what to do when export controls apply

What to Do WhenWhat to Do WhenExport Controls Export Controls

ApplyApplyNCURA Annual Conference NCURA Annual Conference

Senior SeminarSenior SeminarWashington, DCWashington, DC

November 4, 2007November 4, 2007

Jilda GartonJilda GartonAssociate Vice Provost for ResearchAssociate Vice Provost for ResearchGeorgia Institute of Technology Georgia Institute of Technology (404) 894-4819(404) [email protected]@gtrc.gatech.edu

Steve EisnerSteve EisnerExport Control OfficerExport Control OfficerStanford University Stanford University (650) 734-7270(650) [email protected]@stanford.edu


ApplyApplyTab 1Tab 1

Review of Export Controls Review of Export Controls BasicsBasics

Why Do We Have Export Why Do We Have Export Control Regulations?Control Regulations?

Objective: To protect U.S. national Objective: To protect U.S. national security and foreign policy interests by security and foreign policy interests by --

Denying our adversaries the means to advance Denying our adversaries the means to advance their military potentialtheir military potential

Implementing foreign policy objectivesImplementing foreign policy objectives Preventing terrorismPreventing terrorism Inhibiting the proliferation of Weapons of Mass Inhibiting the proliferation of Weapons of Mass

Destruction (nuclear, biological, chemical)Destruction (nuclear, biological, chemical) Fulfilling Multilateral Obligations (i.e. UN Fulfilling Multilateral Obligations (i.e. UN

Sanctions, Trade Agreements)Sanctions, Trade Agreements)

What Are Export Control What Are Export Control Regulations?Regulations?

Export Control Regulations prohibit the Export Control Regulations prohibit the unauthorized “export” of certain unauthorized “export” of certain controlled controlled ITEMSITEMS, , INFORMATION OR INFORMATION OR SOFTWARESOFTWARE to foreign persons or entities in to foreign persons or entities in the U.S. and abroadthe U.S. and abroad

ITEMS= Tangible things, equipment or hardwareITEMS= Tangible things, equipment or hardware INFORMATION = “Technical Data” such as models, INFORMATION = “Technical Data” such as models,

formulae, engineering designs or “Technical formulae, engineering designs or “Technical Assistance” such as training or instructionAssistance” such as training or instruction

SOFTWARE = Computer programs or microprograms SOFTWARE = Computer programs or microprograms in either “Source Code” (programming statements) or in either “Source Code” (programming statements) or “Object Code” (machine-readable instructions)“Object Code” (machine-readable instructions)

What is an “Export”?What is an “Export”?

• Shipment of controlled item or good outside of Shipment of controlled item or good outside of the USthe US

• Transmission (electronic or digital) of Transmission (electronic or digital) of controlled item or information related to controlled item or information related to controlled item outside of the UScontrolled item outside of the US

• Use or application of controlled technology on Use or application of controlled technology on behalf of, or for the benefit of, any foreign behalf of, or for the benefit of, any foreign person or entity, either in U.S. or abroadperson or entity, either in U.S. or abroad

• Release or disclosure (including verbal or Release or disclosure (including verbal or visual) of any controlled technology, software visual) of any controlled technology, software or technical data, either in U.S. (“deemed or technical data, either in U.S. (“deemed export”) or abroadexport”) or abroad

Deemed ExportsDeemed Exports

• The transfer of technology to a foreign person in The transfer of technology to a foreign person in the U.S. is “deemed” to be an export to that the U.S. is “deemed” to be an export to that individual’s countryindividual’s country

• The information can take the form of data or The information can take the form of data or technical assistancetechnical assistance

• Release of certain controlled software source Release of certain controlled software source code and technology within the U.S. may be a code and technology within the U.S. may be a “deemed export”“deemed export”

• Licensing issues may arise when controlled Licensing issues may arise when controlled technology is disclosed to foreign students, technology is disclosed to foreign students, foreign national staff, symposium attendees from foreign national staff, symposium attendees from other countries, visiting scholars, those touring other countries, visiting scholars, those touring laboratories, etc. laboratories, etc.

Who is a “Foreign Who is a “Foreign Person”?Person”?

