Export Control Regulations
Overview for Research
Administration Personnel
Why Is Compliance
Important?
 Possibility of Substantial Fines
and Imprisonment for Violators
 Civil & Criminal Penalties, for the
Individual and the Institution
 Loss of Export Privileges
 Limiting participation of foreign
nationals in University research is
not realistic and contrary to policy
 Bad Publicity
P:\bfn\bfnbvy\powerpt\ott export.ppt
Export Controls in a Nutshell
P:\bfn\bfnbvy\powerpt\ott export.ppt
Three U.S. Export Licensing
Programs
U.S. Department of State (Office of Defense
Trade Controls) controls defense articles,
defense services, and related technical data,
including most space-related articles.
U.S. Department of Commerce (Bureau of
Industry and Security) controls “dual-use”
items – goods and technology with both
civilian and military/strategic uses.
U.S. Department of the Treasury oversees
U.S. trade embargoes (Office of Foreign
Assets Control) and enforces all three
programs at U.S. borders through U.S.
Customs Service.
Cuba
P:\bfn\bfnbvy\powerpt\ott export.ppt
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
P:\bfn\bfnbvy\powerpt\ott export.ppt
What Is an Export?
ITAR 120.17, EAR 734.2(b)
 An actual shipment or transmission of items subject to the
EAR or ITAR out of the United States
 Disclosing (including oral or visual disclosure) “technical
data” or “technology” (including software source code) to
a “foreign person,” whether in the United States (“deemed
export”) or abroad
 Performing technical assistance, training, or other
“defense services” for, or on behalf of, a “foreign person,”
(including foreign corporations) whether in the United
States (“deemed export”) or abroad
 Reexporting from foreign countries U.S.-origin goods or
technical data, goods incorporating U.S. components, or
goods manufactured from U.S. technology or reexporting
U.S.-origin “technical data” or software
P:\bfn\bfnbvy\powerpt\ott export.ppt
EXAMPLES OF EXPORTS
 Physical Shipments or Hand Carry
 Release of technical data or
software in a foreign country
 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
 Demonstrations, Meetings, and
Training
P:\bfn\bfnbvy\powerpt\ott export.ppt
U.S. and Foreign Persons
ITAR 120.15 & 16, EAR 772.1
 “U.S. Person” means:
 a “Lawful Permanent Resident (8 USC 1101 (a)(20))
– U.S. Citizen or national
– Legal immigrant with a “green card”
 a “Protected Individual” under the INA (8 USC 1324(b)(3))
– designated an asylee or refugee
– a temporary resident under amnesty provisions
– but does not include Protected Individuals who:
o fail to apply for citizenship within 6 months of becoming eligible
o have not been naturalized within 2 years after applying
 any entity incorporated to do business in the United States
 “Foreign Person” means everyone else
 includes foreign businesses not incorporated in the U.S.
 EAR does not use the term “Foreign Person,” instead refers
to “foreign national,” exempting Protected Individuals (See
EAR 734.2(b)(ii))
P:\bfn\bfnbvy\powerpt\ott export.ppt
U.S. Munitions List (USML)












I - Firearms
II - Artillery Projectors
III - Ammunition
*IV - Launch Vehicles, etc...
*V - Explosives, Propellants,
Incendiary Agents and Their
Constituents
VI - Vessels of War and Special
Naval Equipment
VII - Tanks and Military Vehicles
VIII - Aircraft and Associated
Equipment
IX - Military Training Equipment
X - Protective Personnel
Equipment
XI - Military Electronics
*XII - Fire Control, Range Finder,
Optical and Guidance and
Control Equipment
 *XIII - Auxiliary Military
Equipment
 XIV - Toxicological Agents and
Equipment and Radiological
Equipment
 *XV - Spacecraft Systems and
Associated Equipment
 XVI - Nuclear Weapons Design
and Related Equipment
 XVII - Classified Articles, Technical
Data and Defense Services Not
Otherwise Enumerated
 XVIII - Reserved
 XIX - Reserved
 XX - Submersible Vessels,
Oceanographic and Associated
Equipment
 XXI - Miscellaneous Articles
P:\bfn\bfnbvy\powerpt\ott export.ppt
Commerce Control List (CCL)
 Category 0 - Nuclear
Materials, Facilities and
Equipment and Misc.
