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Office of Research and Graduate Studies

Export Controls

 
 

Academic Freedom is a guiding principle for FGCU. It is the foundation for the transmission and advancement of knowledge. The university vigorously protects freedom of inquiry and expression and categorically expects civility and mutual respect to be practiced in all deliberations.

Export controls present a unique challenge to universities – balancing one’s academic freedom while maintaining national security and economic vitality.  FGCU is committed to educating its faculty, visiting faculty and scientists, postdoctoral fellows, students and other employees retained by or working at or for FGCU on U.S. export control laws and regulations.

As part of our ongoing commitment to export control compliance and education, we have established this export controls website that contains university export control information, key contacts, definitions, access to training modules and other reference materials.  This website is designed to provide an overview of export controls that are relevant to a university setting and to help you obtain assistance with questions related to export controls.

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Export Controls Overview

Export control laws are designed to meet international treaty obligations, protect national security interests, promote foreign policy and protect the country’s economic viability.  More specifically, export control laws regulate the “export” or “re-export” of products, software, services and technologies, including those with “dual use” applications (primarily commercial in nature but may have military or proliferation applications), and define what a university can export, where it can export, who can receive it and how it can be used.

Additionally, U.S. export controls regulate the release or transfer of technology or technical data to foreign nationals in the U.S. This type of transfer, referred to as a “deemed export”, is deemed to be an export to the individual’s home country, even though the release occurs entirely within the United States.  Under the “deemed export rule”, the term "release" is broadly defined and can occur through:

  • Visual inspection (including via computer networks)
  • Discussion or conversation
  • The application outside the U.S. of personal knowledge
  • Technical experience acquired in the United States

In some cases, a U.S. government export license is required prior to an export or release of technology or technical data to a foreign national. The license requirement is dependent on two factors (1) the nature of technology that will be exported or released, and (2) destination or home country.

U.S. export control requirements are complex, especially in a university setting. For example, universities may work with a wide range of technologies in various sponsored and non-sponsored (i.e., unfunded) research projects. Though universities may be able to use certain exclusions or exceptions from U.S. export control requirements (e.g., Fundamental Research or Publically Available/Public Domain), the use of such exclusions may be unavailable where the activity or project is subject to publication or other restrictions.

Further, enforcement of U.S. export control regulations continues in both industry and university settings. Penalties included fines up of the $1,000,000 and 20 years imprisonment in the most egregious cases.

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FGCU Export Control Compliance

Policy Statement


The university community expects all individuals involved in scientific research and scholarly activity to comply with U.S. export control laws. 

FGCU will fully comply with U.S. export control laws while ensuring that, to the extent possible, university instruction and research is conducted openly and without restriction on participation or publication. To this end, FGCU will ensure that, unless unavoidable, information generated during the performance of any university research, including sponsored research activities, qualifies for the Fundamental Research provisions of applicable export control laws.

The civil and criminal penalties associated with violating export control regulations can be severe, ranging from administrative sanctions including loss of research funding to monetary penalties to imprisonment for individuals.

Visual Compliance


FGCU subscribes to Visual Compliance, a web-based export control management tool to comply with Federal export control laws and regulations that directly affect university research.  These laws and regulations include the: 

 Visual Compliance allows the university to:

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Research and Export Controls

Funded Research

The Office of Research and Graduate Studies (ORGS) is FGCU’s central point of coordination for sponsored projects and is FGCU’s legally authorized representative for grants, contracts, and assurances.  It is the responsibility of ORGS to ensure that all research conducted under its auspices is carried out in compliance with applicable State and Federal regulations, including export controls.  The policies and procedures adopted by ORGS serve to meet such compliance requirements.

In order to facilitate compliance with export controls, ORGS requires all FGCU members seeking external funding for sponsored programs to complete an Internal Clearance Form.  This form includes questions related to export controls.

If the Internal Review Form indicates a possible export control issue, the PI will work with ORGS and the export compliance contact to complete a license determination.  If an export license is required, the PI will assist ORGS with the license application.


Unfunded Research

Scholarship and other research activities that are conducted outside of ORSP (i.e., unsponsored” or “unfunded”) may also be subject to export controls.  Such activities are often initiated through more informal means and are not managed through formal ORSP procedures. In order to facilitate compliance with export controls for activities that occur outside the ORSP framework, FGCU uses an Export Control Questionnaire that is issued to faculty members annually as part of FGCU’s export compliance program.