A “foreign person” is anyone who is not a “U.S. A “foreign person” is anyone who is not a “U.S. person”person”

A “U.S. person” is either:A “U.S. person” is either:

A U.S. citizen, lawful permanent resident alien (“Green A U.S. citizen, lawful permanent resident alien (“Green Card Holder”), refugee, protected political asylee or Card Holder”), refugee, protected political asylee or someone granted temporary residency under amnesty or someone granted temporary residency under amnesty or Special Agricultural Worker provisions; orSpecial Agricultural Worker provisions; or

Any juridical person (i.e. organizations under the laws of Any juridical person (i.e. organizations under the laws of the United States or any jurisdiction within the U.S., the United States or any jurisdiction within the U.S., including foreign branches)including foreign branches)

Who is a Foreign Person?Who is a Foreign Person?(Cont.)(Cont.)

Examples of foreign persons: Examples of foreign persons:

Individuals in the U.S. in Non-Immigrant Status (H-1B, Individuals in the U.S. in Non-Immigrant Status (H-1B, F-1, J-1)F-1, J-1)

Any branch of a foreign governmentAny branch of a foreign government

Any foreign corporation or group that is not Any foreign corporation or group that is not incorporated or organized to do business in the U.S.incorporated or organized to do business in the U.S.

The RegsThe Regs1.1. State Department - International Traffic in State Department - International Traffic in

Arms Regulations (Arms Regulations (ITAR) ITAR) covers military and space-related technologiescovers military and space-related technologies administered by the Directorate of Defense Trade Controls administered by the Directorate of Defense Trade Controls

(DDTC)(DDTC)

2.2. Commerce Department - Export Commerce Department - Export Administration Regulations (Administration Regulations (EAR)EAR)

covers commercial and “dual use” technologiescovers commercial and “dual use” technologies administered by the Bureau of Industry and Security (BIS)administered by the Bureau of Industry and Security (BIS)

3.3. Treasury Department – Various Economic Treasury Department – Various Economic and Trade Sanctions Regulations and Trade Sanctions Regulations

regulates transfer of assets or services to those countriesregulates transfer of assets or services to those countries may prohibit travel/other activities with sanctioned may prohibit travel/other activities with sanctioned

countries & persons even when exclusions to EAR/ITAR countries & persons even when exclusions to EAR/ITAR applyapply

administered by the Office of Foreign Assets Control administered by the Office of Foreign Assets Control (OFAC)(OFAC)



Review of Exclusions and Review of Exclusions and ExemptionsExemptions

Most research and education Most research and education at U.S. universities is subject at U.S. universities is subject

to one or more exclusions from to one or more exclusions from export controls.export controls.

The most common exclusions from The most common exclusions from controls/exemption for academic research controls/exemption for academic research institutionsinstitutions Public Domain/Publicly Available Information Public Domain/Publicly Available Information

Exclusion (ITAR/EAR)Exclusion (ITAR/EAR) Educational Information Exclusion (ITAR/EAR)Educational Information Exclusion (ITAR/EAR) Fundamental Research Exclusion (ITAR/EAR)Fundamental Research Exclusion (ITAR/EAR)

Public Domain Exclusion Public Domain Exclusion (ITAR)(ITAR)

USML-listed information and software that USML-listed information and software that is generally accessible and available to the is generally accessible and available to the public through/at one or more of the public through/at one or more of the following: following:

Fundamental researchFundamental research in science and engineering performed in science and engineering performed at an accredited institution of higher learning at an accredited institution of higher learning in the USin the US; ;

Libraries open to the public; Libraries open to the public; Sales at newsstands or bookstores; Sales at newsstands or bookstores; Subscriptions available without restriction; Subscriptions available without restriction; Published patents available at any patent office; Published patents available at any patent office; Unlimited distribution at conferences, meetings, seminars, Unlimited distribution at conferences, meetings, seminars,

trade shows or exhibitions trade shows or exhibitions in the USin the US that are generally that are generally available to the public; available to the public; and/orand/or

Websites that are accessible to all members of the public, Websites that are accessible to all members of the public, free of charge, and where the university does not have free of charge, and where the university does not have knowledge or control over who visits the site or downloads knowledge or control over who visits the site or downloads the information or softwarethe information or software

Publicly Available Exclusion Publicly Available Exclusion (EAR)(EAR)

CCL-listed information and software that is CCL-listed information and software that is generally accessible to the interested public in generally accessible to the interested public in any form through/at one or more of the any form through/at one or more of the following:following: Fundamental researchFundamental research in science and engineering per Part 734.8 – in science and engineering per Part 734.8 –

may have been generated outside of the US; may have been generated outside of the US; Publication in periodicals, books, print, electronic, or any other media Publication in periodicals, books, print, electronic, or any other media

available for general distribution either free or at a cost not exceeding available for general distribution either free or at a cost not exceeding the cost of reproduction and distribution (allows for a reasonable the cost of reproduction and distribution (allows for a reasonable profit); profit);