 Category 1 - Materials,
Chemicals,
Microorganisms and
Toxins
 Category 2 - Materials
Processing
 Category 3 - Electronics
 Category 4 - Computers
 Category 5 Telecommunications and
Information Security
 Category 6 - Lasers and
Sensors
 Category 7 - Navigation
and Avionics
 Category 8 - Marine
 Category 9 - Propulsion
Systems, Space Vehicles
and Related Equipment
P:\bfn\bfnbvy\powerpt\ott export.ppt
Examples of Items Covered by
Category 3 - Electronics
Category
Example
Systems, Equip, Mass Spectrometers & Oscilloscopes
& 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
P:\bfn\bfnbvy\powerpt\ott export.ppt
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 an invention secrecy
order
 Software directly related to defense articles
P:\bfn\bfnbvy\powerpt\ott export.ppt
Technical Data & Technology
ITAR 120.10, EAR 772.1
 EAR 772.1 defines “technology” as
 Specific information necessary for the “development,”
“production,” or “use” of a product. The information
takes the form of “technical data” or “technical
assistance.”
 Technical assistance may take forms such as
instruction, skills training, working knowledge, and
consulting services and may involve transfer of
“technical data.”
 “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.
P:\bfn\bfnbvy\powerpt\ott export.ppt
Technical Data & Technology
ITAR 120.10, EAR 772.1
 What is not “technical data” or “technology”
 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
P:\bfn\bfnbvy\powerpt\ott export.ppt
National Security Decision Directive
NSDD-189
 In September 1985, the Reagan Administration issued
NSDD-189 in which it established the following policies:
 To the maximum extent possible, the products of
fundamental research should remain unrestricted.
 Where the national security requires control, the
mechanism for control of information generated
during Federally-funded fundamental research in
science, technology, and engineering at colleges,
universities, and laboratories is classification.
 No restriction may be placed upon the conduct or
reporting of Federally-funded fundamental research
that has not received national security classification,
except as provided in applicable U.S. statutes.
 President Bush’s National Security Advisor, Condoleezza
Rice, reaffirmed NSDD-189 in November 2001.
P:\bfn\bfnbvy\powerpt\ott export.ppt
National Security Decision Directive
NSDD-189
 NSDD-189 defined “fundamental research” as
 Basic and applied research in science and
engineering, the results of which ordinarily
are published and shared broadly within the
scientific community.
 It is distinguished from research which
results in information which is restricted for
proprietary reasons or pursuant to specific
U.S. Government access and dissemination
controls.
P:\bfn\bfnbvy\powerpt\ott export.ppt
National Security Decision Directive
NSDD-189
 NSDD-189’s definition of “fundamental
research” is reflected throughout the
ITAR and EAR in terms of what
research is subject to export controls.
 Avoiding restrictions on access and
dissemination of research findings in
contracts with the U.S. Government and
industry is a key strategy for minimizing
export control issues in university and
research laboratory settings.
P:\bfn\bfnbvy\powerpt\ott export.ppt
Key EAR Exceptions
 EAR 734.3(b) – “What is not subject to the EAR?”
 Publicly available technology and software, except
software controlled for EI (encryption) under ECCN
5D002 that
– Are already published or will be published – EAR
734.7
– Arise during, or result from, fundamental research –
EAR 734.8
– Are educational – EAR 734.9
– Are included in certain patent applications – EAR
734.10
 See Supplement No. 1 to Part 734 for extensive explanatory
questions and answer regarding what is not subject to the
EAR in the context of university and research laboratory
activities.
P:\bfn\bfnbvy\powerpt\ott export.ppt
Key EAR Exceptions
 EAR 734.11 – “What is government research
covered by contract controls?
 If research is funded by the U.S. Government,
and specific national security controls are
agreed on to protect information resulting
from the research, EAR 734.3(b)(3) will not
apply.
P:\bfn\bfnbvy\powerpt\ott export.ppt
Key EAR Exceptions
 Examples of “specific national security controls” include:
 Requirements for prepublication review by the
Government, with right to withhold permission for
publication
 Restrictions on prepublication dissemination of
information to non-U.S. citizens or other categories of
persons
 Restrictions on participation of non-U.S. citizens or
other categories of persons in the research.
 BUT: A general reference to one or more export control
laws or regulations or a general reminder that the
Government retains the right to classify is not a “specific
national security control.” (EAR 734.11)
P:\bfn\bfnbvy\powerpt\ott export.ppt
Key ITAR Exemptions
 ITAR 125.4(b)(10) – Exempts from licensing requirements
disclosures of unclassified technical data in the U.S. by
U.S. institutions of higher learning to foreign persons
who are their bona fide and full time regular employees.
 Employee’s permanent abode throughout the period
of employment must be in the U.S.
