1. BASIC PRINCIPLES RF Symposium March 24, 2015
EXPORT COMPLIANCE
BASIC PRINCIPLES
RF Symposium March 24, 2015

2. 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.

3. 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.

4. 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.

5. 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.

6. 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.

7. 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.

8. 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

9. 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.

10. 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.

11. Public Domain/Publicly Available
Fundamental Research (FRE)
Educational Information (EIE)
Open Conferences, Seminars
Some Patent Applications

12. 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.

13. 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.

14. 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.

15. 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.

16. 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.

17. 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.

18. 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.

19. 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).

20. 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.

21. 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.

22. Areas for Review Sponsored Programs Activity
Third Party Proprietary Data
International Travel
International Collaborations
Lab Activity that is not Fundamental Research

23. Areas for Review continued
Employees
International Visitors
Purchasing
Accounts Payable
Shipping and Receiving

24. 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.

25. 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.

26. 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.

27. 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.

28. 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?

29. 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.

30. 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.

31. Purchasing and Accounts Payable
Conduct a RPS.
Request the export classification from the vendor.
Alert campus official of controlled items being ordered.
Accounts Payable
Review for OFAC compliance.

32. Shipping and Receiving
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.

33. Resources
Know Your Customer Guidance, DoC, Bureau of Industry and Security
Core Elements of an Effective Export Management and Compliance Program, DoC, Bureau of Industry and Security

34. Resources
International Traffic in Arms Regulations Export Administration Regulations Office of Foreign Assets – Sanctions Programs

35. Resources Export.gov Frequently Asked Questions
Federal Bureau of Investigations
Council on Governmental Relations
Association of American Universities
International Travel Information