Please click on the following link for FIU’s International Shipping Request Form and complete the brief set of fields that will enable the Export Office to classify the item(s) for export licensing purposes to your particular destination. In the rare situation that the Department of Commerce or State requires an export license prior to shipment, the Export Office will require at least 60 days advance notice to prepare and submit the license application for approval. The Export Office will also screen all international consignees through Visual Compliance to ensure the FIU is not inadvertently engaging with a U.S. Government restricted party .
- What about sending information i.e. technical data, to an international research collaborator either by courier (FedEx) or electronically?
If the information is purely the result of (or part of) fundamental research, there are no export requirements involved. However, if the information - regardless of whether it is in hard copy or digital form is in any way proprietary to FIU or an external party, or is not the result of a fundamental research project, then it is necessary for the Export Office to conduct a prior review. Again, please utilize the International Shipping Request Form to proactively facilitate this export transaction.
- I need to send sweatshirts to several prospective students abroad. Do export controls apply when shipping non-technical items?
Yes. Even basic items are subject to export controls. Prior to shipping your item, please complete FIU's International Shipping Request Form and submit it to the Export Office for assistance.
- Do I need to be concerned if the item that I plan to export can be purchased abroad?
Yes. Commercial availability does not remove an article from export jurisdiction and a potential licensing requirement. Regardless of whether you are shipping the item abroad, carrying it with you when you travel, or purchasing the item abroad, the same export review questions apply. Please complete FIU’s International Shipping Request Form and submit it to the Export Office for assistance.
- Do I need to wait to export my item until I receive an export license or other authorization?
Yes! Prior to exporting an item, biologic, software, or technical data, you must determine whether the receiving party is a Restricted Party, and whether the things you intend to export require a license for export to that destination. Export control violations carry high civil and criminal penalties, including loss of export privileges, loss of federal funding, significant penalties, and/or jail time.
Prior to exporting an item, commodity, equipment, chemical, biologic, software, encryption, and/or technical data please complete FIU’s International Shipping Request Form and/or contact the Export Office for assistance.
Note: Other requirements may apply to shipments of hazardous materials and biologics. Personnel should check with FIU EH&S for shipments of chemicals, biologics, and other substances that may require specific shipping safety protocols.
- How difficult is it to obtain an export license to ship tangible items, data or software?
Normally and, subject to certain exceptions, it is not difficult to obtain a license. Upon obtaining the necessary details about the export (e.g., nature of the item, purpose/end use, destination, and end user) the Export Office prepares and files the appropriate type of license application ( dual use EAR license or defense categorized – ITAR license). The license application is filed through one of the online U.S. Government agency portals, and we are able to track the government’s approval process. EAR/ITAR licenses are normally issued within 30 to 60 days, though processing times may vary.
Note that where the Government finds the proposed export to have particular national security, biological safety, or nuclear or missile technology implications, the applicable Government agency can deliberate longer over the issuance of the license, referring it for inter-agency review or requesting FIU to provide specific details. Hence, it is critical to allow sufficient time prior to intended export, for the license application to be processed.
Where the license application is intended to cover the provision of a defense service under the ITAR, (i.e. the release in any manner of ITAR technical data to a foreign national or training or assistance to a foreign national using ITAR data), this type of ITAR license can take longer to prepare and longer to process.
- Once we have a license authorization, am I done with the compliance requirements?
No! All export licenses and authorizations carry provisos or conditions which are the Government’s specific restrictions or limitations on the export activity. For example, the Government may require that the recipient of the export provide a Letter of Assurance that they will not transfer or re-export the item beyond the originally licensed country destination. Limitations on the duration of the license, or on access by foreign nationals from certain countries may also apply. Failure to adhere to these provisos results in an enforceable export violation.
- Do exports to every country require an export license?
Not necessarily. Under the EAR dual use regulations, license requirements are on an item by item, country by country basis. As such, your particular item may or may not require a license. Under the ITAR defense regulations, exports to all countries presumptively require a license and, in some cases, depending on the country, the State Department will not, as a matter of policy, issue a license. For example, China is per se a prohibited country under the ITAR USML regulations as a 126.1 country; the State Department will not consider issuing a license of a USML item to China. There are a number of other countries that are likewise prohibited under ITAR. Therefore, it is essential that all exports be cleared by the Export Office.
- Do I need an export license to temporarily ship research equipment or a prototype/sample out of the U.S., for example, for purposes of field research or equipment demonstration?
In some cases, yes. The answer depends on the export control jurisdiction of the item, as follows:
Scenario A: EAR dual use items: if the equipment does not require a license to export it to a country, then no, the temporary export does not require a license. If on the other hand, the item would normally require a license to export abroad, a specific license exemption such as the “Tool of Trade” exemption must apply to the temporary export or otherwise a license is required. The “Tool of Trade” exemption covers temporary exports of “usual and reasonable kinds and quantities” of items for use abroad by the exporter and are utilized for lawful enterprise or undertaking. This exemption (and others like it) has numerous qualifications based on type of export, destination, and duration of export. Hence, it can only be used when all requirements are met.
