Export Controls 101:
The Basics
ROSEMARY RUFF
APRIL 2, 2012
WHAT ARE EXPORT CONTROLS?
 US laws that regulate the transfer of items,
technology, software, and services to foreign persons
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Export Administration Regulations (EAR, 15 CFR 730, U.S.
Department of Commerce)
International Traffic in Arms Regulations (ITAR, 22 CFR 120130, U.S. Department of State)
EXCLUSIONS FROM CONTROLS
 Education
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Information concerning general scientific, mathematical or engineering
principles commonly taught in colleges or universities. Applies only to
information released during catalog-listed courses (through lectures, course
materials, or instruction in laboratories) at –
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US Universities for ITAR-USML items
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Any University for EAR-CCL items.
 Fundamental Research
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Information arising during or resulting from basic and applied research in
science and engineering at an accredited U.S. institution of higher learning
where the resulting information is ordinarily published and shared broadly
in the scientific community
EXCLUSIONS FROM CONTROLS
 Public Domain
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Information generally accessible to the public in any form, including
information:
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readily available at libraries open to the public or at university libraries
in patents and published patent applications available at any patent office
released at an open conference, meeting, seminar, trade show, or other
open gathering
published in periodicals, books, print, electronic, or other media available
for general distribution (including websites that provide free uncontrolled
access) or for distribution to a community of persons interested in the
subject matter, such as those in a scientific or engineering discipline,
either free or at a price that does not exceed the cost of reproduction and
distribution
SO WHAT’S THE BIG DEAL?
 Many contractual terms can affect our “fundamental
research exemption”
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Restrictions on publications/information dissemination
Ownership of intellectual property
Restriction on employee participation
Explicit incorporation of statutory controls
WHAT’S AN EXPORT?
 Physical transfers of items outside the U.S.
 Electronic transfer (disks, RAM sticks, etc.) of
software or technical data outside the U.S.
 Release or disclosure of software or technical data to
any foreign person by e-mail, Internet, phone/fax,
in-person (oral communication), or visual inspection
 Application of controlled data outside the U.S.
ARE THERE OTHER TYPES OF EXPORT?
 “Deemed Export” — disclosure of technology to a
foreign person in the United States. Carries same
penalties and imprisonment as disclosure abroad.
 “Reexport” — an export of a controlled item of
U.S.-origin from one foreign country to another
WHAT IS A FOREIGN PERSON?
 A U.S. Person is a person who is a U.S. citizen, a
U.S. legal permanent resident (“green card”
holder) or an asylee/refugee under Federal
regulation.
 A U.S. corporation, partnership, trust, society or
other entity incorporated or organized to do
business in the United States is also a U.S. Person.
 Everyone else is a Foreign Person.
F-1, J-1, H-1B, O-1 visa holders are
Foreign Persons!
WHAT ARE THOSE REGULATIONS AGAIN?
 Export Administration Regulations (EAR, 15 CFR
730, U.S. Department of Commerce)
 International Traffic in Arms Regulations (ITAR,
22 CFR 120-130, U.S. Department of State)
WHAT IS COVERED BY ITAR?
 Broad restrictions on
 Defense
Articles and Services
 Technical Data
 Items on the U.S. Munitions List (USML)
 21
Categories (including a “Miscellaneous”) all of
which have strict military applications
WHAT ARE SOME EXAMPLES?
 Launch vehicles, missiles, rockets
 Military aircraft and vehicles
 Military training and simulation
 Military electronics
 Personal Protective Gear/Equipment
 Toxicological agents, including chemical and biological
agents, and associated equipment
 Spacecraft systems and satellites
WHAT IS A DEFENSE ARTICLE?
 Any item listed on the USML
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Includes raw materials, components, parts, software, and related
technical data
 Any item specifically designed, developed or
modified for a military application
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Launch vehicles; missiles; rockets; military aircraft, vehicles, and
electronics
Military training and simulation
Military electronics
Toxicological agents, including chemical and biological agents, and
associated equipment
Spacecraft systems and satellites
WHAT IS TECHNICAL DATA?
 Information required for design, development,
production, manufacture, assembly, operation,
repair, testing, maintenance or modification of
Defense Articles
WHAT IS A DEFENSE SERVICE?
 Furnishing of assistance or training to a Foreign
Person in the design, development, engineering,
production, assembly, testing, processing,
manufacture, use, operation, overhaul, repair,
maintenance, or modification of Defense Articles
IS ITAR STRICT?
Absolutely!
 Almost all ITAR activities require a license from the
US Govt. prior to engaging in the controlled activity.
 Even proposal information may be controlled.
WHAT IS COVERED BY EAR?
 Items on the Commerce Control List (CCL) including
commercial as well as “dual-use” goods, software and
technology
 Almost every other commercial item you can think
of, even paper clips
WHAT IS ON THE THE CCL?
 Ten categories:
0-Nuclear Materials, Facilities & Equipment (and Miscellaneous
Items)
1-Materials, Chemicals, Microorganisms, and Toxins
2-Materials Processing
3-Electronics Design, Development and Production
4-Computers
5-Telecommunications and Information Security
6-Sensors and Lasers
7-Navigation and Avionics
8-Marine
9-Propulsion Systems, Space Vehicles and Related Equipment
WHAT IS AN ECCN?