Libraries open to the public or from university libraries; Libraries open to the public or from university libraries; Through subscriptions which are available without restriction either Through subscriptions which are available without restriction either

free or at a cost not exceeding the cost of reproduction and free or at a cost not exceeding the cost of reproduction and distribution (allows for a reasonable profit); distribution (allows for a reasonable profit);

Published patents and open (published) patent applications available Published patents and open (published) patent applications available at any patent office; at any patent office; and/orand/or

Unlimited distribution at conferences, meetings, seminars, trade Unlimited distribution at conferences, meetings, seminars, trade shows or exhibitions shows or exhibitions in the US or abroadin the US or abroad that are generally that are generally accessible to the public for a fee reasonably related to the cost, and accessible to the public for a fee reasonably related to the cost, and where attendees may take notes. where attendees may take notes.

Publicly Available Exclusion Publicly Available Exclusion

(EAR / Software)(EAR / Software) CCL-listed software becomes publicly CCL-listed software becomes publicly available through/at one or both of the available through/at one or both of the following:following:

General distribution either free or at a cost not General distribution either free or at a cost not exceeding the cost of reproduction and distribution exceeding the cost of reproduction and distribution (with allowance for a reasonable profit on the (with allowance for a reasonable profit on the reproduction and distribution of such materials); reproduction and distribution of such materials); and/orand/or

Websites which are accessible to all members of Websites which are accessible to all members of the public, free of charge, and where the institution the public, free of charge, and where the institution does not have knowledge or control of who visits does not have knowledge or control of who visits the site or downloads the information or software. the site or downloads the information or software.

Educational Information Educational Information ExclusionExclusion

ITAR – Export Controls do not apply to ITAR – Export Controls do not apply to information concerning “general information concerning “general scientific, mathematical or engineering scientific, mathematical or engineering principles commonly taught in schools, principles commonly taught in schools, colleges and universities.”colleges and universities.”

EAR – Export Controls do not apply to EAR – Export Controls do not apply to “educational information” released by “educational information” released by instruction in catalog courses and instruction in catalog courses and associated teaching laboratories.associated teaching laboratories.

Fundamental Research Fundamental Research ExclusionExclusion

Covers most basic research at colleges and Covers most basic research at colleges and universities universities

Stated US government policy via NSDD 189Stated US government policy via NSDD 189 ITAR Part 120.11:ITAR Part 120.11:

““Public Domain means information which is Public Domain means information which is published and which is generally accessible to the published and which is generally accessible to the public…through fundamental research in science public…through fundamental research in science and engineering at accredited institutions of higher and engineering at accredited institutions of higher learning in the US where the resulting information learning in the US where the resulting information is ordinarily published and shared broadly in the is ordinarily published and shared broadly in the scientific community.”scientific community.”

Fundamental Research Fundamental Research Exclusion (Cont.)Exclusion (Cont.)

The fundamental research exemption will The fundamental research exemption will not apply if the university accepts any not apply if the university accepts any restrictions on the publication of resulting restrictions on the publication of resulting information, other than a brief (~ 90 day) information, other than a brief (~ 90 day) advance review by sponsors to:advance review by sponsors to: Prevent divulging propriety information Prevent divulging propriety information

provided to the investigator by the provided to the investigator by the sponsorsponsor

Insure that publication will not Insure that publication will not compromise patent rights of the compromise patent rights of the sponsorsponsor

Fundamental Research Fundamental Research Exclusion (Cont.)Exclusion (Cont.)

Fundamental Research Exclusion is Fundamental Research Exclusion is destroyed by any clause that:destroyed by any clause that: Gives the sponsor the right to approve Gives the sponsor the right to approve

publicationspublications Restricts participation of foreign nationals in Restricts participation of foreign nationals in

conduct of research by precluding access to conduct of research by precluding access to research resultsresearch results

Restriction also raises “Openness in Research” policy Restriction also raises “Openness in Research” policy issues for colleges and universitiesissues for colleges and universities

The Fundamental Research Exclusion is The Fundamental Research Exclusion is destroyed by such clauses regardless of destroyed by such clauses regardless of sponsorship (federal, private or non-profit)sponsorship (federal, private or non-profit)



Export Control DeterminationsExport Control Determinations

It’s Export Controlled If It’s Export Controlled If It’s…It’s…

• Not subject to an Export Control Exclusion ANDNot subject to an Export Control Exclusion AND• On the U.S. Munitions List On the U.S. Munitions List

