Compliance

Export Controls

Applicable Laws and Regulation

Arms Export Control Act (AECA), 22 U.S.C. §2778

Export Administration Act (EAA), 50 U.S.C. App. §§2401-2420

Trading with the Enemy Act (TWEA), 50 U.S.C. §§1-44

International Emergency Economic Powers Act (IEEPA), §§1701-1706

ITAR, 22 C.F.R. §§120-130 (first section on page)

EAR, 15 C.F.R. §§730-774

OFAC, 31 C.F.R. §§500-597

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

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: Step 1 – Campuses should designate one person to monitor deemed export compliance in each department that employs or plans to employ foreign workers under an H, L or O visa; Step 2 – Departmental designees must familiarize themselves with the I-129 requirements—especially export control regulations (EAR3 and ITAR4)—and determine which elements of their departments, if any, use technology that is subject to regulation. Consultation with legal counsel and outside training may be required, but most departments, and possibly whole campuses, are likely to determine that they do not have any restricted technologies; Step 3 – Campuses should institute procedures to ensure that the departmental designee is aware of any decision to employ a foreign worker; Step 4 – For each proposed foreign worker hiring, the departmental designee should evaluate the potential that the worker will have access to restricted technology and, if necessary, whether restrictions to such access apply based on the workers nationality; Step 5 – If the potential for legal restrictions on the potential employee's access to certain technology exists, the designee must determine: (a) the feasibility of using preventive measures (i.e. access controls) to ensure that export control rules are not violated; or, (b) the likelihood that a license can be obtained in a reasonable period of time to allow the necessary access to take place; Step 6 – If the department decides to proceed with the hire, the designee should complete the "I-129 Request" form and submit it to the campus office responsible for processing I-129 petitions. Only when this form has been completed can the office responsible for completing and signing the I-129 do so. If necessary, the designee should also begin working with the applicable campus authority to apply for required export licenses; Step 7 – The departmental designee must continue to monitor foreign nationals working in the department to ensure that changes in job functions or departmental operations do not pose a risk of the employee accessing restricted technology.(see memo for further detail).

SUNY General Counsel's Office Deemed Export FAQ

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, .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.

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 or the SUNY Compliance Administrator.  For legal advice, consult your lawyer.