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Export Control FAQs

Definition of Deemed Export vs. Regular Export

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.

What are limitations of the fundamental research exclusion?

The University of Florida is a public institute of higher education whose mission consists of education, research and service. As a large, comprehensive, land-grant, research institution and a US institute of higher education, most research, teaching, or service at the University of Florida will appropriately fall under the fundamental research exclusion, the publicly available/public domain exclusion, the education exclusion or a combination of the three.

In order for research to fall under the fundamental research exclusion the following conditions must be met:

  1. No publication restrictions have been accepted as part of the associated sponsored research agreement or outside of the sponsored research agreement either verbally or in writing.
  2. No foreign national restrictions have been accepted as part of the associated sponsored research agreement or outside of the sponsored research agreement either verbally or in writing.
  3. The scope of the project constitutes either basic or applied research as defined below:
    • Basic Research is undertaken primarily to acquire new knowledge without any particular application or use in mind.
    • Applied Research is conducted to gain the knowledge or understanding to meet a specific, recognized need.
  4. The scope of the project does not constitute development as defined below:
    • Development is the systematic use of the knowledge or understanding gained from research directed toward the production of useful materials, devices, systems, or methods, including the design and development of prototypes and processes.
  5. The research project must be conducted at a US accredited institution of higher learning in the United States.

What is a Commodity Jurisdiction (CJ)?

A Commodity Jurisdiction (“CJ”) is a determination on whether a project, item, software, information, service, etc. is subject to the International Traffic in Arms Regulations (ITAR) or another set of US Government regulations such as Export Administration Regulations (EAR). It is the responsibility of the person(s) developing the technology, conducting the research, exporting the item, and/or providing technical data/defense services to a non US person to make this determination after reviewing the United States Munitions List (USML) and the relevant sections of the International Traffic in Arms Regulations (ITAR). If after reviewing the USML and relevant sections of the ITAR one is unable to make this self-determination, an official CJ Request should be submitted to the US Department of State (State). Upon receipt State will process the request and make an official determination that will be issued to the requesting party. During the CJ process the item subject to the CJ, whether it is research, an item, information or a service will need to be treated as ITAR controlled with all the appropriate security measures in place. It is always advisable to either make a self-determination or obtain a CJ from State prior to commencing the effort in question so that one does not inadvertently export/release the information, item or provide a defense service in violation of the regulations.