1. Chief Research Compliance Officer
EXPORT CONTROL BASICS How Export Control Impacts on Research and Education
Sreekant Murthy, Ph.D.
Chief Research Compliance Officer
Rowan University

2. Overview – Topics to be Covered
The Basics: Exports, Deemed Exports, Definitions
The Export Control Regulatory Framework --
ITAR, EAR and OFAC
Exclusions
Penalties
Application to University Research and education.
Export Control for Researchers
One of the core mission of Rowan University is the ability for its students and faculty to engage in research in open environment as governed by University’s Openness in Research Policy.
However, while carrying out this research mission, faculty and students sometimes have to be mindful of various regulations that apply to the conduct of research.
Export Control regulations are one among those regulations that impose access, dissemination or restrictions on participations for national security reasons.
The purpose of this training is to make our faculty, staff and students aware of these regulations on this subject. Thus this training addresses some of the basics of export control needs, the export control regulatory framework on which agencies have the authority. What are some of the exclusions under these regulations that apply to freedom to conduct research, employment exemptions and education exclusions. What researchers, faculty and students should be aware of when they travel to attend national and international meetings. Penalties when those regulations are violated.

3. What is Export Control?
Federal laws to protect items, technical data and information important to the U.S.
U.S. laws and their implementing regulations prohibit the unauthorized “export” of certain controlled ITEMS, INFORMATION OR SOFTWARE to foreign persons or entities in the U.S. and abroad.
These laws have been in place over 20 years. However, they have become more prominent since 9/11.
Export control laws apply to all activities – not just sponsored research projects
These are federal laws to protect restricted items such as technical data and information important to our national security.
United States Export Control Laws prohibit the unauthorized “export” of certain controlled i

4. Export Control Regulations – What do they control?
EC regulations control the shipment or transfer, by any means of controlled items, software, technology, or services out of US.
EC regulations also restricts the release of certain information to foreign nationals here and abroad. This is called “deemed export”.
EC regulations my impose severe restrictions on the way the our faculty and students conduct research, which may impede international collaborations in certain research areas and especially research collaborations with restricted (embargoed) countries.
Noncompliance results in both monetary and criminal penalties against the individuals as well as the university.
Noncompliance may also results in reputational and financial harms to the university.

5. Importance of Export Control Compliance Due Diligence
Export Control Regulations have far-reaching implications on everyday University activities.
Many units (administrative, academic, research) of the University are affected.
Compliance with regulations requires a university-wide oversight program.
Non-compliance with regulations places the University and its personnel at risk of fines and/or imprisonment.

6. Government’s Concern
Open access/publication of scientific and technological results may provide unwitting assistance to nations or terrorist groups in developing weapons.
Protecting economic interests of U.S. companies.
Protecting U.S. national security and foreign policy interests by:
Denying our adversaries the means to advance their military potential
Implementing foreign policy objectives
Preventing terrorism
Inhibiting the proliferation of Weapons of Mass Destruction (nuclear, biological, chemical)
Fulfilling Multilateral Obligations (i.e. UN Sanctions, Trade Agreements)

7. What is Affected? All items/technology in the U.S. except:
Publicly available technology & software.
Publications that are artistic or non-technical in nature.
Items/technology located outside of the U.S.:
Items of U.S. origin wherever located.
Foreign made items if it exceeds certain % U.S. content or direct product of U.S. technology

8. Regulatory Framework
This is a complicated network of federal agencies and interrelated regulations that govern exports collectively referred to as “Export Controls”.
International Traffic in Arms Regulations (ITAR) are administered by Department of State
Controls Defense related items.
Export Administration Regulations (EAR) are administered by Department of Commerce.
Controls most other items.
Numerous other regulatory agencies control exports such as Department of Treasury (money), DOE (Nucs), DOJ (drugs), USDA (seeds), CDC-USDA (Biological agents).
Office of Foreign Assets Controls – OFAC.
The Department of the Treasury’s Office of Foreign Assets Controls (OFAC) administers economic sanctions programs with regard to a number of countries, using asset blocking and trade restrictions to accomplish US foreign policy and national security goals. OFAC periodically updates this list. (

9. General Provisions
Prohibits certain exports, reexports and other conduct without a license, license exception or determination that no license is required.
A license is a pre-approval to export (ITAR & EAR).
Usually valid for 4 years
Applies to a specific item to a specific country.
In the end, few items covered by EAR need a license—however, they must go through process to make the determination and be able to defend decision.
A Technical Assistance Agreement (TAA) (ITAR) is an agreement for the performance of a defense service or the disclosure of technical data. Rowan University will most likely use this option to get foreign researchers approved. A TAA does not authorize unrestricted publication-only an approval for the listed foreign person to work on the specific project.

