Policy on Export Compliance

New York University (“NYU”) is subject to various national and international export and import control laws and regulations (“Export Control Laws”).  

U.S. Export Control Laws are designed to protect U.S. national security, foreign policy, and economic interests by restricting certain types of items, software, technology and technical data/information from being sent internationally to certain individuals, entities, or countries, including to U.S. persons or organizations, or from being made available to foreign nationals within the U.S.  Several U.S. agencies have regulatory authority over exports, including but not limited to the Department of Commerce (Export Administration Regulations (“EAR”)), the Department of State (International Traffic in Arms Regulations (“ITAR”)), and the Department of Treasury, Office of Foreign Assets Control (“OFAC”) (economic/trade sanctions programs).  

Applicable international Export Control Laws include, but are not limited to, Federal Law 13 of 2007 in the United Arab Emirates which established an export controls framework for goods, information, and technology of strategic value.  

The penalties for violating Export Control Laws can be significant and may result in criminal sanctions and/or fines against individual members of the University Community and/or NYU, loss of exporting privileges for NYU, and/or loss of federal funds.

NYU is committed to operating in an ethical manner and in compliance with all applicable Export Control Laws of the jurisdictions in which NYU operates.  U.S. Export Control Laws in particular may apply to academic, research, travel and procurement activities conducted by NYU within and outside the U.S.  These laws create regulatory requirements for NYU as an institution as well as for members of the University Community (which includes the Board of Trustees, faculty (including visiting faculty), researchers (including persons conducting research at or in other locations under the direction of NYU), employees, volunteers, fellows, trainees, and post-doctoral appointees, students and others who are performing activities or providing services at or under the direction of NYU, including consultants, vendors, and contractors) who are engaged in research or other activities under the direction of NYU within the U.S. or at international locations.

As a global research university conducting fundamental research, the goal of NYU’s Export Compliance Program is to ensure compliance with Export Control Laws while balancing NYU’s commitment to Openness of Research and education, and encouraging members of the University Community to freely collaborate.  This Policy affirms NYU’s commitment to compliance with Export Control Laws and sets forth the roles and responsibilities of NYU as an institution as well as the roles and responsibilities of individual members of the University Community with respect to compliance with Export Control Laws.

To ensure compliance with Export Control Laws, members of the University Community are required to become familiar with this Policy, have a basic understanding of Export Control Laws and how they apply to their particular academic and research activities, be knowledgeable about their administrative responsibilities, comply with the requirements of their specific roles, and seek guidance from the Office of Ethics and Compliance (“OEC”), which oversees NYU’s Export Compliance Program, as appropriate.

1. U.S. Export Control Laws

Based on considerations of national security, foreign policy, and economic interests, the U.S. imposes a number of restrictions on the export of certain items (including tangible goods, software, technical data, and services) out of the U.S., as well as on interactions with sanctioned countries and “Restricted Parties” (entities or individuals who are placed on a denial list by the U.S. government, other governments, or relevant non-governmental organizations).  NYU may not engage in business relationships with a Restricted Party nor shall it engage in activities subject to sanctions, without authorization of OEC, which will conduct a review in consultation with the Office General Counsel (“OGC”).  An export license from one or more government agencies may be required if you plan on conducting any business or research with a Restricted Party, even if you are conducting fundamental research, and NYU performs automated screening against applicable U.S. and foreign Restricted Party lists.  U.S. Export Control Laws are highly technical and complex and are subject to change as U.S. national security, foreign policy and economic interests evolve.  Such changes may include updates to definitions, product or technology classifications, and administrative processes.  

Determining whether a particular item or activity is subject to U.S. Export Control Laws requires a review by OEC, in consultation with the OGC, the Office of Sponsored Programs (“OSP”), Technology Opportunities and Ventures (“TOV”), or other designated officials or departments, as appropriate.  If a determination is made that items or activities are subject to U.S. Export Control Laws, they may be prohibited, require that a Technology Control Plan (“TCP”) be put in place, require a license from a relevant federal agency, or be subject to other restrictions.  Export license application procedures vary from agency to agency, and obtaining a license may take several months, without a guarantee that the license will be granted. 

a. Export and Reexport

An “export” is not limited to the physical shipment of an item to an overseas destination as U.S. government agencies construe the term broadly.  

