Q1. I am planning to export an item, technical data or software. What do I need to do?
Notify CUNY’s research compliance staff in the Office of the Vice Chancellor for Research (OVCR).
Because the export of an item, data or software may require an export license and, at a minimum, recipients of such exports must be screened against the U.S. Government’s restricted party watch-lists, please notify CUNY’s export administrator at least to 30 days prior to your intention to export so that compliance requirements can be resolved.
Q2. Do I need to wait to export my item until I receive an export license or other authorization?
If the research compliance staff determines that the item requires an export license, you will need to wait until we have the license. In any case, you will need to wait until the research compliance staff has completed the watch-list screening. [Note: screening itself normally only requires approximately 48 hours to process. Absent any screening concern and no license requirement, an export can proceed immediately.]
Q3. Does it matter how I plan to export the item, i.e. ship by freight forwarder or courier, hand-carry, or transmit
No, the method of export has nothing to do with whether a license is required.
Q4. How difficult is it to obtain an export license to ship tangible items, data or software?
Licenses are normally issued within to 30 days from the date an application is submitted.
Normally and, subject to certain exceptions, it is not difficult to obtain a license. Upon obtaining the necessary details about the export (e.g., nature of the item, purpose/end use, destination, and end user) the research compliance staff prepares and files the appropriate type of license application (dual use-EAR license or defense categorized-ITAR license). The license application is filed through one of the on-line U.S. Government agency portals, and the administrator is able to track the government’s approval process. Licenses are normally issued within to 30 days.
Note that where the Government finds the proposed export to have particular national security, biological safety, or nuclear or missile technology implications, the applicable Government agency can deliberate longer over the issuance of the license, referring it for inter-agency review or requesting CUNY to provide specific details. Hence, it is critical to allow sufficient time prior to intended export, for the license application to be processed.
Where the license application is intended to cover the provision of a defense service under the ITAR, (i.e. the release in any manner of ITAR technical data to a foreign national or training or assistance to a foreign national using ITAR data), this type of ITAR license, called a Technical Assistance Agreement or TAA, can take longer to prepare and longer to process.
Q5. Once we have a license authorization, am I done with the compliance requirements?
All export licenses and authorization carry provisos or conditions that are the Government’s specific restrictions or limitations on the export activity. For example, the Government may require that the recipient of the export provide a Letter of Assurance that they will not transfer or re-export the item beyond the originally licensed country destination. Limitations on the duration of the license, or on access by foreign nationals from certain countries may also apply. Failure to adhere to these provisos results in an enforceable export violation.
Q6. Do exports to every country require an export license?
Under the EAR dual use regulations, license requirements are on an item-by-item, country-by-country basis. As such, your particular item may or may not require a license. Under the ITAR defense regulations, exports to all countries presumptively require a license and, in some cases, depending on the country, the State Department will not, as a matter of policy, issue a license. For example, China is per se a prohibited country under the ITAR USML regulations; the State Department will not consider issuing a license of a USML item to China. There are approximately 10 other countries that are likewise prohibited under ITAR. Therefore, it is essential that all exports be cleared by the export administrator.
Q7. Do I need an export license to temporarily ship research equipment or a prototype/sample out of the U.S., for
example, for purposes of field research or equipment demonstration?
In some cases, yes
The answer depends on the export control jurisdiction of the item, as follows:
Scenario A – EAR dual use items: if the equipment does not require a license to export it to any country, then no, the temporary export does not require a license. If on the other hand, the item would normally require a license to export abroad, a specific license exemption such as the “Tool of Trade” exemption must apply to the temporary export or otherwise a license is required. [Note: the Tool of Trade exemption itself has numerous qualifications based on type of export, destination, and duration of export. Hence, it can only be used when all requirements are met.]
Scenario B: ITAR USML items: A DSP73 license is always required, even if you are only sending or transporting the ITAR equipment to international waters or airspace (i.e. not landing it any particular country); there is no Tool of Trade exemption under the ITAR.
Q8. How does licensing work if I am intending to ship both EAR and ITAR classified items?
You will likely need to obtain two licenses.
The ITAR item will require a DSP license, depending on the purpose of the export; the EAR item may require a separate license if controlled under the EAR. EAR items incorporated into ITAR items lose their EAR identity, and the entire item gets classified under ITAR. ITAR items incorporated into EAR-controlled or otherwise non-licensable items (No License Required) render the entire assembly ITAR, by virtue of the “see-through” rule under the ITAR regulations.
Q9. What does it mean to provide a “defense service” under the ITAR regulations?
When you release ITAR-classified technical data to a foreign national (including foreign national students or visitors on campus, off campus, or abroad), this constitutes a defense service, requiring a license prior to such activity. In addition, providing technical assistance or training to a foreign military organization in the U.S. or abroad constitutes a defense service, regardless of whether the data or information being transferred is EAR or ITAR-governed. In these instances, it is necessary to first obtain a TAA from the State Department prior to releasing the data or conducting the activity.
Q10. Does that mean teaching our foreign national students about something which happens to be listed on the USML requires a license?
Where we are teaching or discussing any item in the public domain which happens to be listed on the USML, or we have self-invented such information during the course of fundamental research with the intention to publish it, there is no license requirement. The license requirement applies when we are exporting ITAR data which we have received from a sponsor (government or industry) or research collaborator (government, industry, or research institution) under a restricted agreement, i.e. it is explicitly export controlled, and does not qualify as fundamental research intended for the public domain. [See Section 2 below for further Q & As]
Q11. Is there any easy way to distinguish between what is classified as an EAR vs. ITAR item for export license purposes, such as a laboratory research tool? What if the classification is not clear from the use of the vendor’s specifications?
When in doubt, refer the evaluation to the research compliance staff.
Typically, our research instruments are not categorized under the USML; however, as noted earlier, they may be dual-use controlled under the EAR and hence require a license. Where an item is specifically designed or modified for defense purposes as defined under the USML, it is likely ITAR-classified. When an item is procured, this designation may be referenced in the vendors’ Operation Manual or sales documentation, though not always. Research institutions transferring ITAR items during the course of collaborative research do not always identify such items as ITAR controlled, unless the Material Transfer Agreement so requires. Bottom line: you cannot tell whether an item is EAR or ITAR controlled merely by looking at: if there is any doubt, refer the evaluation to the research compliance staff who will assist in the classification for license purposes.
Q12. Do I really need to be concerned if the item that I plan to export is commercially available abroad?
Commercial availability does not remove an article from export jurisdiction and a potential licensing requirement.
Q13. Do I need to be concerned if I am importing an item into the U.S., i.e., are there import compliance regulations?
All imported items are subject to U.S. Customs regulations, and may have Customs duty and reporting requirements. In addition, importing items listed on the USML require an ITAR license, unless certain specific exemptions are met.