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Deemed Exports

A "deemed export" is the release of technology or technical data to a foreign national in the U.S. The release is “deemed” to be an export to the individual's home country, even though the release occurs entirely within the United States. Such releases are subject to export licensing requirements, and an unauthorized release to a foreign national within the United States constitutes an export violation. The term "release" is broadly defined and can occur through visual inspection (including via computer networks), verbal exchanges, or the application outside the U.S. of personal knowledge or technical experience acquired in the United States.

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Employing Foreign Nationals (non-immigrant worker visa applicants)

The U.S. Citizenship and Immigration Services (USCIS) now requires employers to perform a “deemed export attestation.”  Specifically, employers must certify that they:

  1. Have reviewed the Export Administration Regulations ("EAR") and International Traffic in Arms Regulations ("ITAR")
  2. Have determined whether a license is or is not required before the foreign employee can have access to controlled products or technology.   This attestation is certified on USCIS Form I-129.

    Note:  The I-129 export control certification, implemented in early 2011, requires U.S. employers, including universities, to comply with the "deemed export" rule. The new Form I-129 certification requirement does not change the rule in any way

Under certain circumstances, employers may need to obtain U.S. government permission, (a “deemed export” license) prior to releasing technology to a foreign national.  The government may deny license requests with regard to certain types of technology.  This new certification requirement makes it critically important that employers of foreign nationals, including universities, understand and comply with U.S. export control laws and regulations.

Who is considered a “foreign national” under these rules? 

A "foreign national" is anyone who is not a U.S. citizen or lawful permanent resident (i.e., aliens possessing a valid Form I-551 or "green card"), or persons granted asylee or refugee status. 

Under export controls, anyone holding a temporary visa (B, E, F, H-1B, H-3, J-1, L-1, etc.) is considered a foreign national.   Foreign national employees requiring the deemed export certification include faculty, visiting scholars, researchers, staff, post-doctoral candidates, technicians, foreign students seeking advanced degrees, and any foreign national conducting research at U.S. universities or their affiliates.

International Exchange Visits

The Office of International Services provides overall leadership to FGCU in developing, coordinating and promoting international education opportunities for students and professionals.

Application Process
FGCU personnel wishing to invite and host a foreign national to the university must apply through the International Services Office well in advance (90 days minimum suggested) of an expected start date for the Exchange Visitor as preparations can take several months to ensure necessary compliance and arrangements.  Please click here for important information, requirements, guidance and forms regarding the Exchange Visitor Program. The International Services Office may be your initial point of contact as you consider hosting a foreign national Exchange Visitor however, you may also be referred to the ORSP or Human Resources Office for additional guidance and appropriate procedures as needed. No FGCU persons should offer any formal or written invitation to a prospective Exchange Visitor until advised by the International Services Office that all required procedures have been completed.

Exchange Visitors and Export Compliance
All Exchange Visitors must meet, and be screened for, export compliance requirements. The Deemed Export Review Form for J-1 Scholars and Student Interns (included in the general application process for hosting the Exchange Visitor) must be completed and submitted to International Services Office. If further information is needed, or any concerns are noted, the International Services Office will contact the FGCU host prior to proceeding to formally invite the Exchange Visitor and issue appropriate immigration documents.

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"Red Flags" - When to Contact Export Compliance

Though university activities are often eligible for exceptions and exclusions from export controls, the use of such exclusions/exemptions may be unavailable in certain circumstances. The following provides guidance on circumstances or "red flags" that require a closer review of potential export control issues. These "red flags" may appear in a number of activities, including sponsored research, non-sponsored research or collaboration with third parties. Examples of activities in a university setting that may be subject to export controls follow.

Export controls may apply if an employee or the university accepts restriction on the publication or dissemination of information.  Examples of problematic restrictions included:  

  • Pre-publication review by a sponsor or third-party;
  • Requirement to treat research results as proprietary or confidential;
  • A sponsor’s right to withhold information from dissemination or publication.

Export controls may apply if an employee or the university accepts research restrictions, including those that

  • Forbid or restrict the participation of foreign nationals;
  • Limit research participation to “U.S. persons” or “U.S. citizens”;
  • Designate the research activity, content or results as “subject to export controls”;
  • Include a sponsor initiated or Government flow-down export control clause (other than a general statement of compliance);
  • Require a security clearance for participants; or
  • Otherwise limits the openness in research activities.

