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Exports

In terms of exports, there two main categories (section 734.13 of the EAR):

  • actually shipping, carrying or transmitting something out of the country
  • releasing or otherwise transferring information/technology or source code (but not object code) to a foreign person in the United States (which is known as a “deemed export”)
      any release in the United States of “technology” or source code to a foreign person is a deemed export to the foreign person's most recent country of citizenship or permanent residency

The reasons for export control are specified for each ECCN, and then you match up the reason for control with the applicable country in the Commerce Country Chart. If there is an “X”, then you need an export license……or need to see if a license exception applies (the EAR has various license exceptions).

ECCN Example 1

Let's say a researcher wants to send rabies virus to a collaborator in France. The ECCN for rabies virus is 1C351.a.39 (see Category 1 of the Commerce Control List). ECCN 1C351.a.39 is controlled for CB and AT reasons. CB is an abbreviation for export controls in connection with the proliferation of chemical and biological weapons. AT is an abbreviation for export controls in connections with anti-terrorism. 1C351 also tells us that relevant columns in the Commerce Country Chart are CB Column 1, and AT Column 1. There is an “X” next to France in CB Column 1, meaning an export license is required to send rabies virus to France. In this situation, please contact Josef Mejido, the University’s Export Control Officer, for assistance.

ECCN Example 2

Let's say a researcher wants to send a mass spectrometer to a colleague in the Czech Republic. Mass spectrometers have an ECCN of 3A999 (see Category 3 of the Commerce Control List), and are controlled for AT reasons. There is a note in 3A999 that the Commerce Country Chart is not to be used for determining export license requirements under this ECCN; and instead specifically states an export license is required for 3A999 items to North Korea. Given that the specific export restrictions for 3A999 only apply to North Korea, and that the Czech Republic is not listed in Section 746 of the EAR which deals with embargos and other special controls, we can send the 3A999 mass spectrometer to the Czech Republic without an export license.

The above two examples deal with physically sending out of the U.S.; they are what people typically think of when they hear the term “export”. Also, please keep in mind that we should do restricted party screening on each of the recipient institutions and end-users in the above examples, to make sure there are no applicable OFAC, export, or other government imposed restrictions on any of the parties. Also, we would also need to determine if an EEI / AES filing is required.

Deemed exports under the EAR.

Now let's look at “deemed exports”. Deemed exports are a tricky subject matter, and also require review of several sections of the EAR to have a complete understanding. A deemed export is defined under the EAR as ‘releasing or otherwise transferring “technology” or source code (but not object code) to a foreign person in the United States…’ (section 734(a)(2)). Also, ‘Any release in the United States of “technology” or source code to a foreign person is a deemed export to the foreign person's most recent country of citizenship or permanent residency.’ (section 734(b))

The following are definitions taken from the Definition of Terms section of the EAR (section 772):

A foreign person under the EAR is ‘[a]ny natural person who is not a lawful permanent resident of the United States, citizen of the United States, or any other protected individual as defined by 8 U.S.C. 1324b(a)(3).’

Export controlled “technology” under the EAR is defined in the General Technology Note: ‘"technology" that is "required" for the "development", "production", or "use" of items on the Commerce Control List is controlled according to the provisions in each Category.’

  • The definition of “technology” under the EAR can be distilled to mean something along the lines of technical information about an item.
  • “required” under the EAR means “…only that portion of “technology” or “software” which is peculiarly responsible for achieving or exceeding the controlled performance levels, characteristics or functions. …”
  • “development” and “production” have definitions somewhat similar to dictionary definitions.
  • “use” however has a very unique definition under the EAR. “use” technology under the EAR requires all 6 of these elements: “Operation, installation (including on-site installation), maintenance (checking), repair, overhaul and refurbishing. (emphasis added)

ECCN Example 3

Operating EAR controlled software in the U.S.

Let's say you have software that is subject to the EAR, in which you only have access to the object code In other words, you do not have access to the source code. In this case, a foreign person just operating the software in the U.S. is not an export because there is no transfer of “technology” or source code.

ECCN Example 4

Biological research in the U.S. using EAR controlled viruses, bacteria, toxins for fundamental research:

Let's say you are performing fundamental research on Lymphocytic choriomeningitis virus (LCMV). LCMV has an ECCN of 1C351.a.27. Do we need a deemed export license for a foreign person to work on this fundamental research project at the University using LCMV? Generally, the answer is no. In other words, a foreign person can use the EAR controlled virus for fundamental research at the University. (see guidance from the Bureau of Industry and Security, U.S. Department of Commerce on Deemed Exports and Fundamental Research for Biological Items).

ECCN Example 5

Operating EAR controlled equipment in the U.S.

Let's say you have an EAR controlled piece of equipment on campus at the University. For example, a camera having an ECCN of 6A003, or even an Apple MacBook which has an ECCN of 5A992.c.

Generally speaking, a foreign person merely operating an EAR controlled piece of equipment in the U.S. is not a deemed export.



Important considerations to always keep in mind about potential deemed exports on campus at the University:

  • While an item may be ‘export controlled’, there may be no deemed export risk for a foreign person to operate the item in the U.S. (see ECCN examples 3, 4, and 5 above)
    • For example, many cell phones are export controlled (ECCN 5A992.c.)
    • HOWEVER, if the item is ITAR controlled or controlled under the 9x515 and 600 series of the EAR, please contact Josef Mejido, the University’s Export Control Officer, because we may need to implement a technology control plan to avoid an unauthorized deemed export
  • If there is a possibility you are not conducting fundamental research, please contact the University’s Export Control Officer
  • If you plan to receive information from another party that may be export controlled (e.g. under a confidentiality agreement), please contact Josef Mejido, the University’s Export Control Officer.