EXPORT COMPLIANCE
BASIC PRINCIPLES
RF Symposium March 24, 2015
Export Controls
 Export Controls are U.S. laws that regulate the distribution
of items, technology, services, and information, including
items and technology used in research, for reasons of
foreign policy and national security.
 Export Control Laws apply to all U.S. persons where ever
located.
Regulations
 Department of State (DoS), International Traffic in Arms
Regulations (ITAR), U.S. Munitions List (USML) controls
defense articles, defense services and technical data.
 Department of Commerce (DoC), Export Administration
Regulations (EAR), Commodity Control List (CCL), controls
commercial and dual use commodities, technology and
software.
Regulations continued
 Department of Treasury, Office of Foreign Asset Controls
(OFAC), sanction and embargo programs.
 Other federal agencies have export control authority,
Nuclear Regulatory Commission, Department of Energy,
Center for Disease Control, Food and Drug Administration,
Drug Enforcement Agency.
Examples
 Items: Night vision goggles, biologics and viruses, stun
guns, GPS, high speed computers, lasers, cameras,
amplifiers, chemicals, underwater equipment.
 Technical Data/Technology: blueprints, plans, diagrams,
models, formulae, tables, engineering designs, manuals
and instructions written or recorded.
Examples continued
 Technical Assistance: instruction, skills training, working
knowledge, consulting services.
 Defense Services under the ITAR.
 Software: Information security equipment software,
information security software, information technology
support software, CAD software for semiconductors and
integrated circuits, acoustic beam forming software.
EAR99
 Commercial items:
 Not specifically designated on the CCL.
 Not subject to the jurisdiction of another federal agency
(military items and nuclear items).
 Not otherwise excluded – not publicly available.
 EAR99 items can be exported to most locations without a
license. Need to review for embargoes, sanctions,
restricted party status, and end-user intent.
Ways to Export
 Export: actual shipment or transmission of item out of the
U.S.
 Deemed Export: release of an item(usually technology or
software) to a foreign national within the U.S. Can be
through visual inspection, oral exchange, electronic/digital
exchange or by practice/application (for example training).
 Re-Export and Deemed Re-export
Foreign National/Person
 The federal definition of a foreign national is a person who
•
•
•
•
is NOT:
Granted permanent U.S. residence, Green Card.
Granted U.S. citizenship.
Granted status as a protected person (political refugees,
political asylum holders).
Includes foreign corporations, businesses, associations,
foreign governments, international organizations.
Exemptions/Exclusions
 Exempt from the ITAR is Information in the Public Domain.
 Excluded from the EAR is Information that is Publicly
Available.
 No General Exemption/Exclusion from OFAC, embargoes
and sanctions are country specific.
 General Licenses but they are program specific.
Public Domain/Publicly Available
 Fundamental Research (FRE)
 Educational Information (EIE)
 Open Conferences, Seminars
 Some Patent Applications
Fundamental Research
 Basic and applied research in science and engineering
where the resulting information is ordinarily published and
shared broadly within the scientific community, as
distinguished from research the results of which are
restricted for proprietary or specific U.S. government
access and dissemination controls.
 ITAR – at a institution of higher education in the U.S.
What Would Void the FRE
The University or its researchers accept other restrictions on
publication of scientific or technical information resulting from
the project or activity, or
The research is funded by the U.S. government and specific
access and dissemination controls protecting information
resulting from the research are applicable.
Educational Information (EI)
 Generally speaking, allows for the teaching of commonly
taught information at universities.
 DoC: focuses on venue. Information conveyed in courses
listed in course catalogs and associated teaching labs.
 DoS: focuses on subject matter. Only covers general
science, math and engineering principles taught in
universities.
What is Outside of the EIE
The educational information exemption/exclusion does not
apply to providing additional information that is beyond the
scope of what is generally included in the catalog course.
Conference, Seminars, Workshops
 DoC: information that is released at an open conference,
meeting, seminar, trade show, or other open gathering.
 “Open” means all technically qualified members of the
public are eligible to attend and take notes.
 DoS: information released through unlimited distribution at
a conference, meeting, seminar… in the United States.
Patents
 DoC: Filed with a foreign filing option and the foreign filing
option has been approved by U.S. Patent and Trademark
Office.
 DoS: Patents available at any patent office.
Restricted Party
 Certain individuals and entities are prohibited from
receiving U.S. exports without a license.
 There are over fifty lists issued by governmental
agencies.
 Not limited to foreign entities and can include US
persons.
 Subject to change and are updated routinely.
 Designation is not based upon nationality but instead is
based upon previous behavior or action.
Restricted Party continued
 Who can be a restricted party:
Anyone: Vendors, Customers, Visitors, Students, Volunteers,
Collaborators, Consultants, Company Reps, Employees.
 eCustoms Visual Compliance Screening Software to
conduct Restricted Party Screening (RPS).
