Introduction to Trade Compliance - FAQs
It is the policy of New York University (NYU) to comply with all U.S. export and import control laws, as well as the economic and trade sanctions. To ensure compliance, NYU established a regulatory trade compliance program. Please see the Frequently Asked Questions below to determine which regulations might apply to you research activities.
What You Should Know...
What is the "University Community" to which this area of compliance applies?
University Community: The following persons associated with the University and its affiliates (including NYU’s portal campuses, global sites, and related NYU entities): (a) faculty, including visiting faculty, (b) researchers, including persons conducting research at or under the auspices of the University, (c) employees, (d) volunteers, (e) fellows, trainees and post-doctoral appointees, (f) students, (g) the Board of Trustees, (“Board”), and (h) others who are performing activities or providing services at or under the auspices of the University, including consultants, vendors, and contractors. All members of the University Community must comply with the applicable export and import regulations, as well as the economic and trade sanctions, wherever located at all times.
Why is trade compliance important to you?
Whether exporting, importing, or just working from the comfort of your office chair - regulatory trade affects a broad range of University activities.
Following the events of September 11, 2001 in the United States, there has been a heightened level of awareness and scrutiny of all export activities with an emphasis on enforcement by the United States Government. Federal agencies are increasingly focused on universities and their compliance with regulations. Non-compliance can lead to substantial and severe criminal and monetary penalties imposed on both the individual(s) who committed the violation(s) as well as the institution, not to mention the possibility of spending time in prison, having licenses revoked and any other consequences that the government deems appropriate. In addition, civil penalties can be applied which can also carry significant monetary penalties and other administrative restrictions.
What are export controls?
These are a set of laws and regulations that govern how an item may be exported out of a country. Depending on the item, the end-use, and/or the end-user, an export license or other type of government authorization may be required.
What are import controls?
These are a set of laws and regulations that govern the types of items that may be imported into a particular country. Depending on the item, an import license may be required. In some situations, certain items may be prohibited entirely from entering the destination country. This prohibition could be for any number of reasons. Thus, just because an item can be exported from its origin does not mean it can be imported to its destination.
What are economic and trade sanctions?
These are laws and regulations that govern certain types of activities, such as travel and other services. Depending on the activity, a license may be required in advance of engaging in such transactions.
Is there more than one way to export?
Yes! When we think of exporting, we tend to envision a parcel being sent overseas. However, exporting can occur through just about any means such as telephone calls, emails, lab tours, meetings, computer data, visual inspection, instruction, oral exchanges, screen shots, auditory (eavesdropping), shared drives, and online data storage (the "cloud").
In addition, the "deemed export rule" is of special concern with universities. When an item that is controlled is released (or exported) to a foreign national who is located in the United States, it is deemed as if it were exported to that individual's home country. Thus, in a university setting, it is important that items such as unpublished research findings, funds, computers, lasers, and other high-technology items are not released to a foreign national without the proper authorization in place first.
The deemed export rule is not a term used by all regulatory agencies, but the concept is. As is true for many other territories, such as the European Union and Australia.
Who is considered a foreign national?
A foreign national is anyone that is not a natural born U.S. Citizen, permanent U.S. resident (green card holder), or protected person under the refugee or asylum status. This includes all persons in the United States as students, business people, scholars, researchers, technical experts, etc.
A foreign national also includes any foreign corporation, business association, partnership or other entity or group that is not incorporated to do business in the U.S. This includes international organizations, foreign governments and any agency or subdivision of foreign governments such as consulates.
It is important to remember that when traveling internationally, although a U.S. person is subject to U.S. jurisdiction, the traveler is also subject to the laws and regulations of the country they are in and is considered a foreign national in that country.
What University activities are affected by trade compliance?
- Traveling overseas - whether on University business, to attend a conference or meeting, or to conduct field research.
- Sponsored research and Non-Sponsored research.
- Consulting or other types of collaboration - even when there is no exchange of funds.
- Logistics - Shipping / Receiving.
- Distance learning courses.
- Development of prototypes.
What kinds of items are controlled by trade compliance?
- Advanced computer, microelectronics and telecommunications.
- Advanced avionics and navigation, including space-related technologies and prototypes.
- Applied physics (e.g., lasers and directed energy systems).
- Bioreactor systems.
- Biotech and Biomed engineering.
- Chemicals (including academic medical center and health sciences research).
- Chemical Agents (e.g., Lyssavirus, Chlamydia psittaci, HT-2 toxin, etc.).
- High Performance Computers.
- Information security and encryption; cyberintelligence.
- Marine technologies (e.g., hydrophones, SONAR, AUV)
- Sensors, sensor technology, imaging.
- Sophisticated machine tool technologies and bearings.
- Software for process control that is specifically configured to control or initiate production of chemicals that are controlled.