10. Challenges EAR is not as simple as just looking at the nationality.
Very dependent upon the specific technology—some countries can receive some items.
Time factor in determining requirements and then applying for and receiving licenses-could be as long as days—depending on outside agency review.
ITAR is simpler in that it considers all foreign nationals equally as “dangerous”, however, specific technology is still a major consideration.

11. Activities Triggering Export Control Issues
They include the following:
Military or Defense Articles and Services
High Performance Computing
Dual Use Technologies (technologies with both a military and commercial application)
Encryption Technology
Missiles & Missile Technology
Chemical/Biological Weapons
Nuclear Technology
Select Agents & Toxins (see Select Agent/Toxin list)
Space Technology & Satellites
Medical Lasers
Travelling
With high tech equipment, confidential, unpublished or proprietary information or data
Laptops, web-enabled mobile devices and other personal equipment
Shipping or takin items overseas
Sponsored classified research with restricted access to the research by foreign nationals

12. Points to Consider
Export control laws apply whether or not there is a specific reference in the award document.
Applies not only to the PI and assigned researchers-need to consider where information is accessible (labs/computers) & control of information from other foreign persons.

13. Additional Considerations
Technology Control Management Plans (TCP)
Outlines how the controlled technology will be handled/secured to prevent access by unapproved foreign persons. Will be required even if there are no foreign persons assigned to the project.
Addresses physical security of labs & other work areas as well as security of data on computer networks (Information Security).

14. Discussion Items
Publication restrictions and impact on Graduate students/PIs working on project.
Administrative process/burden
TAAs and Technology Control Plans are time consuming to prepare.
Requires additional interaction between PI and sponsor to determine what technology is controlled.
Approval process by Federal Gov’t can take 8-10 weeks.
Security of labs/work areas/computers & network

15. Recommended Actions
Develop Rowan’s policy for dealing with export provisions
Outline responsibility of Office Research (OR) Administrators and PIs/Departments.
Put more burden on PIs and the sponsor to assist with identification of technology.
Process will involve several offices such as: OR, PIs, Departments, Research Deans, Associate Deans and possibly General Counsel.
Post policies & training materials on web site.
Educate OR, Research Deans and Depts. on general guidelines of EAR/ITAR and Rowan University policy.

16. Common Acronyms BIS – Bureau of Industry and Security
BIS Mission: Advance U.S. national security, foreign policy, and economic objectives by ensuring an effective export control and treaty compliance system and promoting continued U.S. strategic technology leadership. Maintains denied persons list, boycott list, and technology evaluation (OTE)
ECCN – Export control Classification Number
Five digit alpha numeric number for export control classification used in CCL
CCL – Commerce Control List
List of items divided into ten broad categories and five product groups under each of the broad categories.
ITAR – International Traffic in Arms Regulation
EAR - Export Administration Regulations
OFAC – Office of Foreign Assets Control
TAA -Technical Assistance Agreement (ITAR)
TCP – Technology Control Plan
A technology control plan (TCP) stipulates how a company will control its technology. The plan establishes procedures to protect classified, proprietary, and export-controlled information; to control access by foreign visitors; and to control access by employees who are non-U.S. persons.
TTCP – Technology Transfer Control Plan
USML- United States Munition List

17. US Munition List
The United States Munitions List (USML) is a list of articles, services, and related technology designated as defense- and space-related by the United States federal government. This designation is pursuant to sections 38 and 47(7) of the Arms Export Control Act (22 U.S.C and 2794(7)). These articles fall under the export and temporary import jurisdiction of the Department of State.
There are 20 categories of articles on the USML.

