Export Control Regulations
Basic Overview
Why Is Compliance
Important?
 Possibility of substantial fines
and imprisonment for violators
 Civil and criminal penalties, for
the individual and the institution
 Limiting participation of foreign
nationals in University research
is not realistic and contrary to
policy
Law and Regulations
Commerce
Department
State Department
Treasury
Department
Export Administration
Act
Arms Export Control
Act
Trading with the
Enemy Act, Int’l
Emergency Economic
Powers Act, & Others
Export Administration
Regulations (“EAR”)
15 C.F.R. Parts 700799
International Traffic in
Arms Regulations
(“ITAR”)
22 C.F.R. Parts 120130
Iraq Sanctions
Regulations,
Terrorism Sanctions
Regulations, &
Others
31 C.F.R. Parts 500599
Commerce Control List
U.S. Munitions List
List of Specially
Designated Nationals
& Blocked Persons
What Is an Export?
ITAR 120.17, EAR 734.2(b)
 An actual shipment or transmission of items subject to
the EAR or ITAR (commodity, technical data, or
software) out of the United States.
 Releasing (including oral or visual disclosure) “technical
data” or software “source code” to a “foreign person,”
in the United States (“deemed export”).
 “Foreign persons” is everyone other than a US citizen, a
permanent resident alien, & certain ‘protected
individuals’ (refugees and those with asylum); it
includes any company not incorporated in the United
States.
Examples of Exports
SHIPPING OUT of US
 Physical shipments or hand
carried items
 Release of technical data or
software in a foreign country
RELEASING INFO in US
 Release of source code to a
foreign national in the US
 Release of technical data to a
foreign national in the US
 Inspections of U.S. equipment and
facilities by a foreign national
Examples of Items Covered by
Category 3 - Electronics
Category
Example
Systems, Equip
& Components
Mass Spectrometers & Pulse Amplifiers
Test, Inspection,
& Prod. Equip.
Equipment for the manufacturing of production
semiconductor devices or material
Materials
Hetero-epitaxial materials consisting of a “substrate”
having stacked epitaxially grown multiple layers of:
silicon, germanium, or compounds of gallium or
indium
Software
Computer-aided design software designed for
semiconductor devices or integrated circuits having
any of the following: design rules or circuit verification
rules, simulation of the physically laid out circuits, or
lithographic processing simulators for design
Technology
Technical data for the development of production of
any of the above items
Example: Shipment of Polygraph
(Basic Steps)
 Step 1 - Classification of item. Start by looking in
the Commerce Control List under the category of
electronics (Category 3) and product group which
covers equipment (Product Group A). Then read
through the list to find whether your item is included
in the list. The ECCN for polygraphs is 3A981.
 Step 2 – License requirements. These list the
reason that the item is controlled. Polygraphs are
controlled for “CC”, or crime control.
Example: Shipment of Polygraph
(Basic Steps)
 Step 3 – Destination Country. Check whether a
license is required for the country.
Example: Shipment of Polygraph
(Basic Steps)
 Step 4 – Screening. Certain individuals and
organizations are prohibited from receiving U.S.
exports.
 Entity List – BIS list of organizations identified as
engaging in activities related to the proliferation
of WMD.
 Specially Designated Nationals and Blocked
Persons List – OFAC list of individuals and
organizations representing restricted countries or
known to be involved in terrorism or narcotics
trafficking.
 Unverified List – BIS list of firms for which it was
unable to complete an end-use check.
Examples of Items Covered by Category 1
Materials, Chem, Microorganisms, & Toxins
Category
Systems, Equip
& Components
Example
Chemical Agents, including tear gas containing 1% or less
of CS or CN, except containers net wt <20gm
Test, Inspection, & Electrolytic cells for fluorine production with a production
Prod. Equip.
capacity >250 g of fluorine per hour
Materials
Chemical precursors for toxic chemical agents (1C350)
(Examples: benzilic acid; sodium bifluoride); human
pathogens, zoonoses, and “toxins” (1C351) (Examples:
Rickettsia rickettsii, Chlamydia psittaci); animal pathogens
(1C352) (Example: goat pox virus); plant pathogens
(1C354) (Example: Puccinia graminis)
Software
“Software” for process control that is specifically
configured to control or initiate “production” of chemicals
controlled by 1C350
Technology
Technical data for the development of production of any of
the above items
Technical Data & Technology
ITAR 120.10, EAR 772.1
 ITAR 120.10 defines “technical data” as
 Information . . . required for the design,
development production, manufacture,
assembly, operation, repair, testing,
maintenance, or modification of defense articles;
Invention covered by secrecy order; and
Software directly related to defense article.
 EAR 772.1 defines “technology” as
 Specific information necessary for the
“development,” “production,” or “use” of a
product. “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, read-only memories.
What is Not Controlled
(Within the Safe Harbor)
Technical Data & Software (ITAR 120.10, EAR 772.1)
What is not export controlled “technical data” or “software”?
 Publicly available technical data and software
 Published for sale, in libraries open to the public, or
through patents available at any patent office
 General scientific, mathematical, or engineering
principles commonly taught in colleges and universities
 Available through unlimited distribution at a conference,
meeting, seminar, trade show, or exhibition (provided
no previous government or industry restrictions on
distribution applied)
 Arises during or results from fundamental research,
where no restrictions on publication or access accepted
 Non-technical contract or business documents
What is Not Fundamental Research?
