Export Control Compliance Program Guidelines

December, 2010

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TABLE OF CONTENTS

Introduction ........................................................................................ 3

Institutional Policy ............................................................................ 4

Federal Laws, Regulations, and Penalties ....................................... 5

Key Terms and Definitions ........................................................... 8

Training Program .................................................................................... 13

Regulated Items ......................................................................... 15

ITAR Controlled Items

Definition of Export Under the ITAR

Authorization to Export

Items Subject to the EAR

Export Control Classification Number

Determining License Requirements under the EAR ................... 18

Key Issues in University Activities .......................................... 19

Fundamental Research Exclusion

Educational Information Exclusion

Publicly Available Information / Public Domain

Physical Exports

Deemed Exports

Supercomputers

Encryption Technology

Restricted Party Screening Lists

Supplier Classification of Item

Immigration Sponsor Letters

International Travel

Export Control Checklist

Technology Control Plans

Identification, Receipt and Tracking of ITAR Controlled Items

Screening the Customer and Restricted/Prohibited Exports and Transfers

Large Equipment Purchases

Licensing Information ........................................................... 29

Roles and Responsibilities ............................................................................ 31

Record Keeping .............................................................................. 37

Audits and Review of Compliance Program .......................................... 38

Detecting and Reporting Violations ...................................................... 39

Export Control Decision Tools .................................................. 40

Is This Project Export Controlled?

EAR Export Control Decision Tree

Am I Subject to the EAR?

University of Massachusetts Lowell Online Resources ..................... 42

Helpful Information

Training Information

Forms

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INTRODUCTION

Export controls and trade sanctions are the United States laws and regulations that control and

restrict the release of critical technologies, software, equipment, chemical, biological materials

and other materials, and services to foreign nationals and foreign countries for reasons of foreign

policy and national security.

These laws apply to virtually all fields of science and engineering. They restrict the shipment,

transmission or transfer of certain commodities, software, technology and services from the U.S.

to foreign countries. Deemed exports, i.e. the release of controlled information to foreign

nationals located in the U.S., are also restricted under these laws and regulations. Export

control laws apply to

all

activities – not just sponsored research projects.

An export is:

•

Shipment of a controlled commodity, equipment, material, or software outside of the U.S.;

•

Disclosing controlled technology or technical data to a foreign national, whether in the U.S.

or abroad;

•

Performing technical assistance or defense services for or on behalf of a foreign national,

whether in the U.S. or abroad;

•

Exports within the U.S. are considered to be a “deemed” export to the foreign national’s

home country.

•

The following high risk disciplines have been designated for particular focus for export

control compliance at UMD:

Engineering, Physics, Computer Science, Biomedical

Research with Lasers, Research with Encrypted Software, Research with

Controlled Chemicals, Biological Agents, and Toxins, and Marine Sciences.

The following are factors to consider in determining the applicability of export regulations:

Is the activity considered fundamental research? (Will research results be

published and publicly available?)

Is the activity limited to teaching or instructional activities?

Is there a physical export of a good?

Are foreign nationals restricted from participating in the activity?

What is the Item’s Export Control Classification Number (ECCN) or U.S.

Munitions List (USML) category?

Where is it going (country)?

Who is the end-user (person or entity)? What is the intended end use?

Are you screening for persons or entities identified on any lists of sanctioned or

barred persons or entities?

Is a license required? If so, is enough time allowed to secure one?

10)

Will the activity involve a sanctioned or embargoed country?

These guidelines outline processes for members of the UMD community to follow to ensure

that UMD is in compliance with all export control laws and trade sanctions.

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FEDERAL LAWS, REGULATIONS, AND PENALTIES

Three U.S. Government agencies have primary export control regulatory responsibilities. The

Department of Commerce through its Export Administration Regulations (EAR), the State

Department through its International Traffic in Arms Regulations (ITAR) and the Arms Export

Control Act (AECA), and the Treasury Department through the Office of Foreign Assets

Control (OFAC) administer the export control laws and trade sanctions. The Commerce

Department administers the Commerce Control List (CCL) and the State Department

administers the U.S. Munitions List (USML).

The U.S. Government controls exports on a case-by-case basis, examining four factors: the

destination, the good, software, technology or service, the end-user, and its end-use.

Mechanism

Governing Department

Covers

EAR

Commerce

Dual-use goods, technology, chemicals and software

ITAR

State

Military items; space-related technology and research

OFAC

Treasury

Trade prohibitions with sanctioned countries/entities

EAR and ITAR apply to: the transfer of specific physical items and information; the provision

of specific services to persons and entities outside the U.S. (exports); and to the disclosure of

specific information and the provision of specific types of services to foreign nationals inside the

U.S. (deemed exports).

OFAC regulations restrict transactions with embargoed and sanctioned countries, persons and

organizations involved in terrorism, drug trafficking and proliferation of weapons of mass

destruction. Even when exclusions to EAR or ITAR apply, OFAC may prohibit payment,

travel and the transfer of items, assets, and services of value to sanctioned nations (check the

OFAC website

www.treas.gov/ofac

The majority of exports do not require government licenses. Licenses, however, are required

for commodities, software, and technology that the U.S. Government considers “subject to

the EAR” or are ITAR controlled. Export controlled transfers usually are required for one of

the following reasons:

for the latest information about embargoed countries).

