Export Controls - Overview
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Basics
Why?
Terms
Exclusions and Exemptions
Areas of Concern
UMBC Management of EC
Case Studies
ORA/Protections and Compliance
http://www.umbc.edu/research/1
Basics
What are Export Controls?
• Regulations that control distribution of
certain exports to foreign nationals and
foreign countries
• Have been around since the 1940s
• Extend beyond just research
• Need license before you can export
ORA/Protections and Compliance
http://www.umbc.edu/research/2
Basics
What is an Export?
• Transfer of Controlled:
Technology
Information
Equipment
Software
Source Code
Services (ITAR)
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– A non-U.S. entity or individual, wherever located (Deemed export )
– Anyone outside the U.S., including U.S. citizens
• By Any Means:
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Actual shipment outside the US
Visual inspection in or outside the US
FAX – PHONE – EMAIL – FACE to FACE
Tours of labs
Training sessions
Computer data
ORA/Protections and Compliance
http://www.umbc.edu/research/3
Basics
What is a “Deemed” Export?
• The transfer, release or disclosure of
Technical Data or Technology to a foreign
national within the United States
(includes university campuses).
• A transfer is the same as exporting it to
the home country of foreign national.
ORA/Protections and Compliance
http://www.umbc.edu/research/4
Basics
Who are U.S. Persons?
– U.S. citizens
– Aliens who are “Lawful Permanent
Residents” (Green Card holders)
– Other “Protected Individuals”
– designated an asylee or refugee
– a temporary resident under amnesty
provision
– Any entity incorporated to do business in the
U.S.
ORA/Protections and Compliance
http://www.umbc.edu/research/5
Basics
Who are Foreign Persons?
Everyone else:
• Any foreign interest or any US Person effectively
owned or controlled by a foreign interest
– Includes foreign businesses not incorporated in the U.S.,
persons representing other Foreign Persons, any foreign
government
– Includes: H1B Work Visa, F1 Study Visa, J1 Training Visa, E1
Investors Visa, TN Work Visa, L1 Intra-Company Transfer Visa,
K and V Fiancée Visas
EAR does not use the term foreign person - instead it refers to
“foreign national”- they mean the same thing
ORA/Protections and Compliance
http://www.umbc.edu/research/6
Basics - Application
• Applies to following UMBC areas:
* Research
* MTA, CDA, LA
* Shipping
* Foreign Travel
* Foreign Students
* Purchasing
* Human Resources
* Visiting Faculty – Foreign Nationals
* International Education
• Export control laws apply to all activities – not just
sponsored research projects
•Your award does not have to cite the regulations for export
controls to apply
ORA/Protections and Compliance
http://www.umbc.edu/research/7
Export Controls
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Basics
Why?
Terms
Exclusions and Exemptions
Areas of Concern
UMBC Management of EC
Case Studies
ORA/Protections and Compliance
http://www.umbc.edu/research/8
Why is this important?
• Protect National Security & US foreign
obligations
• Combat Terrorism
• Prevent spread of weapons of mass
destruction (nuclear, chemical, biological,
missiles, etc)
ORA/Protections and Compliance
http://www.umbc.edu/research/9
Why - Liability and Violations
• Individual & institutional penalties:
• Large fines & jail time ($500K Civil & $1M Criminal)
• Multiple violations/finding for same occurrence
• Not just you - Could result in UMBC wide:
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All settlements public
Draconian compliance and reporting
Loss of export privileges (exporting is not a right)
Adverse impact on federal awards
ORA/Protections and Compliance
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http://www.umbc.edu/research/
Why - University Violations
– U of Tenn – Roth – Fine & Jail time – ITAR.
– UCLA - Supported a conference in Iran – OFAC
– UC Santa Cruz civil enforcement action: 5 yr
look-back rule
– Texas Tech - Butler - Select Agent export to
Tanzania 2 yrs in prison & $37,400 fine
• Voluntary disclosure helps
ORA/Protections and Compliance
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http://www.umbc.edu/research/
Why – Maryland Issues - HSI
- Specs in English pg #’s in Arabic – Company front for Iran.
- Chinese Gov using Weather research as cover
- Singapore Co. trying to get 747 flight simulator - Iran.
RED FLAGS
- Foreign Freight forwarders
- Partner declines technical assistance/maintenance
- Anything through United Arab Emirates, Malaysia, South
East Asia
ORA/Protections and Compliance
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http://www.umbc.edu/research/
Export Controls
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Basics
Why?