18. U.S. Munitions List (Part 121)
Categories
I- Firearms, Close Assault Weapons, & Combat Shotguns
II- Guns & Armament
III- Ammunition/Ordnance
IV- Launch Vehicles, Guided Missiles, Ballistic Missiles, Rockets, Torpedoes, Bombs and Mines
V- Explosives and Energetic Materials, 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

19. U.S. Munitions List (Part 121)
X. Personnel Protective Equipment XI. Military Electronics XII. Fire Control, Range Finder, Optical and Guidance and Control Equipment XIII. Auxiliary Military Equipment XIV. Toxicological Agents, Including Chemical Agents, Biological Agents, and Associated Equipment XV. Spacecraft Systems and Associated Equipment XVI. Nuclear Weapons, Design and Testing Related Items XVII. Classified Articles, Technical Data and Defense Services Not Otherwise Enumerated XVIII. Directed Energy Weapons XIX . Submersible Vessels, Oceanographic and Associated Equipment XX- Miscellaneous

20. EAR Categories (Dual Use)
Nuclear Materials, Facilities & Equipment & Miscellaneous Materials, Chemicals, Microorganisms and Toxins
Materials Processing
Electronics Design, Development and Production
Computers
Telecommunications & Information Security
Sensors and Lasers
Navigation and Avionics
Marine (ships & vessels)
Propulsion Systems, Space Vehicles and Related Equipment

21. Examples of EAR Controlled Technologies
Batteries and Fuel Cells
Cameras and Optics Equipment
Artificial Intelligence Software
Certain Computer Equipment
Items using Laser Technology
Certain Chemicals, Microorganisms and Toxins
The list depends on interplay of type of item, reason for export control and destination country
This list is large and a bit cumbersome to manage
There is an index that helps you navigate to the right place within the CCL by identifying the “ECCN” (export control classification number

22. Examples of ITAR Controlled Technologies and Items
Explosives
Rocket Systems
Military Training Equipment
Spacecraft and Satellite Equipment (even if not for military use)
Toxicological Agents and Equipment
Biological Agents
Radiological Equipment (including nuclear radiation detection and measurement devices)
Defense Services

23. EAR Embargoes U.S. Embargoes Cuba – most stringent embargo
Iran – comprehensive trade and investments
Sudan – comprehensive
Syria – general order
U.N. Embargoes (arms embargoes)
Iraq
Rwanda
Russia

24. ITAR Prohibited Countries
Arms Embargoes: Cuba, Iran, North Korea, and Syria
Belarus, Burma, China, Eritrea, Sudan, Venezuela, and Vietnam
Denial Policy with Exceptions:
Afghanistan, Cote d'Ivoire (Ivory Coast), Cyprus, Fiji, Haiti, Iraq, Lebanon, Liberia, Libya, Rwanda, Republic of the Congo, Somalia, Sri Lanka, Yemen and Zimbabwe.

25. Export Control Exclusions
Includes the following:
Fundamental Research (ITAR and EAR)
Educational Exemption (ITAR only)
Employment Exemption (ITAR Only)
Public Domain
A license is not required if one of the above exclusions applies.

26. Fundamental Research Exclusions and Reasons for loss of Fundamental Research Exclusions
Fundamental Exclusions include:
Basic and applied research
May include foreign nationals
There can be no restrictions on access by students or others
No restriction on publication
Research carried out openly
Results are intended to be shared broadly in the scientific community
This Allows unrestricted access to research and free interchange of information, recognizes the open campus culture and environment and Supports compliance with U.S. export control regulations. Information in the Public Domain is not controlled.
Reasons for Loss of Exclusion
The university accepts any contract clause that:
Forbids the participation of foreign persons;
Gives the sponsor a right to approve publications resulting from the research; or Otherwise operates to restrict participation in research and/or access to and disclosure of research results.
There are side deals between the PI and the sponsor

27. Education Exclusion
The ITAR provides that information concerning general scientific, mathematical or engineering principles commonly taught in schools, colleges and universities, is not included in the definition of technical data subject to the ITAR [§120.10(a)(5)].
Excludes technology or materials.
EAR excludes education information released by instruction in catalog courses and associated teaching laboratories
The EAR education exclusion does not extend to the release of information in research labs not associated with catalog courses.
You do not need a license to share information as part of a course.
You can train foreign nationals on how to use most otherwise - controlled equipment that is part of a class or class laboratory.

28. Employment Exclusions
No license is required to share controlled technical information with a foreign person who:
is a full-time, bona fide university employee
has a permanent address in the US while employed provided that person is:
not a national of certain countries and
is advised in writing not to share controlled information with other foreign persons.

29. Export Control – How does it Affect Researchers?
Researchers may be affected by export controls if:
They teach courses – online courses
They perform research on campus or elsewhere.
They plan to travel outside the United States to attend conferences and make presentations.
They may be interacting with foreign national.
They may need to ship items, software or information internationally.
They need to be careful by not violating a sanction or embargo when they, or the institution make payments for purchased items, services, or reimburse expenses.
They are required to fully comply with institution’s EC policies and all U.S. export control laws and regulations.