• Export.  Under the EAR and ITAR, an export is defined as an actual shipment or transmission of items out of the U.S.  This includes the physical movement of items across borders by plane, ship, truck, car, rail, or hand-carry, as well as the transmission of technology or software such as through email, online file transfer/sharing services, telephone discussions, fax, or posting on the internet.

• Reexport.  The EAR and ITAR impose restrictions on the reexport of U.S. items, i.e., the shipment or transfer to a third country of items originally exported from the U.S.

• Deemed Export.  Under the EAR, the release of technology or software source code (but not object code) to a “Foreign National” who is located in the U.S. is “deemed” to be an export to the person’s country(ies) of nationality and as such is covered by this Policy.  A Foreign National is anyone who is not a citizen or permanent resident of the U.S., and is not otherwise a protected individual (e.g., a refugee).  It also includes any corporation, business association, partnership, trust, society or any other entity or group that is not incorporated in the U.S. or organized to do business in the U.S., as well as international organizations, foreign governments and any agency or subdivision of a foreign government (e.g., a diplomatic mission).  Deemed exports may occur through making technology available to Foreign Nationals for visual inspection (such as reading technical specifications, plans, blueprints, etc.), when technical information is exchanged orally, or when technology is otherwise made available under the guidance of persons with knowledge of the technology.  The term “deemed export” appears only in the EAR.  The ITAR does not specifically use this term, but rather includes this concept in its definition of “export.”

• Deemed Reexport.  A deemed reexport is defined as releasing or otherwise transferring technology or source code to a Foreign National of a country other than the foreign country where the release or transfer takes place.  While technology or software may be exported to the original foreign country without an export license, it may require a license before being released to a third country Foreign National located in the original country.

When applying the deemed export rules, the EAR looks at the Foreign National’s most recent citizenship or permanent residence whereas the ITAR looks at the Foreign National’s country of birth and current citizenship(s).

The issue of deemed exports is particularly relevant to university research.  While a member of the University Community may be involved in the shipment or hand-carry of items abroad, most often faculty and students are engaged in teaching and research in the U.S.  Whenever teaching or research occurs in the U.S. but is related to export-controlled items, involvement of foreign researchers or students may trigger deemed export concerns.

b.   EAR

The EAR governs the export or deemed export of so called “dual use” items, i.e., items that have both commercial and military applications.  A key in determining whether an export license is needed for a dual use item is knowing the item-specific Export Control Classification Number (“ECCN”), an alpha-numeric code that describes the item and indicates licensing requirements.  All ECCNs are listed in the Commerce Control List (“CCL”) Categories 0-9.  More broadly, unless the item is subject to an exclusion or another agency’s jurisdiction, the EAR governs all items in the U.S., all U.S.-origin items wherever located, and foreign-made commodities incorporating, or being direct products of, controlled U.S.-origin technology.  If the item falls under EAR jurisdiction and is not listed on the CCL, it is designated as EAR99.  EAR99 items generally consist of low-technology consumer goods and do not require a license in many situations.  However, if you plan to export an EAR99 item to a sanctioned or embargoed country, to a Restricted Party, or in support of a prohibited end-use, you may be required to obtain a license.

c. ITAR

The ITAR governs the export or deemed export of Defense Articles and Defense Services as enumerated on the United States Munitions List (“USML”), Categories I-XXI, which are organized alphanumerically by paragraph and subparagraph.  

A “Defense Article” is any item or technical data designated in the USML, subject to the ITAR policy on designations of additional items.  This term includes technical data recorded or stored in any physical form, models, mockups or other items that reveal technical data directly relating to items designated in the USML.  It also includes forgings, castings, and other unfinished products, such as extrusions and machined bodies, that have reached a stage in manufacturing where they are clearly identifiable by mechanical properties, material composition, geometry, or function as defense articles. It does not include basic marketing information on function or purpose or general system descriptions.  