Terms
Exclusions and Exemptions
Areas of Concern
UMBC Management of EC
Case Studies
ORA/Protections and Compliance
13
http://www.umbc.edu/research/
Most Common US Agencies
Department of
State
Department of
Commerce
Export Admin
Regulations
(EAR)
Bureau
of
Industry
and
Security
(BIS)
Trade
Protection
Regulates commercial goods
& Services with potential
military application
(Dual Use)
Commerce Control List (CCL)
ORA/Protections and Compliance
International
Traffic in Arms
Regulations
(ITAR)
National
Security
Export of articles, services
& related technical data
that are military in nature
US Munitions List (USML)
Department of
Treasury
Directorate
of Defense
Trade
Controls
(DDTC)
Office of
Foreign Assets
Control (OFAC)
Trade
Embargos
Sanctions against:
Foreign Countries & Gov
Terrorists, Narcotics, War
Criminals, Weapons
Proliferators
http://www.umbc.edu/research/
Terms
Dept of Commerce/BIS
Export Administration Regulations (EAR)
(15 CFR §§734-774)
• The Commerce Control List (CCL) covers
commodities, technology & software identified by
an Export Control Classification Number (ECCN).
• Goods and Services having a “dual use”
(commercial with military application)
ORA/Protections and Compliance
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Terms
EAR – Commerce Control List Categories
• Category 0 - Nuclear Materials, Facilities & Equipment (and
Miscellaneous Items)
• Category 1 - Materials, Chemicals, Microorganisms, and Toxins
• Category 2 - Materials Processing
• Category 3 – Electronics
• Category 4 – Computers
• Category 5 (Part 1) – Telecommunications
• Category 5 (Part 2) - Information Security
• Category 6 - Sensors and Lasers
• Category 7 - Navigation and Avionics
• Category 8 – Marine
• Category 9 - Propulsion Systems, Space Vehicles and Related
Equipment
ORA/Protections and Compliance
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http://www.umbc.edu/research/
Terms
Dept of State
International Traffic in Arms Regulations (ITAR)
22 CFR Parts 120-130
• US Munitions List (USML) covers military articles,
services and related technical data
Prior Authorization required for:
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Sending or taking out of U.S. in any manner
Disclosing (including oral or visual disclosure)
Transferring to foreign person, whether in U.S. or abroad.
Performing a defense service on behalf of, or for the benefit of,
a foreign person, whether in the U.S. or abroad.
Certain information may be controlled even if in public
domain – Defense Services.
ORA/Protections and Compliance
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http://www.umbc.edu/research/
Terms
ITAR Munitions List
I – Firearms, Close Assault Weapons and Combat Shotguns
II – Guns and Armament
III – Ammunition/Ordnance
IV – Launch Vehicles, Guided & Ballistic Missiles, Rockets, Torpedoes,
Bombs and Mines
V – Explosives & Energetic Materials, Propellants, Incendiary Agents
VI – Vehicles of War & Special Naval Equipment
VII – Tanks and Military Vehicles
VIII – Aircraft and Associated Equipment
IX – Military Training Equipment and Training
XProtective Personnel Equipment and Shelters
ORA/Protections and Compliance
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Terms
ITAR Munitions List
XI – Military Electronics
XII – Fire Control, Range Finder, Optical and Guidance & Control Equip.
XIII – Auxiliary Military Equipment
XIV – Toxicological Agents, Including Chemical Agents, Biological Agents,
and Associated Equipment
XV – SPACECRAFT SYSTEMS AND ASSOCIATED EQUIPMENT
XVI – Nuclear Weapons, Design and Testing Related Items
XVII – Classified Articles, Technical Data and Defense Services
XVIII - Direct Energy Weapons
ORA/Protections and Compliance
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http://www.umbc.edu/research/
Terms
Dept of Treasury
The Office of Foreign Assets Control (OFAC)
31 CFR 500-599
Based on US foreign policy and national security
goals. They cover economic and trade sanctions
against targeted foreign countries, terrorists,
international narcotics traffickers, and those engaged
in activities related to the proliferation of weapons of
mass destruction.
ORA/Protections and Compliance
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http://www.umbc.edu/research/
Terms
OFAC Application
• OFAC license required for services to or from:
– Countries, entities, or individuals
• Covers Sanctions and Embargos
• May apply when ITAR & EAR do not
• Multiple lists must be checked (applies to entities and
individuals even if their country is not listed)
• Covers some practices (ie proliferation of WMD or diamond
trading)
• Restrictions vary by country
• Some exemptions apply for academic collaboration
ORA/Protections and Compliance
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http://www.umbc.edu/research/
Terms
OFAC Application
• Prohibits:
– Travel to embargoed countries
• (Balkans, Burma, Cote d’Ivoire, Cuba, DRC, Iran, Iraq,
Liberia, Lebanon, Libya, North Korea, Somalia, Sudan,
Syria, and Zimbabwe)
– Sanctions against Countries, Entities, Individuals
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Research, field-work, or instruction
Surveys or interviews
Trade – Importing merchandise
Furnishing anything of value (ie materials, payments,
services, honoraria, training)
• Collaborating, presenting or training
ORA/Protections and Compliance
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http://www.umbc.edu/research/
Terms
EAR & ITAR End User Controls/Prohibitions
• Separate from USML & CCL, ITAR & EAR prohibit
exports to, or export collaborations with, certain
designated entities or countries identified as export
violators both in and outside the U.S.