(ITAR 22 CFR 121.1)(ITAR 22 CFR 121.1) Anything with a military application even if it is not on the Anything with a military application even if it is not on the

USML,USML,• On the Commerce Control List On the Commerce Control List

(EAR 15 CFR 774)(EAR 15 CFR 774)• A Defense Service (ITAR)A Defense Service (ITAR)

e.g., training on how to use defense articlese.g., training on how to use defense articles• ““Technology” (EAR) or “Technical Data” (ITAR) Technology” (EAR) or “Technical Data” (ITAR)

Information beyond basic and general marketing Information beyond basic and general marketing materials on use, development or production of controlled materials on use, development or production of controlled items or materials items or materials - see Part 772, and 774 Supp. 1 and 2 of the EAR; Part - see Part 772, and 774 Supp. 1 and 2 of the EAR; Part 120.10 120.10 of the ITARof the ITAR

EAR Controlled EAR Controlled TechnologyTechnology

The EAR defines “technology” as: The EAR defines “technology” as: “ “Specific information necessary for the development, Specific information necessary for the development,

production or use of equipment or software. Technology production or use of equipment or software. Technology includes information subject to the EAR released in the form includes information subject to the EAR released in the form of technical assistance or technical data.”of technical assistance or technical data.”

Key concept for researchers: The use of controlled Key concept for researchers: The use of controlled equipment of software does not in and of itself constitute equipment of software does not in and of itself constitute a licensable export unless specific controlled information a licensable export unless specific controlled information required for its use is transferred during release.required for its use is transferred during release.

EAR99EAR99 a “catch-all” category for a “catch-all” category for items/software/info subject to the EAR but not items/software/info subject to the EAR but not listed on the CCLlisted on the CCL

What is “controlled”? What is “controlled”? (From Commerce Control List)(From Commerce Control List)

Commerce Control List Categories

0 = Nuclear materials, facilities and equipment (and miscellaneous items)1 = Materials, Chemicals, Microorganisms and

Toxins2 = Materials Processing3 = Electronics4 = Computers5 = Telecommunications and Information Security6 = Sensors and Lasers7 = Navigation and Avionics8 = Marine9 = Propulsion Systems, Space Vehicles, and

Related Equipment

Five Product Groups

A. Systems, Equipment and ComponentsB. Test, Inspection and Production EquipmentC. MaterialD. SoftwareE. Technology

What is “controlled”? What is “controlled”? (From U.S. Munitions List)(From U.S. Munitions List)

An article or service that:An article or service that:

a.a. Is specifically designed, developed, configured, adapted, or Is specifically designed, developed, configured, adapted, or modified for a military application, andmodified for a military application, and

i.i. Does not have predominant civilian applications, andDoes not have predominant civilian applications, andii.ii. Does not have performance equivalent (defined by form, fit Does not have performance equivalent (defined by form, fit

and function) to those of an article or service used for and function) to those of an article or service used for civilian applications, orcivilian applications, or

b.b. Is specifically designed, developed, configured, adapted, or Is specifically designed, developed, configured, adapted, or modified for a military application, and has significant modified for a military application, and has significant military or intelligence applicability such that control…is military or intelligence applicability such that control…is necessary.necessary.

The intended use of the article or service after its export (The intended use of the article or service after its export (i.e. i.e. for for aa

military or civilian purpose) is not relevant in determining military or civilian purpose) is not relevant in determining whether thewhether the

article or service is subject to control ….article or service is subject to control ….

What is “controlled”?What is “controlled”?(by Office of Foreign Assets (by Office of Foreign Assets

Control)Control)OFAC Sanctions and ControlsOFAC Sanctions and Controls

Regulates the transfer of items/services of Regulates the transfer of items/services of value to sanctioned nationsvalue to sanctioned nations

Imposes Trade Sanctions, and Trade and Imposes Trade Sanctions, and Trade and Travel Embargoes Aimed at Controlling Travel Embargoes Aimed at Controlling Terrorism, Drug Trafficking and Other Illicit Terrorism, Drug Trafficking and Other Illicit ActivitiesActivities

Prohibit Payments/Providing Value to Prohibit Payments/Providing Value to Nationals of Sanctioned Countries and Nationals of Sanctioned Countries and Some Specified Entities/IndividualsSome Specified Entities/Individuals

May Prohibit Travel and Other Activities May Prohibit Travel and Other Activities with Sanctioned Countries and Individuals with Sanctioned Countries and Individuals Even When Exclusions to EAR/ITAR ApplyEven When Exclusions to EAR/ITAR Apply

What Formal Determination What Formal Determination Processes are Available?Processes are Available?

