Frequently Asked Questions
Export Control Basics
Export controls are federal laws and regulations that regulate the shipment or transfer, by whatever means, of controlled items, software, technology or services out of the United States. export controls also restrict the release of certain information and services to foreign nationals here in the United States — also known as a “deemed export.” Export controls apply to all international activities regardless of funding status or source. The purpose of these laws and regulations is to protect U.S. national security and foreign policy interests from malign foreign actors who may wish to access our most advanced and useful materials and technologies.
An export is the shipment of items or data to or through a foreign country. It is also the electronic or verbal transmission of controlled information (phone, fax, email, video teleconference) to an individual in a foreign country. How an item is transported outside of the U.S. does not matter.
Some examples of exports include:
- Items sent to or through a foreign country by regular mail or hand-carried on an airplane
- Design plans, blueprints, schematics sent via fax to a foreign destination
- Software uploaded from the United States to or through a foreign destination or downloaded from or through a foreign country from an internet site or a file server
- Technology transmitted to or through a foreign country via e-mail or during a telephone conversation
- Technology, data, or other information that is encrypted by an algorithm at least as secure as AES-256 is not exported to a country through which it passes or where it comes to rest until it is decrypted
A deemed export is the disclosure of controlled material, information or technology to a foreign national within the United States.
Penalties for violations of export controls can include substantial monetary fines against Einstein and the individual and even jail time in the case of willful violations.
Not entirely. While there are some important “carve-outs” from these rules for certain activities, types of research, or institutions of higher learning in the United States, export controls can and do apply to a variety of common activities occurring within the research enterprise at Einstein and elsewhere.
International shipping, travel to foreign locations, or even hosting foreign national visitors can all have potential export controls implications for you and Einstein.
The Fundamental Research Exclusion (FRE) is one of the useful carve-outs afforded to academia with regards to export controls in the United States. If your work qualifies as fundamental research, then the results of such research are NOT subject to export controls requirements. Fundamental research is research in science where the results are normally published and shared within the research community and for which researchers have not agreed to any restrictions on sharing and publication.
No, only non-tangible research results are excluded under the FRE. Physical items such as biological or chemical materials remain subject to U.S. export controls. Depending on various factors, a license may be required to physically export an item.
All international shipments sent from Einstein require an export control review and approval.
The item is subject to export controls regardless of whether it is the result of fundamental research. As stated above, the FRE never exempts physical items from export control. Such shipments still require review and approval as noted above.
Correct; regardless of whether you’re selling any items to the recipient overseas you are engaging in an export activity by sending something out of the United States.
Foreign Travel
Yes, anytime you bring Einstein-owned items with you during international travel (whether in checked or carry-on luggage or on your person) you have just exported such items to your country of destination and any other countries you transited. Export control regulations and licensing requirements apply equally to such hand-carried exports. This includes information on the hard drive of your laptop. All export-controlled information or software on your laptop must be deleted or you must obtain clearance for leaving it on your computer(s) through the export control review process. Such clearance requires you to follow certain safeguards during your time in a foreign country.
Many factors play into that but, for most standard-issued Einstein devices you would not require a license for most countries. However, if there is any proprietary technical data on the device, or if it contains software programs other than those normally installed by the manufacturer or Einstein IT (e.g. Microsoft Office, etc.) than those may trigger the need for an export license. Additionally, the destination to which you travel could play a role in the determination process.
Yes, currently the following countries are subject to comprehensive trade embargoes and sanctions or to substantial export restrictions that are nearly equivalent to a comprehensive embargo:
- Cuba
- Iran
- North Korea
- Syria
- The following territories of Ukraine: (i) Crimea; (ii) the so-called Donetsk People’s Republic; and (iii) Luhansk People’s Republic.