 Given this definition of fundamental research, university
research will not qualify as fundamental research if
 The university or research institution accepts any
restrictions on the publication of the information resulting
from the research, other than limited prepublication
reviews by research sponsors to prevent inadvertent
divulging of proprietary information provided to the
research by the sponsor or to ensure that publication will
not compromise patent rights of the sponsor; or
 The research is Federally-funded and specific access and
dissemination controls regarding the resulting information
have been accepted by the university or researcher.
Elements of a Campus
Export Compliance Plan
Shipping Items Out of the U.S.
 Do NOT ship any item outside the U.S. without first checking the
ITAR and EAR lists to determine if the item is controlled. Secure
a license or verify license exception PRIOR to shipment for all
controlled items
 Identify knowledgeable campus ‘point of contact’
 Create ‘export team’ of: mailing department; technology transfer
and licensing personnel; EH&S; others
 Train MSO’s and departmental staff re: shipment of ‘things’ or
tangible items
 Identify projects with ‘deliverables’ to foreign countries at the
proposal/award stage
 Outreach to faculty in key departments
Keeping Contracts Free of
Controls
 Do NOT enter into secrecy agreements or otherwise agree to
withhold results in project conducted at the University or that involve
University facilities, students or staff
 Train personnel who enter into UC agreements to not accept
controls on access of dissemination:




Sponsored Projects
Material Management/Purchasing
Licensing In Agreements, such as Software
Others
 Train faculty on why this is important
Technical Data Exchange:
Faculty “To Do” Actions
Make sure that technical data about export controlled
commodities qualifies as “public domain” (ITAR term) or
“publicly available” (EAR term), by any of the following means:
 Published Information: in journals, books, open websites, or other
media available to a community of persons interested in the
subject; readily available at university libraries (See EAR 774,
Supplement 1, Questions A(1) - A(6))
 Published through release at open conferences and meetings
 Educational Information: released by instruction in catalog
courses and associated teaching laboratories of the University
 Fundamental Research: where the resulting information is
ordinarily published and shared broadly within the scientific
community and where no contractual controls have been accepted
Technical Data Exchange:
Faculty “Don’t Do” Actions
 Do NOT enter into proprietary data agreements where the
commercial entity includes an export control ‘notice’, or restricts
dissemination to others on the basis of nationality or citizenship.
 Do NOT sign the DD2345, Militarily Critical Technical Data
Agreement, as a condition of attending a conference or receiving
materials from the government.
 Do NOT accept data from a commercial contractor that is marked
“export controlled”.
 Review any Confidentiality/Non-Disclosure Agreements to insure
that UC and you are not assuming the burden of restricting
dissemination based on citizenship status or securing licenses.
Software: Faculty “To Do” Actions
 Whenever possible, make University created software,
“publicly available”
 If the source code of a software program is publicly available,
then the machine readable code compiled from the source
code is software that is publicly available and, therefore, not
subject to the EAR (See EAR 734, Supplement 1, Question
G(1))
 The cost of reproduction and distribution may include variable
and fixed allocations of overhead and normal profit for the
reproduction and distribution functions but may not include
recovery for development, design, or acquisition, such that the
provider does not receive a fee for the inherent value of the
software. (See EAR 734, Supplement 1, Question G(2))
 For encryption software, the source code and corresponding
object code resulting from compiling such source code, may
be posted on the internet where it may be downloaded by
anyone, as long as Commerce is notified of the internet
location or is provided a copy of the source code (See EAR,
Part 740.13)
Software: Faculty & Admin
“Don’t Do” Actions
 Do not agree to software license restrictions on
 access to or use of the software by nationals of
certain countries, particularly those from Country
Group D; or
 dissemination of the ‘direct product’ of the software.
 Ask the software provider to identify the ECCN that
controls the software, and research the applicability of
control, given the possibility that the software provider
is being overly cautious and the software is not, in fact,
controlled.
What can you take with you overseas?
Exception TMP: “Tools of Trade”
 Usual and reasonable kinds and quantities of tools of trade
(commodities and software) for use by the exporter or
employees of the exporter in a lawful enterprise.
 The tools of trade must remain under the effective control of the
exporter or the exporter’s employee (retain physical possession
of the item, locked in hotel safe, or guarded).
 Encryption commodities and software may be pre-loaded on a
laptop, handheld device or other computer or equipment.
 All tools of trade may accompany the individual departing from
the US or may be shipped unaccompanied within one month
before the individual’s departure from the US, or at any time
after departure.
License Exception TMP
Temporary: “Tools of Trade”
 All commodities and software, if not consumed or
destroyed in the normal course of authorized temporary
use abroad, must be returned as soon as practicable
but no later than one year after the date of export.
 No tools of the trade may be taken to Cuba, Libya, or
Sudan.
 Reference 15 CFR Part 740.9(a)(2)(i) for TMP “Tools of
Trade” License Exception.
Research in
Embargoed Countries
 Do NOT travel to Cuba, Iran, Iraq, Libya
North Korea, Sudan,or Syria, for research or
educational activities without first contacting
the campus VC-Research to secure a
license from the Office of Foreign Assets
Control. These are embargoed countries. A
general license for Cuba may cover you; all
other countries require a specific license.