what are export controls? a comprehensive series of regulations enforced by the federal government...

What are Export Controls?

• A comprehensive series of regulations enforced by the Federal Government that regulate the distribution of certain exports to foreign nationals and foreign countries

• Have been in existence in one form or another since the 1940s

• Export control laws apply to all activities – not just sponsored research projects

• Control involves obtaining a license from the federal government prior to exporting

1ORA/Protections and Compliance http://www.umbc.edu/research/

Export Controls

• Why?• Basics• Terms• Exclusions and Exemptions• Areas of Concern• UMBC Management of EC• Case Studies


Why is this important?

• Protect National Security & US foreign obligations

• Combat Terrorism• Prevent spread of weapons of mass

destruction (nuclear, chemical, biological, missiles, etc)

• Avoid harm to UMBC’s reputation and adverse publicity


Why - Liability and Violations

• Individual & institutional penalties:• Large fines & jail time ($500K Civil & $1M Criminal)• Multiple violations/finding for same occurrence

• Not just you - Could result in UMBC wide: • All settlements public• Draconian compliance and reporting• Loss of export privileges (exporting is not a right)• Adverse impact on federal awards


Export Controls



Basics What are Export Controls?

US laws that regulate the distribution to foreign nationals and foreign countries strategically important technology, services and information for reasons of foreign policy and national security.


Basics What is an Export?

• Transfer of Controlled:Technology Software Information Source Code Equipment Services (ITAR)

• To:– Anyone, including U.S. citizens outside the U.S.– A non-U.S. entity or individual, wherever located (Deemed export )

• By Any Means:– Actual shipment outside the US– Visual inspection in or outside the US– FAX – PHONE – EMAIL – FACE to FACE– Tours of labs– Training sessions– Computer data


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BasicsWhat is a “Deemed” Export?

• The transfer, release or disclosure of Technical Data or Technology to a foreign national within the United States (includes university campuses).

• A transfer is the same as exporting it to the home country of foreign national.

ORA/Protections and Compliance http://www.umbc.edu/research/

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BasicsWho are U.S. Persons?

–U.S. citizens–Aliens who are “Lawful Permanent

Residents” (Green Card holders) –Other “Protected Individuals”

–designated an asylee or refugee–a temporary resident under amnesty

provision–Any entity incorporated to do business in the

U.S.


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Basics Who are Foreign Persons?

Everyone else:• Any foreign interest or any US Person effectively

owned or controlled by a foreign interest– Includes foreign businesses not incorporated in the U.S.,

persons representing other Foreign Persons, any foreign government

– Includes: H1B Work Visa, F1 Study Visa, J1 Training Visa, E1 Investors Visa, TN Work Visa, L1 Intra-Company Transfer Visa, K and V Fiancée Visas

EAR does not use the term foreign person - instead it refers to “foreign national”- they mean the same thing


Basics - Application

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• Applies to following UMBC areas: * Research * Purchasing* MTA, CDA, LA * Human Resources

* Shipping * Visiting Faculty – Foreign Nationals

* Foreign Travel * International Education* Foreign Students

• Export control laws apply to all activities – not just sponsored research projects

•Your award does not have to cite the regulations for export controls to apply


Basics Who Controls Exports & Sanctions?• US Dept of Commerce*• US Dept of Energy• US Dept of Homeland Security• US Dept of Justice• US Dept of State*• US Dept of Treasury*

* Focus of this presentation


Basics - Most Common US Agencies

Department of Commerce

Export Admin Regulations

(EAR)

Trade Protection

Regulates commercial goods & Services with potential

military application (Dual Use)

Commerce Control List (CCL)

Bureau of

Industry and

Security (BIS)

Department of State

Department of Treasury

International Traffic in Arms

Regulations (ITAR)

Office of Foreign Assets Control (OFAC)

Directorate of Defense

Trade Controls (DDTC)

National Security

Export of articles, services & related technical data

that are military in nature

US Munitions List (USML)

Sanctions against:Foreign Countries & GovTerrorists, Narcotics, War

Criminals, Weapons Proliferators

Trade Embargos


Export Controls



TermsDept of Commerce

EAR (15 CFR §§734-774) – Export Administration Regulations cover commodities, technology & software.