•

The nature of the export has actual or potential military applications or economic

protection issues;

•

Government concerns about the destination country, organization, or individual;

•

Government concerns about the declared or suspected end use or the end user of the

export.

Even if an item appears on lists of controlled items, there may be exemptions, exclusions or

exceptions that apply, such as the exclusion for “fundamental research”. For research to be

considered “fundamental research” there cannot be personnel access restrictions or

publication restrictions that apply.

The University will assist any member of the University community in complying with export

control laws and trade sanctions, including securing licenses from U.S. Government agencies,

where appropriate. However, the primary responsibility rests with the faculty member or

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researcher as the individual most informed about the contemplated project and the technical

nature and properties of the goods, software and technology.

Faculty and other researchers are responsible for:

•

Knowing classification of and export compliance requirements for the equipment,

software, chemicals, materials and technology they handle, lease or procure;

•

Knowing whether the proposed research project will be subject to export control

restrictions due to publication or other dissemination restrictions or personnel access

restrictions;

•

Knowing the classification of and export compliance requirements for company

proprietary information they receive under a confidentiality obligation;

•

Having an effective security plan to protect export controlled information in their

possession, taking into account foreign nationals under their supervision;

•

Complying with all export control requirements that apply to physical shipments,

including proper shipping permits and making AES filings;

•

Making export control analysis (including screening for sanctioned or embargoed

persons, entities and countries) prior to foreign travel, sponsoring foreign visitors at

UMD, engaging in research with foreign collaborators, engaging in research

sponsored by foreign persons, or conducting research in foreign countries

More information, materials and forms are available at the OIC website at:

http://www.atmc.umassd.edu/institutional_compliance/export.cfm

For step-by-step instructions on how to determine the ECCN of any good, software or

technology follow the instructions on the Department of Commerce web page at

http://www.bis.doc.gov/licensing/exportingbasics.htm Also, there is free online training

available from the Department of Commerce at:

http://www.bis.doc.gov/seminarsandtraining/seminar-training.htm

A helpful tool for analyzing exclusions under the EAR for publicly available information is the

Questions and Answers – Technology and Software Subject to the EAR which is found in

Supplement 1 to part 774 of the EAR at

Other Federal Laws

http://www.access.gpo.gov/bis/ear/pdf/734.pdf

In addition to export control laws, select agents and toxins are also regulated by the Centers for

Disease Control and Prevention (CDC) and / or the Department of Agriculture (USDA).

For more information about the regulations refer to http://www.selectagents.gov/index.html

Other activities are exclusively regulated by other laws and agencies. Examples include the

Nuclear Regulatory Commission, the Department of Energy, the Food and Drug

Shipment of these materials ordinarily requires an export license even where transfer

exemptions may be available under select agents and toxins regulations.

Administration, and the Drug Enforcement Agency, and those laws and regulations must be

consulted and complied with.

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Penalties

There are severe civil and criminal penalties, including fines and imprisonment, for

violating the export control laws and trade sanctions. The university and the individuals

involved are each subject to these penalties. In addition, the government may revoke the

University and / or the individual(s) involved ability to export. Entities and individuals

found guilty may be suspended or debarred from government contracting.

The criminal and civil penalties for unlawful export and disclosure of information in

violation of U.S. export control laws and trade sanctions include the following, depending

on the items involved and the jurisdiction:

EAR

: Criminal violations by the university can incur penalties up to $1 million for

each willful violation. For individuals, these penalties can reach up to $1 million

or 20 years imprisonment, or both, per violation. Civil penalties for both the

university and individuals can reach up to $250,000 per violation, or two times the

value of the export, whichever is greater. These violations can also result in a denial

of export privileges as well as other potential collateral penalties.

ITAR

: Criminal penalties can reach up to $1 million per violation and 10 years

imprisonment for individual willful violations. Civil penalties imposed upon

departments, agencies, and officials can reach up to $500,000 per violation. A

university found to be in violation of ITAR regulations can be debarred from

contracting with the government and could lose its export privilege.

OFAC

: Penalties range depending upon the sanction regime in question.

Criminal violations by the university can reach up to $1 million, and criminal

penalties for individuals can reach $1 million or 20 years in prison, or both. Civil

penalties can be imposed up to $250,000 per violation, or two times the transaction in

question, or both.

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KEY TERMS AND DEFINITIONS

Even common words have very specific meanings within the export control laws. Below are

the definitions of key terms used in the export control regulations. For additional guidance,

see the EAR definitions: http://www.access.gpo.gov/bis/ear/pdf/772.pdf or ITAR definitions:

Commerce Control List (CCL) -

List of items under the export control jurisdiction of the

Bureau of Industry and Security, of the Department of Commerce. The CCL is found in

Supplement 1 to Part 774 of the EAR. See

http://www.pmddtc.state.gov/regulations_laws/documents/consolidated_itar/2009/Part_120.d

http://www.access.gpo.gov/bis/ear/ear_data.html.