Scenario B: ITAR USML items: Yes: an ITAR DSP73 license is always required, even if you are only sending or transporting the ITAR equipment to international waters or airspace (i.e. not landing it any particular country); there is no Tool of Trade exemption under the ITAR.
Note: Even if an export license isn’t required for export, some countries will also have import requirements for temporary imports and a carnet or temporary import bond may be required, especially for higher value items. Likewise, even when a license isn’t required, use of a license exception must be indicated on shipping documents.
- Does this mean that teaching foreign nationals (for example FIU graduate students) about something that happens to be listed on the USML (i.e. ITAR) requires a license?
Not necessarily. Where you are teaching or discussing any item in the public domain that happens to be listed on the USML or you have self-invented such information during the course of fundamental research with the intention to publish it, in general there is no license requirement.
However, a license requirement does apply when you are releasing ITAR technical data in the manner of a defense service; i.e. providing technical assistance or training to a foreign national in the U.S. or abroad on design, development, engineering, use, modification, repair, etc. of a defense article (even if the data provided are in the public domain); or providing any technical data to a foreign military organization in the U.S. or abroad, regardless of whether the data or information being transferred is EAR or ITAR-governed or in the public domain.
Likewise, a license requirement would also apply when you are exporting ITAR technical data that you have received from a sponsor (government or industry) or research collaborator under a restricted agreement, even when the overall project performed qualifies as fundamental research. In other words, even if the approved Scope of Work anticipates an international transfer, a license may still be required either by the sponsoring agency or other U.S. Government authority.
- Do I need to be concerned if I’m importing an item into the U.S., i.e., are there import compliance regulations?
Yes. All imported items are subject to U.S. Customs regulations, and may have Customs duty and reporting requirements. In addition, importing items listed on the USML require an ITAR license, unless certain specific exemptions are met.
- What do I do if I’m receiving a pathogen or other type of biologic from abroad?
- Do I need a license to allow foreign national access to laboratory equipment?
In some cases, yes. Assuming the Fundamental Research Exclusion (FRE) applies to the activity in which EAR-classified equipment is being accessed, then generally speaking no license is required. However, there are some narrow exceptions to this rule. Access to:
- certain levels of advanced cryptographic functionality and source code;
- proprietary third party proprietary “use” and “development” technology pertaining to the equipment if it in fact is controlled or
- certain avionics and space research items
In addition, if there is an ITAR item also being used in the laboratory, access to that item also may be restricted under the TCP associated with that item.
- How does having an ITAR item (i.e. capabilities listed on the USML as a defense item) in my laboratory affect foreign national (student, post doc, staff or visitor) access to it?
If you’ve invented the item in the course of a fundamental research project (i.e. no sponsor restrictions) and publish the results of your invention, there is no access restriction. Physical exports of the item will still require an export license.
However, if you’ve purchased an ITAR item (or otherwise received it from a third party), then access or use of the item is likely restricted and may be subject to license authorization.
The Export Office can work with you to either obtain export licenses for foreign national access, and/or implement a Technology Control Plan (TCP) to restrict access by foreign nationals.
- What if I am a foreign national PI who wishes to access an ITAR item as part of my fundamental research program: am I excluded from access as well?
Yes, with one exception that can potentially be utilized with the assistance of the Export Office as follows. The ITAR allows a PI to access ITAR technical data where:
- the PI is a bona fide, full time employee of the research institution;
- the PI is not a foreign national from one of several specifically prohibited countries (listed in ITAR Section 126.1); and
- the PI meets several other specific criteria.
Assuming the terms of the exception are met, the PI is subject to the same no-transfer restriction that a U.S. person PI is subject to. Hence, this exception is used for accessing background information only necessary to launch or conceptualize contemplated fundamental research, or information specifically approved by the sponsor utilizing the approved license exception. If the research requires data to be shared with the research team which may include foreign nationals, the exception cannot be invoked, since only the PI may qualify under the exception. PIs wishing to explore using this exception must contact the Export Office prior to receiving or accessing any such data.
- Is there any problem with communicating with or assisting a foreign government with respect to our research?
It depends on the situation. If the research involves ITAR or EAR technical data or we are training or assisting the government representative to be able to use any data in a defense context, this may require an ITAR “defense service” license/ agreement. This applies even if the data is already in the public domain.
All foreign government entities should likewise be screened using Visual Compliance to ensure that they are not a restricted party.
- My facility hosts non-FIU personnel (for example, industry partners) as lab “Users” or customers under a Lab-use or engineering service re-charge Agreement. How can we be sure that none of the parties are prohibited for export?
Such external parties should be screened through Visual Compliance at the time of Agreement to ensure that FIU is not inadvertently partnering with any individual or entity identified on a government watch list. Subsequent changes in the Agreement party’s participating personnel would have to be subsequently flagged and screened. See Restricted Parties for information on screening requirements and how to gain access to the screening software. In addition, the Export Control office can assist in identifying any other potential concerns associated with hosting such parties in our FIU research environment.
- When I travel internationally, can I bring my laptop and other hand-held communication devices with me?