Compliance Review
 Item
What are we exporting? Which regulations apply.
 Place
Where are we exporting to?
Military items cannot be exported without a license. Dual use
items are country based controls.
Special rules for embargoed/sanctioned countries.
Compliance Review continued
 Person/Entity
Who is the recipient/end-user?
Conduct RPS.
 End-Use
Why are we exporting?
The transaction should make business sense.
The end-user should have experience in the area.
Areas for Review
 Sponsored Programs Activity
 Third Party Proprietary Data
 International Travel
 International Collaborations
 Lab Activity that is not Fundamental Research
Areas for Review continued
 Employees
 International Visitors
 Purchasing
 Accounts Payable
 Shipping and Receiving
Sponsored Programs Activity
 Maintain the FRE.
 Conduct a RPS.
 Request that sponsors identify any confidential information
that is export controlled prior to releasing it to the project
director .
 Identify any ITAR controlled equipment/technical data that
may be used to complete the project.
 Identify any international collaborations/consultants.
Third Party Proprietary Data
 Third party proprietary data even if received as part of
completing a fundamental research project is subject to the
regulations.
 Non-Disclosure Agreement (NDA) or terms of the
Sponsored Research Agreement (SRA) should require
that the disclosing party identify export controlled
information.
 Safeguard received export controlled information,
secure IT systems.
International Travel
 Conduct a RPS.
 Review items/technology being hand-carried or being
shipped.
 No items/technical data subject to the ITAR can be
exported without a license.
 Temporary Export TMP – Tools of the Trade for some
items/technical data.
 All reviews and license exceptions should be
documented.
International Collaborations
 Consultants, Collaborators, Independent Contractors,
Subcontractors, Sponsors, Memorandums of
Understanding, Academic Exchange Programs.
 Conduct a RPS.
 Review items/information to be exchanged.
• Are we shipping samples, software, prototypes.
Lab Activity that is not Fundamental
Research
 IFR and Service and Facility Centers – these are campus
recharge centers that provide services both to the campus
and to outside entities.
 Need to consider:
 Are they receiving export controlled
items/technology/technical data?
 Do they have controlled equipment/technology/technical
data in the facility?
Employees
 Conduct a RPS.
 If foreign national:
 Determine if a license is required for them to conduct
their job responsibilities.
• Examples laboratory managers, IT functions, building
managers.
 I129 Attestation for H1 and O1 visas.
 Determine if any affiliations are with restricted entities.
International Visitors
 Conduct a RPS on the person and their home institution.
 Employees are considered agents of an entity, so if a
visitor’s home institution is a Restricted Party, then the
restrictions are also applied to the visitor.
 Verify that the visitor’s background fits the purpose of their
visit.
 Determine if a license is needed for them to participate in
the proposed activities.
Purchasing and Accounts Payable
 Purchasing
 Conduct a RPS.
 Request the export classification from the vendor.
 Alert campus official of controlled items being ordered.
 Accounts Payable
 Conduct a RPS.
 Review for OFAC compliance.
Shipping and Receiving
 Shipping
 Conduct a RPS.
 Material Transfer Agreement.
 Determine if the shipment requires no license, a license,
or has an applicable license exception.
 Receiving
 Determine if the item is controlled.
 Contact campus official to implement security controls.
Resources
 Know Your Customer Guidance, DoC, Bureau of Industry and
Security
http://www.bis.doc.gov/index.php/compliance-a-training/exportmanagement-a-compliance/freight-forwarder-guidance/23-compliancea-training/47-know-your-customer-guidance
 Core Elements of an Effective Export Management and Compliance
Program, DoC, Bureau of Industry and Security
http://www.bis.doc.gov/index.php/compliance-a-training/exportmanagement-a-compliance/elements-of-an-effective-emcp
Resources
International Traffic in Arms Regulations
http://pmddtc.state.gov/regulations_laws/itar_official.html
Export Administration Regulations
http://www.bis.doc.gov/index.php/regulations/export-administrationregulations-ear
Office of Foreign Assets – Sanctions Programs
http://www.treasury.gov/resourcecenter/sanctions/Programs/Pages/Programs.aspx
Resources
Export.gov Frequently Asked Questions
http://www.export.gov/faq/index.asp
Federal Bureau of Investigations
http://www.fbi.gov/about-us/investigate/counterintelligence
Council on Governmental Relations
http://www.cogr.edu/Pubs_ExportControls.cfm
Association of American Universities
http://www.aau.edu/policy/article.aspx?id=4694
International Travel Information
http://travel.state.gov/travel/cis_pa_tw/cis_pa_tw_1168.html