• So, CCL and USML may say no license is required in
general, but you need to also check their lists to
determine if more stringent restrictions apply to the
entity or country
– Don’t be fooled by their “Academic” names (Beihang
University, SW Institute of Env Testing, Chinese Academy of
Engineering Physics).
ORA/Protections and Compliance
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Terms
Their “Lists”
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Denied Persons List (BIS)
Unverified List (BIS)
Entity List (BIS)
Specially Designated Nationals List (OFAC)
Debarred List (DDTC)
Nonproliferation Sanctions (DDTC)
ORA/Protections and Compliance
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http://www.umbc.edu/research/
Export Controls
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Basics
Why?
Terms
Exclusions and Exemptions
Areas of Concern
UMBC Management of EC
Case Studies
ORA/Protections and Compliance
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http://www.umbc.edu/research/
Types of Exclusions and Exemptions
Exclusion – Outside the regulations not subject to the regulations
Exemption - License not required for item or activity as defined
within the regulations
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Public Domain Exclusion (ITAR,EAR,OFAC)
Fundamental Research Exclusion (ITAR, EAR)
Education Exclusion (ITAR, EAR)
License Exception TMP (Temporary Exports)
Full-Time Employee Exemption (ITAR)
Must be used correctly; failure may result in an export control
violation
ORA/Protections and Compliance
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http://www.umbc.edu/research/
Export Controls
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Basics
Why?
Terms
Exclusions and Exemptions
Areas of Concern
UMBC Management of EC
Case Studies
ORA/Protections and Compliance
27
http://www.umbc.edu/research/
Areas of Concern
Equipment or Biologic Use:
• No License required if FN “use” of controlled item is
routine. Must not include information beyond what is
publically available. However, TCP is required.
• A license may be required if FN is "using" the
controlled item in such a way as to access technical
information beyond what is publicly available. Applies
even if Fundamental Research.
ORA/Protections and Compliance
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http://www.umbc.edu/research/
Areas of Concern
TRAVEL
• Travel to embargoed countries
• (Balkans, Burma, Cote d’Ivoire, Cuba, Dem. Rep of
Congo, Iran, Iraq, Liberia, Lebanon, Libya, North Korea,
Somalia, Sudan, Syria, and Zimbabwe)
• Taking equipment (laptops, etc.), out of the country
may require a license for equipment or controlled
technology loaded on equipment
• Available license exceptions (must stay under effective
control)
– TMP temporary exports - Good for 1 yr
– BAG personal baggage
ORA/Protections and Compliance
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http://www.umbc.edu/research/
Areas of Concern
 Shipping equipment to a foreign country
 License required to ship if controlled by ITAR to any foreign country
(few exemptions).
 License may be required to ship equipment controlled under EAR out of
the US depending on what the equipment is, where it is being sent, who
will be using, and for what purpose (many exceptions)
 Process to classify equipment and obtain a license under EAR may
take several months
 Presumption under OFAC – any & all shipments of equipment and
provision of services to countries under sanction or persons in those
countries are ILLEGAL.
 Do not use foreign freight forwarders w/o EC review
 Collaborating with foreign colleagues in foreign
countries
 Teaching foreign persons how to use items in research
(“Defense Service”)
 Controlled software use in classes
ORA/Protections and Compliance
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http://www.umbc.edu/research/
Areas of Concern
• Sponsor publication approval or foreign
national restrictions
• Contracts with DoD, NASA, DHS, Intel
Agencies
• Proprietary technology research with industry
or government
• Accepting another party’s proprietary
information
• International sponsors, subcontractors
ORA/Protections and Compliance
3131
http://www.umbc.edu/research/
Areas of Concern
• Non-sponsored research at university
• Collaborating with a country subject to US
sanctions
• Projects in your garage
• Attending “closed” mtgs & conferences DD2345
• Faculty start-up companies (no FRE)
• Providing services (not research)
• Protecting students
• Consulting work
• MTA’s and NDA’s
3232
http://www.umbc.edu/research/
Export Controls
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Why?