Export Control Classification Number
Export Control Categories
0 = Nuclear materials, facilities and equipment (and
miscellaneous items)
1 = Materials, Chemicals, Microorganisms and Toxins
2 = Materials Processing
3 = Electronics
4 = Computers
5 = Telecommunications and Information Security
6 = Sensors and Lasers
7 = Navigation and Avionics
8 = Marine
9 = Propulsion Systems, Space Vehicles, and Related
Equipment
Five Product Groups
A. Systems, Equipment and Components
B. Test, Inspection and Production Equipment
C. Material
D. Software
E. Technology
Category 1, Product Group C
1C351 Human and zoonotic pathogens and
‘‘toxins
WHERE DO I GET AN ECCN?
 Check documentation received with
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equipment/materials
Ask the manufacturer/supplier/provider (at time of
purchase if possible)
Self-classify (access to instructions and EAR on
RSCP export control website)
Check manufacturer’s website (especially software
companies)
Ask RSCP to for assistance (NOTE: May require
request to BIS which takes 4-6 weeks)
DOES EVERYTHING HAVE AN ECCN?
 No. There are commercial goods not on the CCL.
These do not have an ECCN.
 These goods are “EAR99” and do not ordinarily
require a license unless the transaction involves a
sanctioned country, an end-user of concern, or are
intended for a prohibited end-use.
ECCN = MUST HAVE LICENSE, RIGHT?
 Not necessarily – CCL is country dependent and
there may be exceptions , e.g, Fundamental
Research, Public Domain, or Educational
Information
 Consult the Country Chart and the ECCN
 Check special requirements for sanctioned countries
 Request assistance from RSCP
ARE THERE OTHER FEDERAL AGENCIES?
 Treasury Department – Office of Foreign Assets Control
 Implements and oversees 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
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Certain countries and activities are “sanctioned”
http://www.treas.gov/offices/enforcement/ofac/programs/
WHO BESIDES STATE & COMMERCE?
Many federal agencies are charged with the control of
exports other than those listed above. Examples are
microorganisms, toxins, chemicals, drugs, endangered
species, medical devices, gas and electric power,
nuclear materials, freight shipments, vessels, etc.
E.g., USDA 7 CFR 331.3 (c) – PPQ Select Agents and
Toxins
What About Individuals?
 Denied Persons List A list of individuals and entities that have
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been denied export privileges.
Unverified List A list of parties where BIS has been unable to
verify the end-user in prior transactions.
Entity List A list of parties whose presence in a transaction can
trigger a license requirement under the Export Administration
Regulations.
Specially Designated Nationals List A list compiled by the
Treasury Department, Office of Foreign Assets Control (OFAC).
OFAC’s regulations may prohibit a transaction if a party on this list
is involved.
Debarred List Parties who are barred from participating directly
or indirectly in the export of defense articles or in the furnishing
defense services for which a license or approval is required by the
ITAR.
http://www.bis.doc.gov/complianceandenforcement/liststocheck.htm
UA RESPONSIBLE PARTIES
 Investigators
 Technicians/lab managers
 Secretarial/Clerical
 Students
 Custodians/Facilities Workers
OK – now that I have your attention… violation of
export controls is a personal, criminal liability.
Tier 1 RESPONSIBILITIES
 Investigators –
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Assess all research activities, sponsored and unsponsored, to identify
and classify controlled technology
Develop export control plan
Document training to all laboratory staff and students
Monitor access to all research facilities/ technology/information to
ensure proper control
Ensure that controlled technology is not released without an export
license
Notify RSCP of all potential export violations within 24 hours of
discovery
TIER 2 RESPONSIBILITIES
 RSSP – review proposals and awards to assist investigators with
identification and management of controlled activities
 RSCP – assist investigators with identification/classification
controlled items/activities, apply for licenses, seek advisory
opinions, provide training opportunities
 Office of General Counsel – review classification of controlled
activities — may refer to external counsel* if unable to
definitively classify an item
* Investigator/Unit is responsible for all costs incurred for external opinion.
Tier 3 Responsibilities
Administrators cassist investigators as needed to ensure
that appropriate controls are in place. Some examples:
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Identify immigration status of all laboratory personnel upon project
inception
Do not process payroll assignments without checking export control
status of project
Maintain security of research facilities and technology, e.g., don’t
“unlock the lab door” or provide copies of proposal, reports, etc.
without investigator approval
Ask Purchasing to request that suppliers provide ECCNs
INFORMATION AND ASSISTANCE
 RSCP Export Control Website
http://vpred.uark.edu/211.php
 Basic Training Materials
 Technology Control Plan Forms
 Links to responsible Federal agencies, regulations and control lists
 Assistance with identification and classification of controlled
technology
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Rosemary Ruff, RSCP– rruff@uark.edu, 575-4572
Jeff Amerine, OTL – jamerine@uark.edu, 575-2995
Mark Swaney, OTL, – mswaney@uark.edu, (479) 575-7243
Nathan McKinney, AGRI – nmckinne@uark.edu, 575-6591