30. Why do researchers need to know about Export Control?
Researchers are at the “front line” of export control issues because:
They have control over the scope of the research project
They are the ones who make the decision regarding equipment or technology which will be implemented and to whom it may need to be transferred
Because researchers have ultimate control of the research project, their input is critical to help contract administrators evaluate technical aspects of export control issues

31. Questions to Consider for Researchers
What is the technology?
Must know the specifics-will require help of PI and/or sponsor.
Who is going to be working on project?
What nationality and status?
Certain countries are embargoed by both agencies: Cuba, Libya, Sudan, Iran, Iraq
Where is the work going to be accomplished?
On/off Rowan property?
If in Rowan University offices/labs-who has access?
Rowan has developed a checklist for researchers to verify whether research is EC-regulated

32. What should Faculty Know About EC?
International Travel
Shipping
Attending Conferences
Presenting in Conferences
Travel Restrictions
Deemed Export
Embargoed Countries list
Applicable Research
Self Checklist
Faculty Assistance

33. International Travel Restrictions - What Researchers Can Take?
When they leave the country, everything you take is an export, including devices, software, and data.
They cannot take ITAR-controlled articles, technical data, or software (which the ITAR considers to be technical data) without a license from the State Department. Tangible items developed through fundamental research which was excluded from export controls are still subject to the ITAR.
To be clear: if they have ITAR-controlled technical data, such as a document or drawing, on your laptop, you cannot take it out of the US, even if you have no intent to transfer the items to a non-US person.
In most cases, US and non-US persons can take EAR-controlled items and software, including your laptop and PDA, using EAR license exception TMP (Temporary exports) or BAG (Baggage) can use the exceptions to take EAR items and software.

34. International Travel Restrictions -What Researchers Can Take (Continued)?
US persons can use the exceptions to take EAR-controlled technology, but this does not authorize its transfer to someone not otherwise authorized to receive it.
To be clear: these exceptions don’t authorize a non-US person to take EAR-controlled technology out of the US, even if it has been transferred to them as an acceptable deemed export
Continue to Using TMP (Temporary Imports, Exports and Re-exports) or BAG (Baggage) exceptions.
Remember that destination countries have their own import and export controls (see Travel.State. Gov), which may affect how researchers can use items while there and what you can take out of the destination country.

35. Attending Conferences
The EAR considers information released at an “open” conference, meeting, seminar, trade show, or other open gathering to be published, and so excluded from EAR control. ◦
“Open” means that all technically qualified members of the public are eligible to attend and attendees are permitted to take notes or otherwise make a personal record (not necessarily a recording) of the proceedings and presentations.
An “open” conference can charge a registration fee reasonably related to cost, and can limit actual attendance, as long as attendees either are the first who have applied or are selected on the basis of relevant scientific or technical competence, experience, or responsibility.

36. Attending and Presenting at Conferences
The ITAR considers information released through unlimited distribution at a conference, meeting, seminar, trade show or exhibition, generally accessible to the public, in the United States to be in the public domain, and so excluded from ITAR control.
Researchers can consider information you receive at an open conference to be publicly available information, excluded from export controls.
Researchers can deliver or present the results of your fundamental research or other information in the EAR and ITAR scope at open conferences.
Outside the US, researchers can deliver or present the following information in the ITAR scope:
General systems description ( such as top-level drawings, top-level narrative descriptions or summaries of performance requirements, key subsystems, top-level block diagrams, top-level description of operational modes, top-level equipment layout drawings, and top-level predictions of power usage or consumption), since this is not considered ITAR technical data (ITAR §120.10(a)(5)).
Public domain information, such as published research results or material previously released in a university course, at conferences or meetings outside the US.

37. International Travel Restrictions on Where you can go
Check the U S Department of the Treasury, Office of Foreign Assets Control web site for a list of Embargoed Countries.
Check the University Travel Policy.
If you decide to travel to an embargoed country, you must sign Rowan’s travel form before departure, acknowledging the risk and personal responsibility for the decision to travel.
There may be other restrictions that may need to be followed. Please check with Office of Research to obtain further information on International Travel.

38. International Travel Restrictions on What you can do When you Get there
While US sanctions programs and restrictions on transactions with specific parties always apply, the likelihood of being affected by them increases when you’re outside the US.
Cuba, Iran, North Korea, (North Sudan) and Syria are subject to strict controls. If you will be working with nationals of these countries, you should be familiar with both.
Working with China entities and nationals can be complicated by US policy toward China, which includes both enthusiastic support for commercial transactions and strong aversion to support of the Chinese military. Some apparently benign China institutions are considered by the US government to be closely related to the military, resulting in restrictions on transactions with them.
OFAC’s Specially Designated Nationals and Blocked Persons List and the Commerce Department’s Entity List are the most relevant, but the government maintains a total of 35 lists with various restrictions. You can check most of these using the National Export Initiative’s consolidated list, or consult Rowan’s Export Control Officer.