Export controls may also apply to university activities related to international travel.  International travel activities that may be subject to export controls include:

With few exceptions, the Fundamental Research Exclusion is limited to research conducted at U.S. accredited institutions of higher learning.  Therefore, research activity involving a location outside the United States or exchange of technology with a foreign located collaborator may invalidate this exemption. In addition, collaborative research with any U.S. embargoed or sanctioned country may be subject to U.S. export controls or economic sanctions regulations.

The exclusions described on this site do not apply to the export of hardware, software or technology, including prototypes, to a foreign location.  An export license may be required for an export shipment depending on what the item is, the destination and the foreign recipient(s).

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Exclusions & Exemptions from Export Controls

Technology or software that is “publicly available” is typically not subject to U.S. export controls, including the deemed export rule.  This includes technology or software that:

  • Is already published or will be published (referred to as the “Publicly Available/Public Domain Exclusion”);
  • Arises during or results from “fundamental research” (referred to as the “Fundament Research Exclusion”); or
  • Is educational as defined in the regulations (referred to as the “Education Exclusion”).

Each of these exclusions and some potential limitations are described in greater detail below.

Publicly Available/Public Domain Exclusion

This exclusion is defined as technology and software information that is already published or will be published is not subject to export controls.  Information is “published” when it becomes generally accessible to the interested public in any form, including: 

  • Publication in periodicals, books, print, electronic or any other media available for general distribution to any member of the public or to a community of persons interested in the subject matter either free or at a price that does not exceed the cost of reproduction and distribution;
  • Readily available at libraries open to the public or at university libraries;
  • Patents and open (published) patent applications available at any patent office; or
  • Release at an open conference, meeting seminar, trade show or other open gathering.

 Limitations:  It is important to note that this exclusion may not apply to technology or software related to defense, military, space applications, or certain encryption software.

Fundamental Research Exclusion

Fundamental research 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, or production where the results are typically restricted for proprietary reasons or specific national security reasons.

Information resulting from “fundamental research” is typically excluded from export controls. As a result, a license is not required to release information that qualifies as “fundamental research” to a foreign national.

Limitations:  The Fundamental Research Exclusion may be unavailable if an employee or the university accepts any restrictive clause or condition that:

  • Forbids or restricts the participation of foreign nationals;
  • Gives the sponsor a right to approve publications resulting from research;
  • Restricts access to and disclosure of research results; or
  • Otherwise violates the openness in research.

Education Exclusion

The educational exclusion includes information that is released by instruction in catalog courses and associated teaching laboratories of academic institutions. In most cases, a license is not required to share with foreign nationals “information concerning general scientific, mathematical or engineering principles commonly taught in universities.” 

Limitations:      It is important to note that this exclusion may not apply to technology or software related to defense, military, space applications, or certain encryption software.

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Export Compliance Training

FGCU is committed to educating its personnel, including employees, faculty, visiting faculty and scientists, postdoctoral fellows, students and other persons retained by or working at or for FGCU on U.S. export control laws and regulations.  As part of our ongoing commitment to export control compliance and education, we have established this website that contains University export control information, forms, training modules and reference materials. 

Export compliance training is required for participants involved in Sponsored Program that is subject to export controls. Please note that Principal Investigators are responsible for ensuring that all FGCU participants (including students) complete this mandatory training.  The following on-line training programs are available to FGCU faculty, staff and students.

  1. CITI Export Control Basic Training Modules - Two training modules, an overview of U.S. Export Controls and the Office of Foreign Affairs, developed by the Collaborative Institutional Training Initiative (CITI) for use by member institutions.   All FGCU faculty, staff, and students with an interest in export compliance are also invited and encouraged to complete the course.
  2. US Department of Commerce Bureau of Industry and Security Training Room - A series of short videos (2 - 10 minutes), training modules (6 - 22 minutes), and webinars (15+ minutes) on topics relevant to export control.

Additionally, general awareness information is provided to employees in the form of a short pamphlet distributed at orientation or via an introductory email within their first month of employment. An annual reminder/refresher email will be distributed to all employees at the start of each academic year (August/September).

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Regulations and Agencies

Export Administration Regulation ("EAR") 

The EAR covers "Dual Use" technology that has both commercial and potential military uses. These regulations are administered by the U.S. Department of Commerce, Bureau of Industry and Security ("BIS").

Under the EAR, an export includes "release of technology or source code subject to the EAR" to a foreign national. The BIS website includes a set of FAQs that define terms related to "deemed exports" and provide answers to deemed export questions.

International Traffic in Arms Regulations ("ITAR")

The ITAR covers items on the United States Munitions List ("USML") and generally applies to items that are specifically designed, modified, configured, or adapted for military or space use. These regulations are administered by the U.S. Department of State, Directorate of Defense Trade Controls ("DDTC").

