What are export controls?
Export Controls are United States laws that regulate the distribution to foreign nationals and foreign countries of strategically important technology, services and information for reasons of foreign policy and national security. Although there are several export control and/or sanctions related regulations the ones most impacting University of Florida efforts include the International Traffic in Arms Regulations (ITAR), the Export Administration Regulations (EAR), the Department of Energy (DOE) regulations 10 CFR Part 810, the U.S. Nuclear Regulatory Commission (NRC) regulations, and the laws and regulations implemented by Office of Foreign Assets Control (OFAC).
Which U.S. Government Agencies are Responsible?
The International Traffic in Arms (ITAR) is under the purview of the U.S. Department of State. The ITAR regulates items, information, software, and services that are inherently military in nature. Specifically, Defense Articles, Technical Data and Defense Services are controlled under the ITAR.
The Export Administration Regulations (EAR) is under the purview of the U.S. Department of Commerce. The EAR regulates items, information, software and services that are dual use (i.e., predominantly civil applications but may also have military applications) or are strictly civil in nature.
Office of Foreign Asset Control (OFAC) is under the purview of the U. S. Department of the Treasury. OFAC regulates financial transactions with, provision of material resources to, activities in and with persons from embargoed/sanctioned countries, persons and entities. OFAC also regulates travel to and within Cuba.
10 CFR Part 810 Assistance to Foreign Atomic Energy Activities (Part 810) is under the purview of the U.S. Department of Energy. Part 810 regulates the involvement of U.S. persons in civil nuclear fuel cycle activities directly or indirectly outside the United States.
10 CFR Part 110 Export and Import of Nuclear Equipment and Materials (Part 110) is under the purview of the Nuclear Regulatory Commission. Part 110 prescribes licensing, enforcement, and rulemaking procedures and criteria, under the Atomic Energy Act, for the import and export of nuclear equipment and materials.
What is an Export?
An ‘export’ occurs whenever controlled technology, technical data, software, materials, equipment, technical assistance or defense services are disclosed in any medium or manner outside of the United States, or to a foreign person no matter where located. If an export of technical data, technology, or software to a foreign person occurs within the U.S. (even on Campus), that action is termed a “deemed” export. The US government has deemed that the ‘release’ of the controlled technical data, technology, or software to the foreign person is the equivalent of providing it to the foreign person’s country of citizenship, permanent residency or in some cases the foreign person’s country of birth. Under official guidelines issues by the Department of State
Technology, software, or technical data is ‘released’ for export through:
- visual inspection by foreign national of controlled equipment, materials, data or facilities,
- oral exchanges of information in the United States or abroad,
- transfer or shipment via any means (physical or electronic) to a foreign entity
- providing a service, or the application to situations abroad of personal knowledge or technical experience acquired in the United States
What is a “Deemed” Export?
Although the term ‘Deemed Export’ is only defined in the EAR the concept also applies to the ITAR and Part 810 regulatory schemes.
Under the EAR the release of EAR controlled ‘Technology’ or source code software to a foreign person in the United States is a deemed export. Further Technology is specific information necessary for the ‘Development’, ‘Production’, or ‘Use’ of a commodity subject to the EAR. For the most part a foreign person can have access to and operate equipment identified on the Commerce Control List (CCL).
The ITAR, however, has a much broader definition of the ‘Deemed Export’ concept. Under the ITAR access to or provision of ‘Technical Data’ or ‘Defense Services’ as well as access to ‘Defense Articles’ are licensable activities. As such, under most circumstances, a license must be obtained prior to a foreign person obtains access to any information, item, material, or software located on the United States Munitions List (USML).
What are sanctioned transactions?
Sanctions are prohibitions on financial transactions with; provision of material resources to; or activities in and with countries, entities or individuals designated by OFAC.
Why should I be concerned about an export?
UF employs foreign nationals; collaborates with international partners on research, education and services; and hosts foreign visitors and international students in connection with international exchange programs as well as other academic, research and collaboration agreements. It is the intent of UF to employ foreign nationals, collaborate with foreign nationals and host international visitors, both long and short term, in the most welcoming manner possible while also assuring compliance with U.S. laws and and regulations. Access to restricted or export controlled technology, commodities, defense articles and defense services by an unauthorized foreign person could result in severe criminal or civil penalties for the university and any university employee involved with the export violation. Prosecution of an export violation may result in fines of up to $1M and/or a prison sentence of up to 20 years per violation.