Commodity Classification Request (BIS)Commodity Classification Request (BIS) EAR Part 748.3EAR Part 748.3

Request for Advisory Opinion (BIS)Request for Advisory Opinion (BIS) EAR Part 748.3EAR Part 748.3

Commodity Jurisdiction Request (DDTC)Commodity Jurisdiction Request (DDTC) ITAR 120.4ITAR 120.4

USML Advisory Opinion (DDTC)USML Advisory Opinion (DDTC) ITAR 126.9ITAR 126.9

Use of Outside Counsel for DeterminationUse of Outside Counsel for Determination

When are export licenses When are export licenses required?required?

Under (ITAR) State Department jurisdiction a Under (ITAR) State Department jurisdiction a license is always required unless an exemption license is always required unless an exemption is in placeis in place

Under (EAR) Commerce Department a license Under (EAR) Commerce Department a license is required only when specified for a particular is required only when specified for a particular item and a particular country and if an item and a particular country and if an exception is not availableexception is not available

Under OFAC (Treasury) jurisdiction, a license Under OFAC (Treasury) jurisdiction, a license is always required with only a couple of is always required with only a couple of exceptions, such as informational materialsexceptions, such as informational materials

LicenseRequired

No License Required

OK for All but Embargoed Countries

What’s controlled and to where?

LicenseRequired

OK for 22 Countries

OK for Group B Countries

Including India and Israel

No License Required


1. Equipment, software, chemical, biological agent, or technology on the US Munitions List (ITAR) and related technical data and defense services

2. Equipment, software, chemical, biological agent or technology designed or modified for military use, use in outer space

3. There is reason to know it will be used for or in weapons of mass destruction

4. Chemicals, biological agents or toxins on the Commerce Control List

1. Equipment or encrypted software

2. Equipment, software or technology on the Commerce Control List

3. Information or instruction about software, technology, or equipment on the CCL

1. Most basic research results - Fundamental Research2. Not military or designed or modified for military use3. Not on Commerce Control List

What’s controlled and to where?

LicenseRequired

OK for 22 Countries



No License Required


“D1” Controlled: Albania,Armenia, Azerbaijan,Belarus, Cambodia, China(PRC), Georgia, Iraq,Kazakhstan, Laos, Libya,Macao, Moldova, Mongolia,Russia, Tajikistan,Turkmenistan, Ukraine,Uzbekistan, VietnamGroup B Countries: Theremaining countries in the“free world,” includes Indiaand Israel

Embargoed Terrorist Countries: Cuba, Iran, North Korea, Sudan, Syria

What’s controlled and to where?License: Foreign Persons ARE NOT eligible to receive the technology without an export license

ONLY Foreign Persons from the 22 Designated Countries are eligible to receive the technology without an export license

Foreign Persons from the “D1” Controlled Countries and Embargoed/Terrorist ARE NOT eligible to receive the technology without a license. Group B countries are eligible.

No License Required: Foreign Persons from all EXCEPT the Embargoed Terrorist Countries are eligible to receive

the technology.

Designated Countries: Australia, Austria, Belgium, Canada, Denmark, Finland, France, Germany, Greece, Ireland, Italy, Japan, Luxembourg, Netherlands, New Zealand, Norway, Portugal, Spain, Sweden, Switzerland, Turkey, United Kingdom

LicenseRequired

OK for 22 Countries



No License Required


Military Items – ITARRadiation Hardness – ITAR & EAREncryption – Outside U.S. CompaniesSiC SubstratesVoice IdentificationMass SpectrometerSome ASICsSynchrotrons

Some hardware/softwareSome system & development

softwareHigh Performance SwitchSome ASICsMasks

Compound SemiconductorsSiGe – HBTHEMTSubstrates of Si, GeResitors, DopantsCPU DesignSome ServersExternal ComputerInterconnectsDigital RF & Spread SpectrumMost Telecom TechnologySQUIDSSOI SubstratesLitho Simulation ToolsSome Operating Systems, Software, MiddlewareMMICsSome ASICsMasks

Most Basic ResearchCMOS/SOI ProcessMemoryStorage, Displays, PrintersIC CAD/CAM Design ToolsEncryption – Inside US CompaniesMost Middleware, OS & Application SoftwareSome ASICsMasks

Examples of what?