This is not an inclusive list; please consult with Office of Compliance and Risk Management (OCRM) for additional guidance.
How do I determine if something is controlled?
The best thing to do is contact OCRM for assistance.
If you are procuring an item, ask the vendor for the export classification. This may be a 5-digit alphanumeric sequence (e.g., 7A994, EAR99), or it could also be a Roman numeral sequence (e.g., VII(h), XI(a)). Once you have this information, contact OCRM for additional guidance in understanding the level of control and other restrictions that may be associated with the item.
If you are asked to sign an assurance statement of compliance with export controls, do not sign it and contact OCRM immediately.
If you are traveling to a U.S. embargoed or restricted country, contact OCRM well in advance of your departure. If a license or other government authorization is required, it could take 4 months or longer to obtain the approval from the U.S. Government.
When in doubt - ASK! OCRM is ready to assist all members of the University Community.
What is the Fundamental Research Exclusion?
The Fundamental Research Exclusion (FRE) is something that all universities strive to maintain within their research in order to avoid some of the restrictions that export controls can impose. However, there are five (5) conditions that must be met in order for the FRE to be applicable:
- No publication restrictions can be accepted as part of the research agreement, either verbally or in writing.
- No foreign national restrictions can be accepted as part of the research agreement, either verbally or in writing.
- The scope of the project does not constitute development.
- The scope of the project must constitute either basic or applied research.
- The research project must be conducted at an accredited institution of higher learning in the United States.
Even when all five conditions are met, export controls may still apply to the actual materials, items, or technologies involved in or resulting from the research.
What is the Education Information Exclusion?
This exclusion applies to information that is normally taught or released by the university as part of the normal instruction in a catalog course or in an associated teaching laboratory.
What is the Public Information Exclusion?
This exclusion pertains to information that is already published or is out in the public domain. Exams of information in the public domain include: books; newspapers; pamphlets; publicly available technology and software; information presented at conferences, meetings, and seminars which are open to the public; information included in published patents; websites that are freely accessible by the public.
How To Comply...
What steps can be taken to ensure compliance with trade regulations is achieved?
First - do not hesitate to contact OCRM for guidance and assistance. Making assumptions, no matter how reasonable they may be, could lead to committing a violation.
Next - with research, understand the project and not just the objective. Principle Investigators (PIs) and others that are part of the management team need to be aware and monitor items that are considered sensitive or export controlled. This includes the equipment being used for the research. Keeping an inventory of items in the lab/work space and establishing a technology control plan (TCP) will help in managing the project as well as the department.
Be aware of your surroundings. Do not talk to someone about sensitive information unless it is behind closed doors or through secured resources. Share-Point, Skype, NetMeetings or DropBox are examples of collaboration tools that do not provide the level of security needed to communicate sensitive or export controlled information.
Know the people you are working with. Verify with your supervisor, PI, or sponsor, as to whom is authorized to receive sensitive information you are working on. Do not make any assumptions.
Lastly, contact OCRM.
How long do records need to be retained?
All records pertaining to activities or transactions where trade compliance is evident, must be retained for at least 5 years from the completion of the transaction.
Example A: A research project which included export controlled data began in 2013 and will complete in December 2015. All records must be retained until January 2021.
Example B: Equipment subject to export controls that was legally shipped from the U.S. to a foreign country in 2009. The equipment has a life expectancy of 10 years. In 2015, the equipment needed to be returned to the U.S. for repair. In order to prove that the equipment was legally exported, a copy of the documentation from 2009 must be presented. Because the repair will now extend the life expectancy, the records from the 2009 shipment must still be maintained until the equipment has reached its end of life or has been destroyed.
Is there any online training available?
YES! The University is proud to provide training for Export Compliance through the Collaborative Institutional Training Initiative (CITI) Program. This web-based training series was launched in April 2015 and provides an introduction to export compliance, as well as role and responsibility tailored modules reflecting key individuals and departments across organizations. Currently there are 11 topic-specific modules to choose from which includes:
- Introduction to Basic Export Compliance
- Export Compliance and Sanctioned Countries
- Export Compliance and Collaborations
- Export Compliance for Researchers, Parts 1 and 2
- Export Compliance for Research Administrators
- Export Compliance and Biosafety
- Export Compliance and International Shipping
- Export Compliance and Purchasing
- Export Compliance and Operational Departments
- Export Compliance and International Waters
Not every module has to be taken. It is recommended that modules that affect a particular role or area of responsibility should be chosen. However, it is strongly recommended that the "Introduction to Basic Export Compliance" be taken first as this will set the foundation and compliment the topic-specific modules.
Is there any live / in-person training available?
Absolutely! OCRM is available to conduct training for your office, department, or research team. No size is too little or too big.
It is recommended that to be effective, 45 minutes is allotted to conduct the training with 15 minutes for Q&A.
Contact OCRM directly to inquire about live / in-person training today!