* Shipment or transmission out of the US

* Release to a foreign national in the US.

Release of export-controlled technology and source code can also occur through transmission via e-mails, faxes, designs, and verbal correspondence.


Terms EAR – Commerce Control List Categories

• Category 0 - Nuclear Materials, Facilities & Equipment (and Miscellaneous Items)

• Category 1 - Materials, Chemicals, Microorganisms, and Toxins • Category 2 - Materials Processing • Category 3 – Electronics • Category 4 – Computers • Category 5 (Part 1) – Telecommunications • Category 5 (Part 2) - Information Security • Category 6 - Sensors and Lasers • Category 7 - Navigation and Avionics • Category 8 – Marine • Category 9 - Propulsion Systems, Space Vehicles and Related

Equipment


Terms EAR – Application

Listed items are subject to EAR but only some require prior U.S. government approval. Depends on Key Questions:

• What material, technology, data, or software?• Who is participating in the research (different standards for

different countries and foreign nationals)?• Where is the destination of the export (country, institution, and

individual)?• What is the intended or suspected end use or end-user, plus

any reasonably foreseeable re-export?• Do any exclusion or exemptions apply?


TermsDept of State

ITAR (22 CFR Parts 120-130) – International Traffic in Arms Regulations cover military articles, services and related technical data

Prior Authorization required for:– Sending or taking out of the U.S. in any manner– Disclosing (including oral or visual disclosure) – Transferring to a foreign person, whether in the U.S. or

abroad. – Performing a defense service on behalf of, or for the benefit of,

a foreign person, whether in the U.S. or abroad.

Certain information may be controlled even if in public domain – Defense Services.


Terms ITAR Munitions List

121.3 Aircraft and related articles

121.4 Amphibious vehicles

121.5 Apparatus and devices under Category IV(c)

121.6 Cartridge and shell casings

121.7 Chemical agents

121.8 End-items, components, accessories, attachments, parts, firmware, software and systems

121.9 Firearms

121.10 Forgings, castings and machined bodies

121.11 Military demolition blocks and blasting caps

121.12 Military explosives and propellants

121.13 Military fuel thickeners.

121.15 Vessels of war and special naval equipment.

121.16 Missile Technology Control Regime Annex.


TermsDept of Treasury

OFAC (31 CFR 500-599): The Office of Foreign Assets Control regulations are based on US foreign policy and national security goals. They cover economic and trade sanctions against targeted foreign countries, terrorists, international narcotics traffickers, and those engaged in activities related to the proliferation of weapons of mass destruction.


Terms OFAC Application

• OFAC license required for services to or from:– Countries, entities, or individuals

• Covers Sanctions and Embargos • May apply when ITAR & EAR do not

• Multiple lists must be checked (applies to entities and individuals even if their country is not listed)

• Covers some practices (ie proliferation of WMD or diamond trading)

• Restrictions vary by country• Some exemptions apply for academic collaboration



• Prohibits:– Travel to embargoed countries

• (Cuba, Iran, North Korea, Sudan, Syria)

– Sanctions against Countries, Entities, Individuals• Research, field-work, or instruction • Surveys or interviews • Trade – Importing merchandise • Furnishing anything of value (ie materials, payments,

services, honoraria, training) • Collaborating, presenting or training



• Prohibits (Cont’d):• Creating new information materials at the

behest of persons in a sanctioned country• Providing educational, marketing & business

service to persons in sanctioned countries• Engaging in services of persons in a

sanctioned country to develop new information materials


Terms EAR & ITAR End User Controls/Prohibitions

• Separate from USML & CCL, ITAR & EAR prohibit exports to, or export collaborations with, certain designated entities or countries identified as export violators both in and outside the U.S.