- Russia
- Belarus
Nearly all activities with or within these locations (including with universities in these locations) require U.S. government approval. Although not subject to comprehensive trade embargoes, the following countries are also subject to broad export controls and sanctions:
- The African countries of Burundi, Central African Republic, Democratic Republic of the Congo, Ethiopia Libya, Mali, Somalia, South Sudan, Sudan, and Zimbabwe
- The Middle Eastern countries of Iraq, Lebanon, and Yemen
- The Balkans
- The South America countries of Nicaragua and Venezuela
- The Asian countries Myanmar (Burma) and China (including Hong Kong and Macau)
Travel to or activities with these countries and or foreign nationals of these countries must be discussed first with the Office of General Counsel. Depending on the nature of your research, there may be other country-specific restrictions or considerations to consider.
Yes, there are prohibitions on providing services (such as lectures or speeches) while in Iran due to U.S. sanctions on that nation. The Office of General Counsel should be consulted immediately if you are invited to attend any event in Iran, or if you are considering similar activities in that country.
Restricted Parties
Yes, the U.S. government maintains various lists of so-called “restricted parties.” A restricted party is an individual, company, or organization with which certain interactions and transactions are restricted. U.S. persons or entities (including their subsidiaries and agents in other countries) are generally prohibited from dealing with a restricted party without a specific license.
Einstein has an institutional site license to a comprehensive software program to perform restricted party screenings on any outside party doing business or collaborating with Einstein.
Contact the Office of General Counsel to arrange screening of any foreign entities with which you wish to collaborate or to engage.
Export Licenses
An export license is a specific authorization from the U.S. government to engage in an export or sanctions activity that would otherwise be prohibited. These licenses must be obtained beforehand and are situation-specific (i.e., no “blanket licenses” can be obtained for your lab). If one is required, the license must be secured in advance of the export.
All export or sanctions licenses at Einstein must be obtained via the Office of General Counsel
Work with the Office of General Counsel to make this determination. Determining whether an export is subject to a licensing requirement is a complicated process that necessarily involves a full understanding of the item (includes software and technology). Whether something is controlled for export is not intuitive. License requirements are dependent upon an item’s technical characteristics, the destination, the end use, and the end user. Some examples include:
- Traveling with a laptop or external drive that contains controlled technical data.
- Providing remote access to Einstein servers from abroad.
- Using international computing or storage resources to analyze restricted data.
- Sharing technical details about controlled instruments or systems, such as source code, firmware, design schematics, or calibration data, with collaborators located outside the U.S.
If it is determined that your activity requires an export license, the Office of General Counsel works with you to submit a license request to the appropriate regulatory body on your behalf. It is important to note that obtaining an export license from the Commerce Department usually takes 90-120 days and sometimes longer; a license from the State Department can take several months or longer; and a license from the Treasury Department can take 3-6 months or longer.
Foreign Nationals at Einstein
Any person who does not belong to the below categories is considered a foreign national for the purposes of export control regulations:
- A U.S. citizen
- A U.S. lawful permanent resident (i.e., a green card holder)
- A refugee under 8 U.S.C. § 1157
- An asylee under 8 U.S.C. § 1158
Perhaps. This depends on many factors. Generally speaking, having a foreign national visiting or working in your lab does not alone necessitate the need for an export license unless the lab is working on export-controlled technology or software or has export-controlled equipment available to the foreign national (i.e., a deemed export). Commerce Department rules prohibit actual release of technology. State Department practice is to prohibit potential access whether or not there is a release.
If you plan on sharing any export-controlled information or software with a foreign national that is NOT already published and in the public domain, it is possible an export license could be required. Similarly, if you have export-controlled items in your lab and a foreign national requires direct access to them, it is possible a license is needed for that activity – further analysis by the Office of General Counsel is necessary.
Also, keep in mind that if your visitor needs to take items from your lab back out of the country with them, this is an export that may require licensing.
Yes, the source of funding is not always the determining factor for whether your project could be affected by export control regulations. There are DOD-funded projects for which export controls are not a factor and, conversely, certain non-DOD-funded projects are affected by export controls.