“Defense Services” include 1) the furnishing of assistance (including training) to Foreign Nationals, whether in the U.S. or abroad, in the design, development, engineering, manufacture, production, assembly, testing, repair, maintenance, modification, operation, demilitarization, destruction, processing or use of Defense Articles, 2) the furnishing to Foreign Nationals of any technical data controlled by the ITAR, whether in the U.S. or abroad, or 3) the training of foreign military units and forces, including formal or informal instruction of Foreign Nationals in the U.S. or abroad.

d. OFAC Regulations

OFAC imposes country-specific embargoes and sanctions, and certain countries are subject to a comprehensive or near comprehensive program of sanctions.  The broad scope and applicability of these programs necessitates that all NYU activities that will be conducted in, involve the participation of parties located in, or benefit a sanctioned country be reviewed and authorized by OEC and OGC as an appropriate government license or authorization may be required.  The following are examples of activities that are subject to control under the OFAC Regulations:

• Import of any goods originating in a sanctioned country
• Direct or indirect export of any goods to a sanctioned country
• Travel to a sanctioned country
• Provision of a service of value (e.g., research, testing, conference participation, or advisory/consulting services) to a party in a sanctioned country
• Obtaining services from a party located in a sanctioned country

OFAC also maintains the list of “Specially Designated Nationals and Blocked Persons” (“SDN List”), which lists entities and individuals with whom U.S. persons and organizations may not do business without an appropriate license or authorization.

2.  The Fundamental Research Exclusion (“FRE”)

The EAR and ITAR contain a critical exclusion for the dissemination of data and information, the FRE, which excludes “fundamental research” conducted at NYU from the scope of those regulations.

  a. Scope of Fundamental Research

In the EAR, fundamental research is defined as research in science, engineering, or mathematics, the results of which ordinarily are published and shared broadly within the research community, and for which the researchers have not accepted restrictions for proprietary or national security reasons. “Technology” or “software” that arises during, or results from, fundamental research, and is intended to be published is not subject to the EAR. 

In the ITAR, fundamental research is defined in the context of the definition of “Public Domain,” which is defined as information that is published and generally accessible or available to the public in a number of ways, including through fundamental research.  Under the ITAR, fundamental research is defined as basic and applied 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, as distinguished from research the results of which are restricted for proprietary reasons or due to specific U.S. government access and dissemination controls.  University research will not be considered fundamental research if 1) NYU or its researchers accept restrictions on publication of scientific and technical information resulting from the project or activity, or (2) the research is funded by the U.S. government and specific access and dissemination controls protecting information resulting from the research are applicable.

Given the significance of the FRE, preserving its application is usually a priority but note that there are explicit limitations.  The major considerations that can invalidate the FRE are 1) accepting restrictions on publication of the research results imposed by the sponsor (except a delay for a limited pre-publication review by the sponsor), or 2) accepting restrictions on participation of Foreign Nationals in the conduct of the research.  This is true whether or not those restrictions are expressly stated in an agreement.  Accordingly, it is beneficial to include a statement in research proposals submitted to extramural sponsors that the proposed scope of work is fundamental research as described in National Security Decision Directive 189 dated September 21, 1985, the Undersecretary of Defense memoranda on Fundamental Research dated May 24, 2010 and Contracted Fundamental Research dated June 26, 2008. 

  b.   FRE Applicability

There are a number of activities and items that do not fall within the FRE and for which an export license may be required.  Some examples of activities and items that do not fall within the FRE are provided below: 

• Physical items, such as prototypes, instruments, samples, materials or products resulting from or used for fundamental research
• Proprietary or confidential information used in conducting fundamental research
• Encryption software
• Defense Articles
• Defense Services
• Transactions with, or travel to, embargoed or sanctioned countries
• Transactions with Restricted Parties
  

c. Controlled Technology

Any item, component, material, software, source code, object code, other commodity, or service specifically identified on the CCL or the USML is deemed “Controlled Technology.”  Foreign Nationals may only be allowed access to Controlled Technology pursuant to NYU oversight provided such access and participation is permitted by U.S. Export Control Laws or authorized in a license or other authorization issued by the appropriate federal agency.  Controlled Technology may include, but is not limited to, NYU laptops, cell phones, and other devices as well as technical information subject to publication/dissemination restrictions, which may include research results.

Faculty members wishing to use (or authorize students or staff to use) Controlled Technology or work on a project intended to generate Controlled Technology, regardless of funding source, must ensure a TCP is developed with the assistance of OEC and approved by OEC, OGC, and/or other necessary officials or departments. 

Faculty members wishing to engage in research subject to restrictions, including publication/dissemination restrictions and/or restrictions on participation of Foreign Nationals must obtain the approval of their department chair, dean, and the Vice Provost for Research (or their respective designees) and receive clearance from OEC before NYU may accept the restriction and finalize the agreement.  No procurement, grant, contract or other agreement to produce or obtain Controlled Technology may be finalized until the TCP has been approved and the required authorizations have been obtained.