Yes, with several exceptions. If, for example, you have downloaded and stored export controlled data (i.e. proprietary data which is not the results of fundamental research or software on your laptop, this would require a license, depending on its EAR or ITAR classification. In addition, the U.S. Government’s OFAC restrictions potentially restrict the export by any means of any article (including laptops or hand-held devices) to certain countries (e.g. Iran) without specific license authorization.
- When I travel internationally, can I hand carry samples or other laboratory instruments?
If EAR (dual use) controlled, such items and/or biologics may or may not qualify under the Tools of Trade exemption, and therefore require prior classification. If ITAR controlled, a license is required.
- How do I remain within the FRE for purposes of the EAR and ITAR when teaching or lecturing abroad?
When teaching or presenting research results abroad, attending professional conferences etc., as long as what is being presented is the results of fundamental research intended for publication or to be published, there is no export license requirement. However, to the extent you depart from this framework and present in any form data which is proprietary to another party, or restricted by the sponsor’s contract or funding mechanism, then the FRE education and conference exclusions no longer apply. Note that when presenting at professional conference, the conference has to be one normally associated with the academic or professional subject at hand and not closed in a way that is contrary to the premise of published fundamental research.
- Does collaborating internationally with another researcher or foreign institution have export control requirements?
Yes, in several respects. The exchange of scientific information with researchers and administrators abroad can trigger control requirements such as end user screening and export licensing for tangible items and software under ITAR and EAR control regimes. In addition, the ITAR regulations include controls on providing a “defense service.” This pertains to providing advice, training assistance, and other release of technical data to a foreign national with respect to an article on the USML or providing same to a foreign national for a military/defense objective with respect to any article, whether or not listed on the USML.
In addition, visiting scholars and researchers who visit FIU as part of the collaboration may likewise need to be restricted from accessing FIU laboratories wherein export-controlled items or data are kept or used.
- I wish to host a visiting scholar in my lab. Do export controls apply?
Potentially, yes. The transfer of export-controlled technical data to a foreign national located in the United States is a deemed export and may require an export license. While the use of EAR dual use controlled equipment in the research environment typically does not pose an export risk unless proprietary, third party export controlled information is involved, foreign national access to ITAR-controlled equipment, items, software, and data without a license or license exception would constitute an export violation. Our topic on Hosting a Visiting Scholar provides more information and guidance in this area.
To begin the export review process for temporarily hosting a potential visiting scholar or hiring a foreign national into a staff position, please consult the HR or FIU Global/ISSS web pages, respectively, for further information about on-boarding a foreign national visa candidate. These processes ensure that the proposed individual (and, as applicable, their home or international funding institution) are screened as early as possible through FIU’s Visual Compliance screening tool. These processes also trigger a deemed export questionnaire that must be completed in order to proactively identify potential deemed export concerns in the laboratory environment in which the visa candidate would be operating. Please contact the Export Office if you have additional questions about these requirements.
- Do fabrication and service activities outside of fundamental research trigger special export control concerns?
Most certainly, yes. Where fabrication or engineering contract service work is being conducted using the university’s physical or human resources (i.e. a separate legal entity does not own or house the activity), it is essential that the PI/Administrator leading or conducting such activity understand the export control implications and requirements prior to such activity occurring.
- What if the fabrication and service activities are being conducted through an independently-owned spin-off entity, i.e. FIU does not own the activity nor is it the entity disclosing any data being used?
Where a FIU PI or administrator has spun-off or is working for a separately organized company to perform contract services independent of his/her research or teaching position at FIU, the activity conducted by this company cannot be conducted using the university’s physical resources (including laboratory space) or human resources (unless by separate contract). In these cases, such activity – which is outside the scope of the university’s fundamental research exclusion – may trigger export control requirements for which the University will not be legally responsible.
In such situations, it is necessary for the separate legal entity to seek separate counsel pertaining to export control compliance obligations. As noted above, the bona fide employee exemption under ITAR allowing a foreign national faculty member access to ITAR data does not apply or carry over to ITAR work or access to controlled instruments or data provided by and conducted through a separate proprietary entity.
- I’ve heard the term “foreign influence” from several colleagues. What does the term mean, and how does it apply to me?
Generally speaking, the term “foreign influence” refers to a set of actions carried out by a foreign entity against a U.S. party/parties, by which the foreign party positions itself to obtain a benefit not intended for it (potentially by illegal means). “Foreign influence” is often used to illegally obtain U.S. intellectual property and technology, compromise U.S. computer systems, and/or affect the course of U.S. research to benefit the foreign instigator(s).
Cases involving potential or actual foreign influence are frequently in the news, and federal law enforcement agencies are closely scrutinizing higher education. Increasingly, federal agencies and research sponsors require reporting of a variety of data in order to review for potential foreign influence in sponsored research.
To address this issue and assist personnel in understanding their responsibilities, FIU has developed a Foreign Influence and Global Risk Task Force. The Export Office has pulled together initial resources; please review our topic on Foreign Influence. Likewise, questions should be directed to the Office of University Compliance which, along with the Export Office, supports FIU’s Task Force strategy.