• So, CCL and USML may say no license is required in general, but you need to also check their lists to determine if more stringent restrictions apply to the entity or country– Don’t be fooled by their “Academic” names (Beihang

University, SW Institute of Env Testing, Chinese Academy of Engineering Physics).


TermsTheir “Lists”

• Denied Persons List (BIS)• Unverified List (BIS)• Entity List (BIS)• Specially Designated Nationals List (OFAC)• Debarred List (DDTC)• Nonproliferation Sanctions (DDTC)


Export Controls



Types of Exclusions and ExemptionsExclusion – Outside the regulations not subject to the regulations

Exemption - License not required for item or activity as defined within the regulations

• Public Domain Exclusion (ITAR,EAR,OFAC)• Fundamental Research Exclusion (ITAR, EAR)• Education Exclusion (ITAR, EAR)• License Exception TMP (Temporary Exports)• Full-Time Employee Exemption (ITAR)

Must be used correctly; failure may result in an export control violation


Export Controls



Areas of Concern Definition of “Equipment Use”:

– (ITAR) Operation, design, development, production, manufacture, assembly, repair, testing, maintenance or modification of defense articles

– (EAR) Operation, installation (including on-site installation), maintenance (checking), repair, overhaul and refurbishing


Areas of Concern Equipment Use:

–Generally, use of EAR export controlled equipment is not a deemed export. Deemed export occurs only if the controlled technology is transferred.

–There are no exclusions allowing foreign persons to use equipment controlled for “use technology” which requires the access to the company/manufacturers proprietary manual or instructions for the use.


Areas of Concern Shipping equipment to a foreign country

A license is required to ship if controlled by ITAR to any foreign country (few exemptions).

A license may be required to ship equipment controlled under the EAR out of the US depending on what the equipment is, where it is being sent, who will be using, and for what purpose (many exceptions)

Process to classify equipment and obtain a license under EAR may take several months

There is a presumption under OFAC that any and all shipments of equipment and provision of services to countries under sanction or persons in those countries are ILLEGAL.

Collaborating with foreign colleagues in foreign countries

Teaching foreign persons how to use items in research (“Defense Service”)

Controlled software use in classes


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Areas of Concern• Sponsor publication approval or foreign

national restrictions • Contracts with DoD, NASA, DHS, Intel

Agencies• Proprietary technology research with industry

or government • Accepting another party’s proprietary

information• International sponsors, subcontractors


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Areas of Concern

• Non-sponsored research at university• Collaborating with a country subject to US

sanctions• Projects in your garage• Attending “closed” mtgs & conferences DD2345• Faculty start-up companies (no FRE)• Providing services (not research)• Protecting students • Consulting work• MTA’s and NDA’s

44http://www.umbc.edu/research/

Areas of Concern - Penalties


ITAR EAR OFACCriminalCriminal

Up to $ 1 million for a university or companyUp to $1 million per violation for individuals and/or up to 10 years in prison

Civil violationsCivil violationsUp to $500,000 / violation for individuals, a university or companySeizure of articlesRevocation of exporting privileges

CriminalCriminalUp to $1 million for a university or companyUp to $250,000 / violation for individuals and/or up to 10 years in prison

CivilCivilLoss of export privilegesUp to $12,000 / violation for individuals, a university or company

CriminalCriminalMaximum fine of $100,000 for individuals and/or 10 years imprisonmentMaximum fine of $1 million for a university or company

CivilCivilMaximum fine of $55,000 / violationViolations of specific sanctions may add additional penalties

Export Controls



UMBC’s EC Management System• Sponsored Programs

– Export Control Flow Chart and Questionnaire created– Questions are being added to Routing sheet– Practical EC training

• UMBC Community– Created EC information web site (found at

http://www.umbc.edu/research/ORPC/_– Established EC Official - Dean Drake– Established Legal Support – Dave Gleason– Execute EC Policy – Draft routed– Outreach and training program