Is it Subject to a License Is it Subject to a License Exception (EAR) from export Exception (EAR) from export

controlscontrolsMost Common EAR License Exceptions Most Common EAR License Exceptions

(EAR Part 740) are:(EAR Part 740) are: License Exception TMPLicense Exception TMP

Professional “Tools of the Trade”, Repair/Testing, Professional “Tools of the Trade”, Repair/Testing, Demonstration/ExhibitionDemonstration/Exhibition

12 Month Limitation12 Month Limitation ““Effective Control” for Tools of the TradeEffective Control” for Tools of the Trade

License Exception BAG (Personal Items)License Exception BAG (Personal Items) License Exception TSU (Encryption)License Exception TSU (Encryption) License Exception LVS (Limited Value)License Exception LVS (Limited Value)

Group B OnlyGroup B Only License Exception GBS (Group B Shipment)License Exception GBS (Group B Shipment)

Is it Subject to a License Is it Subject to a License Exemption (ITAR) from export Exemption (ITAR) from export

controls?controls?Employment ExemptionEmployment Exemption: Most Common ITAR : Most Common ITAR Exemption from Licensing for Academic Exemption from Licensing for Academic Research Institutions:Research Institutions:

ITAR license not required for colleges and ITAR license not required for colleges and universities to share information in the U.S. with universities to share information in the U.S. with a foreign person if that person:a foreign person if that person:

Is a “bona fide” employee of University – full time w/full Is a “bona fide” employee of University – full time w/full benefitsbenefits

Grad students are EXCLUDED as are most Post-Docs Grad students are EXCLUDED as are most Post-Docs Not a national from an ITAR embargoed countryNot a national from an ITAR embargoed country

Belarus, Cuba, Iran, Libya, North Korea, Syria, Belarus, Cuba, Iran, Libya, North Korea, Syria, Vietnam, Burma, China, Haiti, Liberia, Somalia, Sudan, Vietnam, Burma, China, Haiti, Liberia, Somalia, Sudan, Iraq, Afghanistan, Rwanda, and D.R. CongoIraq, Afghanistan, Rwanda, and D.R. Congo

Maintains a “permanent abode” in the U.S. while employed Maintains a “permanent abode” in the U.S. while employed Will apply mostly to foreign nationals in H-1B statusWill apply mostly to foreign nationals in H-1B status Some universities exclude J-1s from exemptionSome universities exclude J-1s from exemption

Other ITAR ExemptionsOther ITAR Exemptions Category XV Satellite/Defense Category XV Satellite/Defense

Services ExemptionServices Exemption Government to GovernmentGovernment to Government Exports for U.S. Government UseExports for U.S. Government Use Certain Exports to CanadaCertain Exports to Canada Certain Training to NATO CountriesCertain Training to NATO Countries Certain made per Official DOD Certain made per Official DOD

RequestRequestThe exporter is responsible for determining that the exemption applies and for ensuring compliance. Records must be kept for 5 years

NOTE: The exporter is NOTE: The exporter is responsible for responsible for

determining that an determining that an exception or exemption exception or exemption applies and maintaining applies and maintaining documentation of that documentation of that

determination. For certain determination. For certain ITAR exemptions, notice to ITAR exemptions, notice to

DTCC is required prior DTCC is required prior to/after the export. to/after the export.

Recordkeeping is key.Recordkeeping is key.



Export Licensing ProcessesExport Licensing Processes

License Process: License Process: Documentary RequirementsDocumentary Requirements

EAREAR• 748P Form required for all exports (commodity, 748P Form required for all exports (commodity,

software, and technology including deemed software, and technology including deemed exports)exports)

• Supporting documents that may be applicable areSupporting documents that may be applicable are 748 A (Item Appendix)748 A (Item Appendix) 748 B (End-User Appendix)748 B (End-User Appendix) end-user certificateend-user certificate BIS 711 Statement of Ultimate Consignee & BIS 711 Statement of Ultimate Consignee &

PurchaserPurchaser a Letter of Explanation (Deemed Exports)a Letter of Explanation (Deemed Exports)

Description of Technology/Software, Form of ReleaseDescription of Technology/Software, Form of Release ResumeResume Information SummaryInformation Summary

Technology Control Plan (TCP).Technology Control Plan (TCP).

Trafficking in Arms?Trafficking in Arms?

The Process for ITARThe Process for ITAR• Register with Defense Trade ControlsRegister with Defense Trade Controls

• Pay fee!Pay fee!