Under the ITAR, an export is defined to include "disclosing of technical data to... (or) performing a defense service on behalf of... a foreign national". In general, any transfer or release of ITAR technical data or services to a foreign national requires an export license.

U.S. Sanction Regulations

The U.S. Department of Treasury, Office of Foreign Assets Control ("OFAC") administers sanction regulations, including: (a) a comprehensive embargo against Cuba, Iran, and Sudan; and (b) an embargo against certain persons, e.g., Specially Designated Terrorists (SDT), Foreign Terrorist Organizations (FTO), Specially Designated Global Terrorists (SDGT), and Specially Designated Narcotics Traffickers (SDNT).

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Terms & Definitions

CCL (Commerce Control List): Categorized list of products, software, and technology subject to controls under the Export Administration Regulations (EAR Part 774). Also referred to as the "dual-use" list.

Deemed Export:  The release of technology or technical data to a foreign national in the U.S. is "deemed" to be an export to the individual's home country. This concept is referred to as a "deemed export" and such release is treated as an export to the home country of the foreign national.

Defense Article: Any item subject to the International Traffic in Arms Regulations ("ITAR"), including any item specifically designed, developed, configured, adapted, or modified for a military, space or satellite application.

Defense Service: Furnishing of assistance, including training, to a foreign person in the design, development, engineering, manufacture, production, assembly, testing, repair, maintenance, modification, operation, demilitarization, destruction, processing oruse of a defense article.

DDTC (Directorate of Defense Trade Controls): The U.S. Department of State agency responsible for the administration of the International Traffic in Arms Regulations ("ITAR").

Dual-Use Item: Items that have both a civil and potential military/proliferation application. Dual use categories include, but are not limited to, electronics, telecommunications, chemicals, navigation, sensors/lasers, information security, and materials processing.  The term is typically used in the context of the Commerce Control List (CCL).

EAR (Export Administration Regulations): Regulations administered by BIS, U.S. Department of Commerce that control the export and re-export of dual use items.

EAR99: Dual use items that are not specifically listed on the Export Administration Regulations Commerce Control List (CCL) are designated as EAR99. EAR99 items generally consist of low level technology, consumer goods, etc.

ECCN (Export Control Classification Number): An alphanumeric designation (e.g., 3A001, 5A002) 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.

Encryption Source Code: A precise set of operating instructions to a computer that, when compiled, allows for the execution of an encryption function on a computer.

Export: The term "export" includes the transfer of information, software or commodities to another country, as well as, the release of controlled technology to a foreign national.

Exporter: The person in the United States who has the authority of a principal party in interest to determine and control the sending of items out of the United States. Principal parties in interest are those persons in a transaction that receive the primary benefit, monetary or otherwise, of the transaction.

Foreign National/Foreign Person: A "foreign national" is anyone who is not a U.S. citizen or lawful permanent resident (i.e., aliens possessing a valid Form I-551 or "green card"), or persons granted asylee or refugee status. Under export controls, anyone holding a temporary visa (B, E, F, H-1B, H-3, J-1, L-1, etc.) is considered a foreign national.

Fundamental Research: 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. For more information, see the Exceptions & Exclusions Section on this site.

ITAR (International Traffic in Arms Regulations): Regulations administered by DDTC, U.S. Department of State that control the export, re-export and temporary import of items specifically designed, developed, modified, configured or adapted for a military, space or satellite application.

OFAC (Office of Foreign Assets Control):  Agency in the U.S. Treasury Department that oversees U.S. economic sanctions regulations.

Publicly Available Information: Information that is generally accessible to the interested public in any form and, therefore, not subject to the EAR.  Includes technology and software that are already published or will be published; arise during, or result from fundamental research; are educational; or are included in certain patent applications. For more information, see the Exceptions & Exclusions Section on this site.


Technology:  Specific information necessary for the “development”, “production”, or “use” of a product.  The information takes the form of “technical data” or “technical assistance”.

Technical Assistance: May take forms such as instruction, skills training, working knowledge, consulting services.

Technical Data: May take forms such as blueprints, plans, diagrams, models, formulae, tables, engineering designs and specifications, manuals and instructions written or recorded on other media or devices such as disk, tape, or read-only memories. 

Use Technology:  Information for the operation, installation (including on-site installation), maintenance (checking), repair, overhaul andrefurbishing.

USML (United States Munitions List): A categories list of defense articles and defense services controlled under the ITAR.