39. International Shipping
International shipping is also subject to numerous export and import controls and regulations. Fines, confiscation, or incarceration can all result from failing to comply.
Most things, and some software & information, are export-controlled to some degree.
Some items are hazardous, and need to be packaged and labeled appropriately. Contact Rowan’s EHS for further information.
The shipment (Export and Import) can be delayed or incur unexpected costs if the paperwork is wrong or incomplete.
All imported shipments are cleared by U.S. Customs, with varying levels of scrutiny. Some items that are hazardous may be restricted.

40. Key Issues for University Research
Deemed Exports
The obligation to obtain an export license from BIS before releasing controlled technology to a foreign person is informally referred to as a deemed export. Release of controlled technology to foreign persons in the U.S. are "deemed" to be an export to the person’s country or countries of nationality and is found in 734.2(b) of the EAR.
Scope of Fundamental Research Exclusion
Foreign National restrictions in contracts
Government-sponsored research covered by national security contract controls
ITAR – “defense articles” and “defense services,” especially in space research and, increasingly, in life sciences and nanotechnology research
The application of OFAC sanctions to university-sponsored or related activities

41. Examples of common university deemed export risk areas
Equipment & material purchase, usage & disposal
Research agreements
International agreements
Material transfer agreements
Nondisclosure agreements
Software and other intellectual property licenses
International travel
Select biological agents
Contractual services agreements
Affiliates programs

42. Examples of Applicable Research
Electrical engineering, integrated circuits, encrypted software, advanced
telecommunications
Applied physics – ex. lasers and other equipment
Nanotechnology and new materials – ex. composites and ceramics
Life Sciences and Chemicals (including academic medical centers and health sciences centers)
Optics and imaging
Detection of toxic chemical aerosols
Plasma and biomedical research with lasers
Research with controlled chemicals, biological
agents, and toxins
Biological samples
Crop dusting, aerosol dissemination
Tangible products of fundamental research (prototypes, materials, some software) are not excluded. These items may require authorization for export from the US.
Note: The intellectual product of fundamental research (publishable results) is excluded from export controls.

43. What university areas are affected by Export Control Regulations?
Engineering
Medicine
Nursing
Pharmacology
Sciences, et al.
Education and Training
Computing and Information Technology
Technology/Material Transfer
Grants and Contracts
General Counsel
International Study Programs
Purchasing
Shipping and Receiving
Environmental Health and Safety
International Collaborations

44. Questions to Ask Yourself
Does the research involve any of the EAR categories?
Does the research involve any item on the ITAR Munitions List?
Does the research involve technology or devices designed for use in military, security and intelligence applications?
Does the research involve anything else wit a substantial or dual-use military application?

45. Export Control Review Process
Assistance is available for:
Preliminary Evaluation
Review proposals in the scientific areas of the greatest risk for export control issues
Red Flags
Encryption Software
Technology/Equipment on Commerce Control List (EAR) OR the Munitions List (ITAR)
Sanctioned Countries
Foreign Nationals/Travel
Proprietary Information

46. Assistance for Export Controlled Technology
If your technology is export controlled, assistance is available to Determine:
The correct classification and reason(s) for control
If a license is required to the intended destination and/or recipient
Checking for an available license exception or exclusion
Checking the lists of restricted/debarred individuals and institutions denied export privileges; and
Applying for a license, if necessary
Contact Information
Office of Research and Sponsored Programs
James Hall
200 Mullica Hill Road
Glassboro, NJ 08028

47. Rowan’s Commitment for Export Control
Creating processes charged with monitoring export compliance;
Appointing an export compliance official to oversee the export compliance program;
Implementing a process for screening third-parties (Visual Compliance);
Addressing record keeping requirements;
Establishing a procedure for employees to report suspected violations; and
Providing a means for investigating potential violations and when necessary, reporting them to appropriate government agencies.

48. Consequences of Non-Compliance
Failure to comply with U.S. export control laws can result in severe penalties to individuals as well as the university:
Civil penalties up to $500,000 each violation
Criminal penalties up to $1,000,000 each violation
Imprisonment up to 10 years.