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University personnel who participate in the procurement of materials, equipment, software, biologics, and other items can help facilitate understanding around export controls. The simple use of most equipment on campus does not constitute a deemed export to foreign nationals. However, in-depth knowledge and responsibility for the maintenance, assembly, repair, construction of, or operation of equipment may constitute a “use” under export regulations that could require a deemed export license. Additionally, access to ITAR-controlled equipment (i.e. equipment developed for a military purpose) requires access restrictions for all foreign nationals.
Prior to completing a purchase, University procurement personnel should ensure that export classifications (ECCN or USML category) are clearly understood for each purchased item. Often manufacturers of items will provide the export classification of purchased items, but please contact Export Control with questions or for help determining the classification of purchased items.
Procurement personnel should also review and answer the following questions before initiating a procurement transaction:
1. What items and research areas might trigger export controls?
In general, export-sensitive items (which can include instruments/components, software – executable or source code, raw or fabricated materials, or proprietary vendor or third-party information) are largely associated with the following research departments and disciplines:
- Agriculture and life sciences
- Engineering (all disciplines)
- Marine/Coastal Science
- Geography/Geo-spatial sciences
2. How do export controls work?
Items (instruments, software, materials information) may be export controlled either under the Export Administration Regulations’ (EAR) Commerce Control List (CCL dual use items) or as defense items under the International Traffic in Arms Regulations (ITAR) U.S. Munitions List (USML defense items).
- Dual use items (civil by design but could inherently have a defense capability) that are controlled under the CCL are designated with Export Control Commodity Numbers (ECCNs), for example 6A002.a(1). If an item has no ECCN control, it is classified as EAR99.
- ITAR USML Items (those specially designed or modified for defense purposes) are designated by Roman numeral Categories I-XXII and further delineated through various alphabetized sub parts (for example, Category VIII(a)). ITAR items are the most critical concern, because the State Department tightly restricts foreign national access to an ITAR item, regardless of whether or not there is an intention to use the item or an understanding of how to use it. This can include visual access in the laboratory environment. EAR restrictions on the other hand, are “use-based” restrictions: access to and use of the item is generally not at issue, absent certain other activities (e.g. installation, repair, maintenance, etc., and/or exposure to a vendor’s proprietary export control design information).
- ITAR restrictions operate even in the context of open laboratory, fundamental research projects pursuant to which no other citizenship or publication restrictions have been accepted. Therefore, because of the access threshold, it is essential to understand whether an item is specifically ITAR controlled prior to its incorporation into the research environment. The fact that the item can be purchased commercially does not remove its controlled status. Buyers, licensees or other types of recipients of ITAR items remain responsible for managing the applicable international transfer and foreign national restrictions.
3. What types of items are of export control concern?
Dual Use Items – EAR (Export Administration Regulations): civil but capable of a defense function
Note: Ordinary laboratory consumables and standard office supplies, including business computers, can be ignored. Exception: High Performance Computing (HPC) computational or storage units and related information security features are within the scope of inquiry.
Instruments of concern are those designed to accomplish a particular specialized purpose such as analytical, detecting, imaging, measuring, positioning, or other specialized scientific purpose; radiation safety equipment; any item radiation-hardened. Software of concern includes executable code that operates the foregoing types instruments, as well as certain analytic, computational, imaging and simulation software; proprietary (non-published) source code; biological materials (including Biosafety Level 2+ materials). An illustrative list (though by no means comprehensive) includes the following:
- Gas monitoring and filtration devices
- Precision tooling and optical lens instruments
- Semi-conductor substrate development and lithography equipment
- Microcircuits (including but not limited to FPGAs)
- PDK design kits
- Sensors, infrared light detectors, and focal plane array detectors)
- Nuclear/radioactive transport or shielding devices
- Class 3 and 4 lasers
- Fiber optic cables and filaments
- Unmanned Ariel Vehicles (UAVs)
- Navigation equipment and inertial navigation units
- Remote Operating Vehicles (ROVs)
- Componentry for satellite-based research
- Biological Materials: any item subject to Bio-safety Level 2 containment regulations and/or hazardous materials protocols
- Technical Data: any data (information) marked as “Proprietary” and/or “Export Controlled” by the vendor, including but not limited to non-published repair manuals.
- Software: any source or executable code marked as “Proprietary” and/or “Export Controlled” by the vendor/licensor.
Defense Items – ITAR (international Traffic in Arms Regulations): specially designed or modified for a defense function
For illustration purposes, ITAR items can include the following:
- Night vision goggles for marine mammal detection
- Explosives and detonation equipment and materials
- Infrared cameras
- IMUs/INS systems
- US government owned DOD arrays
- UAV’s designed for defense purposes/related navigation software
- Military communications systems and high frequency radio apparatus
- Antenna and radar applications
- Military electronics and ruggedized components
- Submersible vessels
- Launch Vehicle apparatus
- Defense navigation and avionics
- Materials, biologicals and equipment used in anti-bioterrorism research
4. How are export controlled Items identified in the procurement process?
Step 1: PIs, lab managers and procurement personnel teams should be alert to whether the vendor (or licensor – in the case of leased instruments or licensed software) has disclosed in the procurement or sales documentation whether the item is ITAR or EAR-classified. In some cases, vendors affirmatively notify the buyer of export control classification (whether it is an EAR ECCN or an ITAR USML Category Number), by incorporating the information on the following types of documentation:
- In quotation documentation or on the Purchase Order or analogous purchase documentation (Master Purchase Agreement)
- On the commercial invoice that accompanies the item
- On a product specification web page
- On a Certification issued by the vendor (requiring FIU to acknowledge in writing the export controlled status of the item)
- On an electronic notification form or letter
- On the soft copy of an operational manual
- Software license (or related Terms/Conditions)
Step 2: In the event that there is no ITAR or EAR notification, and with respect to the types of types referenced above, purchasing personnel should request the vendor or licensor to confirm whether or not the item is export controlled. In order to present this inquiry systematically, purchasers can inquire verbally or through email: “Is this item export-controlled under the ITAR USML or EAR CCL? If YES please indicate which USML Category or ECCN classification is applicable. If NO, please indicate.” Supplier responses to verbal inquiries should be documented by email.
5. What steps should be taken if an ITAR item is identified?
- When the Supplier indicates that an items is ITAR-controlled, immediately contact the Office of University Compliance and Integrity – Export Control (hereinafter referenced as “Export Control”) so that proactive measures can be taken; this may include a discussion about whether it may be beneficial to identify a non-ITAR controlled item that can essentially serve the same purpose and which would no trigger foreign national access restrictions or, if not, what safeguards (Technology Control Plan) is appropriate for compliance purposes.
- If, as of this Guidance, an ITAR item has already been purchased but has not yet been received into inventory, please contact Export Control immediately so that appropriate security measures can be implemented.
6. What steps should be taken if an EAR item is identified?
When the supplier indicates that an item is EAR controlled (with an ECCN other than EAR99), and there is accompanying technical data (e.g. installation, repair, maintenance information) that the supplier identifies export controlled; or there is software identified as export controlled, immediately contact Export Control which will assist in the appropriate management of such item and data.
7. What happens when we are designing an item and are transferring “build-to-spec” data to an international Supplier that will ultimately lead to the import of the finished item?
If the item being built abroad based on the transferred data might (or definitively meets) the criteria of having a specialized scientific research purpose (see Sections 4.1 and 4.2 above), contact Export Control prior to transferring such data Export Control will conduct a quick review to confirm whether export authorization is required.