• Develop a Export Compliance ProgramDevelop a Export Compliance Program• Includes a required Technology Control PlanIncludes a required Technology Control Plan

• Designate an Empowered OfficialDesignate an Empowered Official• See ITAR 120.25See ITAR 120.25• DDTC is requesting information on all those DDTC is requesting information on all those

with authority delegated by the institutional with authority delegated by the institutional Empowered OfficialEmpowered Official

Empowered OfficialsEmpowered Officials

Must ensure that all individuals within your Must ensure that all individuals within your company know and understand the limitations company know and understand the limitations and provisos of exemptions or licenses or and provisos of exemptions or licenses or agreements.agreements.

Is responsible for effective implementation of Is responsible for effective implementation of the university’s Export Compliance Programthe university’s Export Compliance Program

Personal liability exists for non-compliancePersonal liability exists for non-compliance If no authority to initiate a voluntary disclosure, If no authority to initiate a voluntary disclosure,

then is not a true Empowered Officialthen is not a true Empowered Official If university is not registered with DoS, then not If university is not registered with DoS, then not

a true Empowered Officiala true Empowered Official

License Process License Process

ITAR:ITAR:• If an item or material is on the USML or otherwise If an item or material is on the USML or otherwise

subject to ITAR:subject to ITAR:• An ITAR license will be required An ITAR license will be required beforebefore any export any export

or deemed export takes placeor deemed export takes place• A license will not be granted if the destination A license will not be granted if the destination

country or foreign recipient’s nationality is:country or foreign recipient’s nationality is: Afghanistan Afghanistan **, Belarus*, Ivory Coast, Cuba , Belarus*, Ivory Coast, Cuba **, Cyprus, Indonesia, , Cyprus, Indonesia,

Iran Iran **, Iraq , Iraq **, Libya , Libya **, N. Korea , N. Korea **, Syria , Syria **, Vietnam*, Burma*, , Vietnam*, Burma*, China*, Haiti*, Liberia*, Rwanda China*, Haiti*, Liberia*, Rwanda **, Somalia*, Sudan , Somalia*, Sudan **, Yemen, , Yemen, Zaire (Democratic Republic of Congo) Zaire (Democratic Republic of Congo) ** or any UN Security or any UN Security Council Arms Embargoed Country (e.g., for certain exports to Council Arms Embargoed Country (e.g., for certain exports to Rwanda) Rwanda) **

• A license may be granted otherwiseA license may be granted otherwise* US Arms Embargoed Countries

License Process: License Process: Documentary RequirementsDocumentary Requirements

ITARITAR• ITAR requires that persons who manufacture ITAR requires that persons who manufacture or or

export defense articles or provide defense export defense articles or provide defense services must register & pay feesservices must register & pay fees

• License forms used:License forms used:

DSP-5 (Permanent Export), DSP-5 (Permanent Export),

DSP-73 (Temporary Export), DSP-73 (Temporary Export),

DSP-61 (Temporary Import), DSP-61 (Temporary Import),

DSP-85 Classified Articles (Exports and DSP-85 Classified Articles (Exports and Imports)Imports)

State Department ITAR State Department ITAR ProcessProcess

• ITAR: Arrangements that require ITAR: Arrangements that require DDTC authorization but not export DDTC authorization but not export licenses are:licenses are:

Technical Assistance Agreements (TAA),Technical Assistance Agreements (TAA),

Manufacturing License Agreements Manufacturing License Agreements (MLA),(MLA),

Distribution Agreements,Distribution Agreements,

Distribution Arrangements, andDistribution Arrangements, and

Offshore Procurements.Offshore Procurements.

State Department ITAR State Department ITAR ProcessProcess

• Defense Articles:Defense Articles:

File a DSP85File a DSP85 State Department grants an export State Department grants an export

licenselicense

• Technical Assistance and Manufacturing Technical Assistance and Manufacturing Licenses:Licenses:

Negotiate a Technical Assistance Negotiate a Technical Assistance AgreementAgreement

State Department reviews & approves State Department reviews & approves itit

State Department ITAR State Department ITAR Process: Process:

Technical Assistance Technical Assistance AgreementAgreement

• Must be negotiated but NOT SIGNED Must be negotiated but NOT SIGNED with a foreign government prior to with a foreign government prior to submission of the proposal.submission of the proposal.• Export counsel should assist in the Export counsel should assist in the

preparation and ensure that required preparation and ensure that required clauses are included.clauses are included.

• It is part of the proposal and the It is part of the proposal and the Sponsored Programs file.Sponsored Programs file.