International travel with Controlled Technology is considered an export and subject to this Policy.  Controlled Technology may include, but is not limited to, NYU laptops, cell phones, and other devices as well as technical information subject to publication or dissemination restrictions, which may include research results.  

International shipments of physical items are subject to this Policy.  They require prior review and approval by OEC and must be carried out via NYU’s Logistics Department to prevent unauthorized Exports of Controlled Technology.

d. Controlled Activities

Any activity involving the export of Controlled Technology or that due to its nature or the parties involved is otherwise subject to Export Control Laws is deemed a “Controlled Activity.”  NYU shall decide whether to engage in a particular Controlled Activity if appropriate.  This determination will consider multiple factors, including but not limited to the nature of the relevant restrictions, whether adequate time exists to assess the activity and, if necessary, obtain licenses or other required authorizations from the relevant federal agency, and other factors (such as NYU’s commitment to Openness of Research and its academic mission).

3. Roles and Responsibilities

This Policy sets forth the roles and responsibilities of NYU as an institution as well as of individual members of the University Community with respect to compliance with Export Control Laws as follows:   

Role	Summary of Responsibilities
All members of the University Community	Complying with Export Control Laws, this Policy, and applicable procedures developed to implement this Policy Seeking guidance from OEC or other designated officials or departments regarding Export Control Laws Identifying and referring potential Export Control Laws-related compliance risks, inquiries, or concerns to OEC Receiving adequate Export Controls Laws training as necessary for their role
Faculty/ Researchers/ Investigators	Primary responsibility for good faith and diligent determination (including consulting with OEC as necessary) as to whether an activity or item is covered by Export Control Laws Ensuring that the FRE is preserved or that the required permission has been obtained to engage in research subject to restrictions Ensuring that Controlled Technology and Controlled Activities are identified, approved, and properly licensed if necessary Ensuring that all exports and deemed exports are carried out in compliance with Export Control Laws and this Policy Complying with the terms and conditions of funding awards and other agreements Complying with NYU processes for TCPs Seeking advice from OEC when acquiring proprietary (non-public) information or items Ensuring that staff, students, trainees, visitors and volunteers under their supervision are made aware of any applicable requirements (including regulatory or NYU/sponsor-imposed requirements) and have received adequate Export Controls Laws training as necessary for their role
Academic & Administrative Units globally	Assisting OEC in the delivery of compliance communications and training for faculty, staff, researchers, and the broader research and academic community regarding Export Control Laws and this Policy Implementing processes that promote compliance with Export Control Laws and this Policy, including forms, checklists, and other tools, in consultation with OEC
OEC	Acting as the University Community’s principal point of contact for Export Control Laws-related matters Assisting faculty in making a determination as to whether Export Control Laws apply to a particular item or activity Managing NYU’s Trade Compliance Program, including developing and implementing relevant training and guidance, procedures, resources and tools (forms, checklists, etc.), as well as conducting Restricted Party screening Monitoring compliance with Export Control Laws and this Policy Coordinating with key NYU departments globally on export controls matters Reviewing research proposals and award instruments for potential Export Control Laws issues Conducting deemed export/reexport reviews for Foreign Nationals Developing TCPs in collaboration with faculty Preparing export license or authorization applications and submitting regulatory clarification requests to federalagencies in consultation with the OGC, designated officials or departments, and outside counsel or consultants, as appropriate Reviewing and investigating potential Export Control Laws-related compliance concerns

 

4. Training and Guidance

As part of NYU’s Export Compliance Program, a number of training and guidance resources are available on the OEC website. Questions may also be sent to nyucompliance@nyu.edu.

5. Reporting

Members of the University Community should report immediately any suspected or actual violations of this Policy or Export Controls Laws to nyucompliance@nyu.edu or the NYU Reporting Line.

6. Consequences of Violations

Failure to comply with the requirements of this Policy may result in a violation of Export Control Laws, for which substantial individual and/or institutional penalties, including criminal penalties, may be assessed.  In addition, failure to comply with the requirements of this Policy may result in loss of funding and disciplinary action, up to and including termination.  Third parties who violate this Policy are subject to termination of all relationships with NYU. 

7. Recordkeeping

NYU is required to maintain all relevant records for a period of five (5) years from the date of the transaction (i.e., research project, shipment, academic travel, etc.), unless a regulatory agency has recordkeeping requirements exceeding the five-year retention period.