Terms
Exclusions and Exemptions
Areas of Concern
UMBC Management of EC
Case Studies
ORA/Protections and Compliance
33
http://www.umbc.edu/research/
UMBC’s EC Management System
• Sponsored Programs
– Export Control Flow Chart and Questionnaire created
– Questions added to Routing sheet
– Practical EC training to OSP planned
• UMBC Community
– Created EC information web site
(found at
http://www.umbc.edu/research/ORPC/_
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Established EC Official & Legal - Dean & Dave
Work with Functional Departments (shipping, travel, etc)
Executed EC Policy
Outreach and training program
• Presented to Faculty (CBEE, IS, CSEE, JCET, ME, Physics)
• Add EC component to DRATT
• Presented to Admin groups (BRG, RAG, etc)
ORA/Protections and Compliance
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http://www.umbc.edu/research/
Export Controls
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Basics
Why?
Terms
Exclusions and Exemptions
Areas of Concern
UMBC Management of EC
Case Studies
ORA/Protections and Compliance
35
http://www.umbc.edu/research/
Export Controls – Case Study
• I am a researcher at UMBC. I am only conducting research on
campus with students and other faculty and don’t plan to ship
anything outside the United States. Do export controls affect me?
• Yes. An "export" also includes furnishing technical data to foreign
persons or releasing technology or software to foreign nationals
within the US and abroad. These types of exports are called
"deemed exports" because the regulations deem them to be the
equivalent of sending the same items (commodities, software,
technology, technical data, defense articles, services) to the foreign
national’s home country. Deemed exports can occur even when
providing technical data in the form of graphs, specifications, or
other technical information to a foreign student working in your lab.
Whether it is a deemed export depends on whether the items
provided is subject to and listed on the CCL or is considered
technical data under ITAR.
ORA/Protections and Compliance
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http://www.umbc.edu/research/
Export Controls - Case Study
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I will be traveling to China to do research work with my
collaborator, who is a faculty member at a university in Beijing. I
will be providing her with my research results from my studies at
UMBC but also undergoing further research at her lab. Do I need
to be concerned about export controls?
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Yes. Your research results produced at UMBC are considered
fundamental research results and fall under the fundamental
research exclusion. However, information resulting from your
research efforts in China does not fall within this exclusion from
the export control regulations. Any transfer of controlled
information to a foreign national, whether here or abroad, is
considered an export and may require a license. Please check
the CCL and USML to see whether your research in China will
involve controlled technology, information or software. If so,
please contact the Office of Research Protections and
Compliance to determine what your next step is in order to
undergo the collaboration.
ORA/Protections and Compliance
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http://www.umbc.edu/research/
Export Controls – Case Study
• I, along with another colleague, have received a request to provide
peer review guidance to Professor K at the University of Tehran,
whom both of us know well from international conferences. His work
is strictly civilian and would not appear to have any connection to
Iran’s government or military establishment. While I am a U.S. citizen,
my colleague is a British citizen living in the U.S., though originally
from Iran. He visits Iran occasionally on personal matters, and
mentions that Professor K is interested in strengthening his ties to UC
for professional and personal reasons. Can we provide the peer
review?
• Potentially, not without an OFAC license. As a U.S. citizen subject to
the OFAC rules, providing a peer review may constitute a service to
Iran and is therefore prohibited without an OFAC license. The fact that
you are not receiving compensation for the assistance or the Iranian
professor’s work is purely civilian does not matter for purposes of the
Iranian embargo regulation. While it is possible OFAC might grant
such a license, this cannot be assumed. As to your British colleague,
the fact he is living in the U.S. likely renders him subject to the same
restriction.
ORA/Protections and Compliance
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http://www.umbc.edu/research/
Export Controls – Case Study
I teach a grad course in the design and manufacture of very highspeed integrated circuitry. Many of the students are foreigners.
Do I need a license to teach this course? What if the students were
from countries that require a license? What if I talked about yet
unpublished results?
No. The release of information by instruction in catalog courses
and associated teaching laboratories of academic institutions is
not subject to EAR. Even if one of the students was from a
restricted country, or you talked about unpublished results from
your research lab.
ORA/Protections and Compliance
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http://www.umbc.edu/research/
Export Controls – Case Study
I have expertise in design and creation of submicron devices. I
have been asked to be a consultant for a “third-world” company
that wishes to manufacture such devices. Do I need a license?
Quite possibly. Applications abroad of personal knowledge or
technical experience acquired in the US constitutes an export of
that knowledge and experience and is subject to EAR. If any
part of the knowledge or experience your export or re-export
deals with technology that is listed under the CCL you may need
a license. Note: As a consultant you are outside the university.
ORA/Protections and Compliance
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http://www.umbc.edu/research/
www.umbc.edu/research/ORPC
Export Control Management
Contact:
Dean Drake
DDrake@UMBC.EDU
410-455-5642
ORA/Protections and Compliance
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http://www.umbc.edu/research/