Frequently Asked Questions
What is an Export?
An export is any oral, written, electronic or visual disclosure, shipment, transfer or transmission of commodities, technology, information, technical data, assistance or software codes to:
Anyone outside of the U.S. A “foreign national” wherever they are (deemed export) A foreign embassy or affiliate
What are Export Controls?
Export controls are U.S. laws and regulations that regulate and restrict the release of critical technologies, information, and services to foreign nationals, within and outside of the United States, and foreign countries. U.S. export controls exist to protect the national security and foreign policy interests of the United States. BNL/BSA employees may intersect with federal regulations that impose access, dissemination or participation restrictions on the transfer of items and information regulated for reasons of national security, foreign policy, anti-terrorism or non-proliferation.
Do U.S. export controls apply if I am no longer in the U.S.?
Yes. International travel by employees is still subject to export control regulations. When traveling, be aware that taking information, technology, equipment, or laptops out of the country because they may require an export license.
If you are traveling to a sanctioned or embargoed country to conduct activities, or you are taking any of the following: encrypted software, export controlled items/information, unpublished research data or data not in the public domain – you must ensure you discuss your activities in advance of travel with the Export Control Office. Depending on the type of activity, it may be prohibited, or require licenses be obtained before being allowed.
Who is a Foreign National or Foreign Person?
A Foreign National is any person who is NOT:
- A U.S. citizen
- Permanent resident alien (Green Card Holders)
- Temporary resident under amnesty provisions
The following are considered foreign nationals or foreign persons:
Foreign corporation, business association, partnership entity or group not incorporated in the U.S. Person in the U.S. in non-immigrant status (such as international students or F1 visas, visiting scholars or any person in the U.S. on a visa to include employees on J1 or H1B visas.)
What is a Deemed Export?
A deemed export is the release of technology or information to a foreign national in the U.S., including post-docs, faculty, visiting scientists or training fellows.
Deemed exports are the most common exports for BNL/BSA employees as an export can happen when traveling abroad, BNL lab or when hosting foreign nationals.
Does operating controlled equipment by foreign nationals constitute a deemed export?
It depends on the equipment. Operation of a defense article by foreign nationals is prohibited, unless a license is obtained prior to operating.
Operation of EAR/CCL items equipment by a foreign national in the U.S. is not controlled by the export regulations. In the U.S., the "deemed" export rule only applies to technical information about the controlled commodity. As such, while the operation of equipment inside the U.S. is not controlled, the transfer of technical information relating to the use (i.e., operation, installation, maintenance, repair, overhaul, and refurbishing) of equipment may be controlled in certain circumstances.
For example, if the manufacturer of the equipment provided BNL/BSA some confidential, proprietary information about the design or manufacture of the equipment, then BNL/BSA might need a "deemed" export license to provide such proprietary information to a foreign national, especially if shipment of the item to the home country of the foreign national would require an export license.
The export regulations allow researchers and visitors to operate (and receive information about how to operate) controlled equipment while conducting fundamental research, if the technical information about the controlled equipment qualifies as "in the public domain" or "publicly available.”
What are the Research Exclusions and when do they apply?
Research is not subject to export controls if it qualifies for at least one of three exclusions:
Fundamental Research Exclusion is a broad-based general legal exclusion that helps to protect technical information (but not tangible items) involved in research from export controls. It is defined as basic and applied research in science and engineering conducted at accredited U.S. institutions of higher education where the resulting information is ordinarily published and shared broadly within the scientific community. Such research can be distinguished from proprietary research and from industrial development, design, production, and product utilization, the results of which ordinarily are restricted for proprietary reasons or specific national security reasons. Research qualifying as “fundamental research” is not subject to export controls.
If the researcher accepts any restrictions on the publication of the information resulting from the research, other than limited prepublication reviews by research sponsors to prevent inadvertent divulging of proprietary information provided to the researcher by sponsor or to ensure that publication will not compromise patent rights of the sponsor. There is no general fundamental research exclusion that applies to defense articles (as opposed to technical data) under the ITAR; however, there are exclusions that apply to specific articles under certain circumstances.
Public Domain Exclusion applies to information that is published and that is generally accessible or available to the public: (1) through sales at newsstands and bookstores; (2) through subscriptions which are available without restriction to any individual who desires to obtain or purchase the published information; (3) through second class mailing privileges granted by the U.S. Government; (4) at libraries open to the public or from which the public can obtain documents; (5) through patents available at any patent office; (6) through unlimited distribution at a conference, meeting, seminar, trade show or exhibition, generally accessible to the public, in the United States; (7) through public release (i.e., unlimited distribution) in any form (e.g., not necessarily in published form) after approval by the cognizant U.S. government department or agency; and (8) through fundamental research in science and engineering at accredited institutions of higher learning in the U.S. where the resulting information is ordinarily published and shared broadly in the scientific community.
ITAR/USML technical information already in the public domain qualifies for the Public Domain exclusion as long as it meets the requirements stipulated above.
Educational Information Exclusion covers general science, math or engineering commonly taught in courses listed in catalogues and associated teaching laboratories of academic institutions in the U.S. even if the information concerns EAR/CCL controlled commodities or items. ITAR/USML items do not qualify for the Educational Exclusion, as instruction is a “defense service.”
Please reach out to the Export Control Office if there is any concern about whether or not any of these exclusions apply to your research.
What is Restricted Party Screening?
Restricted Party Screening (RPS) is an essential component of BNL/BSA’s Export Compliance Program. The RPS checks persons or entities against various U.S. government lists of individuals, companies, and organizations, both foreign and domestic, where export regulations or sanctions block or restrict any export or prohibited transaction. Individuals on this list are “restricted parties”.
Regulators and enforcement authorities have made it clear that all organizations are obligated to conduct RPS on employees, contractors, vendors, business associates prior to facilitating any transaction.
BNL/BSA has an obligation to observe any red flag indicators and potentially restrict or prohibit interacting with entities entirely.
What is a Restricted Party?
A restricted party is an individual or entity that the U.S. government prohibits or restricts transactions with. A prohibited transaction is broadly defined as “trade or financial transactions and other dealings in which U.S. persons may not engage.” Because each program is based on different foreign policy and national security goals, prohibitions may vary between programs. A prohibited transaction may include the exchange of goods or services.
BNL/BSA will not engage in exports or transactions with such entities or their representatives, employees, or agents.
What is a Technology Control Access Management Plan (TCAMP)?
A Technology Control Access Management Plan (TCAMP) helps ensure that controlled materials will not be accessed by unauthorized persons. The need for a plan occurs whenever Controlled Unclassified Information (CUI), ITAR, CCL or other controlled items or data are present. The most common use of a TCAMP is to identify controlled materials or data and describe how these items will be secured within the lab. It includes plans for storage, processing, transmission of the information or items and procedures for guarding against unauthorized access by individuals or entities.