 Employee must not be a national of a country to
which exports are prohibited pursuant to ITAR 126.1
(e.g., Belarus, Cuba, Iran, Libya, North Korea, Syria,
Vietnam, Burma, China, Haiti, Liberia, Somalia, and
Sudan—list as of 7/2003)
 The institution informs the individual in writing that
the technical data may not be transferred to other
foreign persons without the prior written approval of
the Office of Defense Trade Controls
P:\bfn\bfnbvy\powerpt\ott export.ppt
Take Home Messages
P:\bfn\bfnbvy\powerpt\ott export.ppt
Do’s and Don’ts
 Do NOT Ship Any Item Outside the U.S. without first
checking the ITAR and EAR Lists to determine if the item is
controlled (This includes Outgoing MTA’s, Software Licenses,
and any Agreement Deliverables)
 Secure License Approval (through UCOP) or verify license
exception PRIOR to Shipment for all controlled items
 Do NOT Accept Publication or Access Controls in research
agreements (regardless of whether federal, state, or private)
 Do NOT create special training or access programs limited to
select foreign companies or foreign nationals without first
securing a government-approved Technical Assistance
Agreement
P:\bfn\bfnbvy\powerpt\ott export.ppt
Do’s and Don’ts
 Screen all proposed research contracts from government and
industry for access and dissemination restrictions that might
jeopardize the project’s qualification as “fundamental research.”
 Do NOT Accept clauses, such as:
 DOD Clause 252.204-7000, Disclosure of Information
 FAR Clause 52.227-17, Rights in Data, Special Works
 Airforce Clause 5352.227-9000, Export Controlled Data
Restrictions
 Army Clause 52-04-4401, Foreign Nationals Performing Under
Contract (Feb 2002)
 Questionnaire for Public Trust Positions (SF89P) or National
Agency Check/Name Check Request
 DD2345, Militarily Critical Technical Data Agreement
 Watch out for flow down language!
P:\bfn\bfnbvy\powerpt\ott export.ppt
Do’s and Don’ts
 Review any Confidentiality/Non-Disclosure Agreements to
insure that UC is not assuming the burden of restricting
dissemination based on citizenship status or securing license
 Require Commercial Contractor to Secure Any Required
Export License Prior to Transfer of Proprietary Data to UC
(See EAR 734.8(b)(4) and EAR Supplement 1, Section D,
Question 2)
 Can agree that the individual to whom proprietary data
transferred will not disclose it to anyone (including other UC
personnel)
 Can agree that UC will comply with Export Regulations; can
not agree that data generated by UC in the course of the
research is export controlled
P:\bfn\bfnbvy\powerpt\ott export.ppt
Do’s and Don’ts
 Whenever possible, make University created software,
databases, and other technical data “publicly available”
 Publication in periodicals, books, print, electronic, or other
media available to a community of persons interested in the
subject matter either free or at a price that does not exceed the
cost of reproduction and distribution (See EAR Supplement 1,
Questions A(1) - A(6)
 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
 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.
P:\bfn\bfnbvy\powerpt\ott export.ppt
Recommendations
 Allow sufficient time for governmental authorities to
process your application – some ITAR applications take
literally months to process – again, Plan ahead!
 Consider screening faculty, students, and vendors against
“denied party” lists of State, Commerce, and Treasury
 Additional Resources:
 Auburn University Technology Control Plan at
http://web6.duc.auburn.edu/research/vpr/security/tcp.pdf
 Berkeley Law Export Control Manual at
http://www.lbl.gov/ehs/security/01export/manual.html
 See University of Maryland procedures at
http://www.umresearch.umd.edu/ORAA/export_contr
ol/
P:\bfn\bfnbvy\powerpt\ott export.ppt
Is the Item “Export Controlled?”
 EAR List at: http://www.access.gpo.gov/bis/ear/ear_data.html
 ITAR List at: http://www.pmdtc.org/docs/ITAR/22cfr121_Part_121.pdf
 For EAR Items: 1)Check the “reason for control”; 2)Check country chart;
3)Determine if license required in the column for the country where item to
be shipped
 For EAR Item, if no “check” in control column for country, then ship under
NLR (no license required); If item being shipped is not on Commodity
Control List, then ship EAR99 (exempt)
 For ITAR Item, if on list, contact UCOP; license will be required because
there is no EAR equivalent “country chart”
P:\bfn\bfnbvy\powerpt\ott export.ppt
Questions?
P:\bfn\bfnbvy\powerpt\ott export.ppt