State Department ITAR ProcessState Department ITAR Process

• Unclassified Technical Data and Unclassified Technical Data and Classified Information:Classified Information:

File a DSP85File a DSP85 Get a license from the DoSGet a license from the DoS

• For classified, one must also comply For classified, one must also comply with DoD Industrial Security Manualwith DoD Industrial Security Manual

OFAC Licensing ProcessOFAC Licensing ProcessDocumentary RequirementsDocumentary Requirements

• Travel to sanctioned countryTravel to sanctioned country Request license in form of letter Request license in form of letter

describing purpose of traveling; who is describing purpose of traveling; who is traveling; period of time; interactions traveling; period of time; interactions with foreign government, if applicable; with foreign government, if applicable; equipment / resources to be exportedequipment / resources to be exported

Period of license is one year or less, Period of license is one year or less, must be renewed annuallymust be renewed annually

• Embargoed Country payment to Embargoed Country payment to individuals in the U.S.individuals in the U.S. Specific license may be required for Iran, Specific license may be required for Iran,

CubaCuba

License ProcessLicense Process

ProcedureProcedure Obtaining authorization takes time, the average Obtaining authorization takes time, the average

processing time for an export license is 45 days processing time for an export license is 45 days (Commerce), 90 days (State), and 60-90 days (OFAC)(Commerce), 90 days (State), and 60-90 days (OFAC)

Reviewing agencies have 30 days to return commentReviewing agencies have 30 days to return comment The license validity period is 2 years (Commerce), 4 The license validity period is 2 years (Commerce), 4

years (State), and 1 year (OFAC)years (State), and 1 year (OFAC) Licenses and agreements will include provisos and Licenses and agreements will include provisos and

limitationslimitations License denials may be reconsidered or escalated for License denials may be reconsidered or escalated for

interagency disputesinteragency disputes

A Compliance Program A Compliance Program is Required For Exportersis Required For Exporters

Fundamental elements of a compliance Fundamental elements of a compliance program includeprogram include

Export Compliance Management PolicyExport Compliance Management Policy Export compliance personnelExport compliance personnel Party and country screeningParty and country screening Proliferation screeningProliferation screening Empowered OfficialEmpowered Official In-house compliance In-house compliance TrainingTraining program program Record KeepingRecord Keeping Monitoring Monitoring and Internal Review and Internal Review Foreign National Technology Control PlanForeign National Technology Control Plan

Export Compliance Export Compliance ProgramProgram

Five basic tenants are included in the Five basic tenants are included in the Export Compliance Program. For properly Export Compliance Program. For properly implementing agreements, a plan must: implementing agreements, a plan must:

1.1. Be written and documented Be written and documented

2.2. Include training of essential personnelInclude training of essential personnel

3.3. Integrate export activity logsIntegrate export activity logs

4.4. Track compliance to provisos & limitationsTrack compliance to provisos & limitations

5.5. Contain user acknowledgments of provisos & Contain user acknowledgments of provisos & limitations limitations

Export Compliance Export Compliance Program Program

The The Export Compliance ProgramExport Compliance Program

Provides a written, documented process for Provides a written, documented process for communicating the terms & conditions of an communicating the terms & conditions of an approved agreementapproved agreement

Provides a process for Provides a process for authorized exemption authorized exemption acceptanceacceptance

Provides a process for obtaining a license and Provides a process for obtaining a license and approval of the terms and conditions by approval of the terms and conditions by requisite business unit personnel involved in requisite business unit personnel involved in the export transaction the export transaction

Limitations and ProvisosLimitations and Provisos Provides a process for management of license Provides a process for management of license

agreements, managing technology control agreements, managing technology control plans, and monitoring for complianceplans, and monitoring for compliance

Export Compliance Program Export Compliance Program When You Don’t Expect to When You Don’t Expect to

ExportExportFundamental elements of a Fundamental elements of a compliance program includecompliance program include

Export Compliance Management PolicyExport Compliance Management Policy Definition of export compliance roles and Definition of export compliance roles and

responsibilities definitionsresponsibilities definitions Party and country screeningParty and country screening In-house compliance In-house compliance TrainingTraining program program Documentation of ExemptionsDocumentation of Exemptions Record KeepingRecord Keeping Monitoring Monitoring and Internal Review and Internal Review

what to do when export controls apply

Documents

foreign students

foreign brancheswho

export control regulations

foreign national staff

foreign policy interests

examples of foreign

shipment of controlled

digital of controlled