• Schedule times at College faculty meetings• Add EC component to DRATT and PI training• On agenda for Departmental Mtgs (BRA, RAG, etc)


http://www.umbc.edu/research/Resources/export_control.html

http://www.umbc.edu/research/ORPC/

UMBC’s EC Management System

• Work with key areas outside of research -Travel, Shipping, Procurement, ESH, IT, HR, Academic Affairs

• Shows due-diligence on our part• Will help protect academic

freedom and exclusions


Export Controls



Export Controls – Case Study• I am a researcher at UMBC. I am only conducting research on campus with students and other faculty and don’t plan to ship anything outside the United States. Do export

controls affect me?

• Yes. An "export" also includes furnishing technical data to foreign persons or releasing technology or software to foreign nationals within the US and abroad. These types of exports are called "deemed exports" because the regulations deem them to be the equivalent of sending the same items (commodities, software, technology, technical data, defense articles, services) to the foreign national’s home country. Deemed exports can occur even when providing technical data in the form of graphs, specifications, or other technical information to a foreign student working in your lab. Whether it is a deemed export depends on whether the items provided is subject to and listed on the CCL or is considered technical data under ITAR.


Export Controls - Case Study

• I will be traveling to China to do research work with my collaborator, who is a faculty member at a university in Beijing. I will be providing her with my research results from my studies at UMBC but also undergoing further research at her lab. Do I need to be concerned about export controls?

• Yes. Your research results produced at UMBC are considered fundamental research results and fall under the fundamental research exclusion. However, information resulting from your research efforts in China does not fall within this exclusion from the export control regulations. Any transfer of controlled information to a foreign national, whether here or abroad, is considered an export and may require a license. Please check the CCL and USML to see whether your research in China will involve controlled technology, information or software. If so, please contact the Office of Research Protections and Compliance to determine what your next step is in order to undergo the collaboration.


Export Controls – Case Study

• I, along with another colleague, have received a request to provide peer review guidance to Professor K at the University of Tehran, whom both of us know well from international conferences. His work is strictly civilian and would not appear to have any connection to Iran’s government or military establishment. While I am a U.S. citizen, my colleague is a British citizen living in the U.S., though originally from Iran. He visits Iran occasionally on personal matters, and mentions that Professor K is interested in strengthening his ties to UC for professional and personal reasons. Can we provide the peer review?

• Potentially, not without an OFAC license. As a U.S. citizen subject to the OFAC rules, providing a peer review may constitute a service to Iran and is therefore prohibited without an OFAC license. The fact that you are not receiving compensation for the assistance or the Iranian professor’s work is purely civilian does not matter for purposes of the Iranian embargo regulation. While it is possible OFAC might grant such a license, this cannot be assumed. As to your British colleague, the fact he is living in the U.S. likely renders him subject to the same restriction.



I teach a grad course in the design and manufacture of very high-speed integrated circuitry. Many of the students are foreigners. Do I need a license to teach this course? What if the students were from countries that require a license? What if I talked about yet unpublished results?


No. The release of information by instruction in catalog courses and associated teaching laboratories of academic institutions is not subject to EAR. Even if one of the students was from a restricted country, or you talked about unpublished results from your research lab.


I have expertise in design and creation of submicron devices. I have been asked to be a consultant for a “third-world” company that wishes to manufacture such devices. Do I need a license?


Quite possibly. Applications abroad of personal knowledge or technical experience acquired in the US constitutes an export of that knowledge and experience and is subject to EAR. If any part of the knowledge or experience your export or re-export deals with technology that is listed under the CCL you may need a license. Note: As a consultant you are outside the university.

Export Controls

• Why?• Basics• Terms• Exclusions and Exemptions• Areas of Concern• UMBC Management of EC


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www.umbc.edu/research/ORPCExport Control Management

Contact:Dean Drake

[email protected]

Questions?


http://www.umbc.edu/research/ORPC

mailto:[email protected]

what are export controls? a comprehensive series of regulations enforced by the federal government...

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