Export Control Regulations
Campus Compliance
Issues for Consideration
Why Is Compliance
Important?
 Possibility of Substantial Fines
and Imprisonment for Violators
 Civil & Criminal Penalties, for the
Individual and the Institution
 Limiting participation of foreign
nationals in University research is
not realistic and contrary to policy
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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 700-799
International Traffic
in Arms Regulations
(“ITAR”)
22 C.F.R. Parts 120-130
Iraq Sanctions
Regulations,
Terrorism Sanctions
Regulations, & Others
31 C.F.R. Parts 500-599
Commerce Control List
U.S. Munitions List
List of Specially
Designated Nationals
& Blocked Persons
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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
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EXAMPLES OF EXPORTS





SHIPPING OUT of US
Physical Shipments or Hand Carry
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
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Examples of Items Covered by
Category 3 - Electronics
Category
Example
Systems, Equip, Mass Spectrometers & Pulse Amplifiers
& Components
Test, Inspection, Equipment for the manufacturing of production
&Prod Equip 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
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Examples of Items Covered by Category 1
Materials, Chem, Microorganisms, & Toxins
Category
Systems, Equip,
& Components
Test, Inspection,
&Prod Equip
Materials
Software
Technology
Example
Chemical Agents, including tear gas containing 1%
or less of CS or CN, except containers net wt <20grm
Electrolytic cells for fluorine production with a
production capacity >250 g of fluorine per hour
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” for process control that is specifically
configured to control or initiate “production” of
chemicals controlled by 1C350
Technical data for the development of
production of any of the above items
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What is 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, readonly memories.
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What is NOT Controlled:
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
 Through unlimited distribution at a conference,
meeting, seminar, trade show, or exhibition (provided
no previous government or industry restrictions on
distribution applied)
 Arise during or result from fundamental research,
where no restrictions on publication or access accepted
 Non-technical contract or business documents
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What is NOT Fundamental Research?
 Given this definition of fundamental research, university
research will not be deemed to 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.
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Elements of a Campus
Export Compliance Plan
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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 License Approval 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/licensing personnel; EH&S; others?
 Train MSO’s and Departmental Staff re: shipment of ‘things’
 Identify projects with ‘deliverables’ to foreign countries at the
proposal/award stage
 Outreach to faculty in key departments
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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
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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
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Technical Data Exchange:
Faculty “Do Not 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
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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 774, 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 774, 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)
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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
 restrictions on dissemination of the ‘direct product’ of the
software
 ask the software provider to identify the ECNN number 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
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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
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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, 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 or Sudan
 Reference 15 CFR Part 740.9(a)(2)(i) for TMP “Tools of
Trade” License Exception
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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 VCResearch 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.
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Faculty: Getting the Message to
Those that Need It?
 Deans, Departments, ORU: Who needs to know?
 Faculty Committees?
 Other?
 Written Materials; Web Site; What?
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