The CCL is divided into ten categories: (0) Nuclear Materials, Facilities and Equipment, and

Miscellaneous; (1) Materials, Chemicals, "Microorganisms," and Toxins; (2) Materials

Processing; (3) Electronics Design, Development and Production; (4) Computers; (5)

Telecommunications; (6) Sensors; (7) Navigation and Avionics; (8) Marine; (9) Propulsion

Systems, Space Vehicles, and Related Equipment.

Every CCL category is subdivided into the same five groups, designated by the letters A

through E, as follows: (A) Equipment, assemblies, and components; (B) Test, inspection and

production equipment; (C) Materials; (D) Software; and (E) Technology.

Deemed Export

– Whenever a foreign national on U.S. soil (or abroad) may be exposed to or

is able to access in any manner export-controlled technology or software (EAR) or technical

data required for the development, production or use of controlled articles, or performance of

a defense service (ITAR). EAR citation is 15 CFR 734.2(b). ITAR citation is 22 CFR

120.17. Deemed exports do not include the mere transfer or access to controlled articles or

materials without any associated information. It is “deemed” to be an export to the home

country of the foreign entity or individual. Deemed exports may occur through such means as

a demonstration, oral briefing, or plant visit, as well as the electronic transmission of non-

public information or software. More information about “deemed exports”

is available here:

http://www.bis.doc.gov/deemedexports/deemedexportssupplementqa.html

Deemed Re-export

– The release of controlled technology by a foreign national who has

been licensed to receive it to the national of another foreign country who has not been

licensed to receive the controlled technology. For example, ECCN 5E001 technology may be

exported to a university in Ireland under the license exception for technology and software,

but might require a deemed re-export license authorization before being released to a Russian

foreign national student or employee of that university in Ireland.

Defense Article

- Any item designated in the U.S. Munitions List. These items consist of

articles which are specifically designed, developed, configured, adapted or modified for

military application and related technical data. Examples include specified chemical agents,

cameras designated for military purposes, specified lasers, and some GPS equipment and any

directly related technical data. (ITAR 120.6)

Defense Service

- Providing of assistance (including training) anywhere (inside the United

States or abroad) to foreign persons in connection with the design, development,

engineering, manufacture, production, or use of a defense article, and the furnishing of any

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related technical data. (ITAR 120.9) The Bona Fide Employee Exemption does not apply to

where the employee will be provided a Defense Service.

Debarred Parties List

- List of individuals denied export privileges under ITAR and

maintained by the State Department. Information can be accessed from

http://www.bis.doc.gov/complianceandenforcement/liststocheck.htm.

Denied Persons List

- A list of persons who have been issued a denial order from the

Commerce Department’s Bureau of Export Administration (BXA). U.S. exporters and third

parties in general are prohibited from dealing with these persons in transactions involving

U.S. items. The list can be accessed from

http://www.bis.doc.gov/complianceandenforcement/liststocheck.htm.

Dual-Use -

Items that have both commercial and military or proliferation applications. While

this term is used informally to describe items that are subject to the EAR, purely commercial

items are also “subject to the EAR” (see §734.2(a) of the EAR). Items with no specific ECCN

are designated as “EAR99.”

Educational Information

– Under the EAR, information taught in course catalog courses and

teaching laboratories associated with these course catalog courses are not export controlled.

(Encryption software with symmetric key length exceeding 64 bits does not meet this

exclusion.) 15 CFR 734.9 Under the ITAR, information or software concerning general

scientific, mathematical or engineering principles commonly taught in universities or

information in the public domain are not subject to export controls. 22 CFR 120.10 –11.

Entity List

– Exports to foreign end-users engaged in proliferation activities are usually

prohibited without a license. These are administered on a case-by-case basis. The list can be

accessed at

Export

- Includes any of the following: 1) actual shipment of any covered goods or items; 2)

the electronic or digital transmission of any covered goods, items or related goods or items;

3) any release or disclosure, including verbal disclosures or visual inspections, of any

controlled technology, software or technical data to any foreign national; or 4) actual use or

application of controlled technology on behalf of or for the benefit of any foreign entity or

person anywhere.

http://www.bis.doc.gov/entities/default.htm

Export Administration Regulations (EAR)

- Regulations promulgated and implemented by

the Department of Commerce that regulate the export of goods, software and related

technology identified on the Commodity Control List (CCL), Title 15 CFR 774,

Supplement 1. The EAR also includes export restrictions, sanctions and embargoes to

specified persons, entities and countries.

Export Control Classification Number (ECCN)

- Identifies the Commerce Control List

classification and related export requirements of commodities, software and technology

subject to the export licensing authority of the Department of Commerce, Bureau of

Industry and Security. All commodities, software and technology not specifically

identified on the CCL are classified as “EAR99.”

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Foreign National

– Under the EAR, means any person who is not a citizen or permanent

resident of the United States. Under the EAR, the term applies to “persons lawfully

admitted for permanent residence in the United States and does not apply to persons who are

protected individuals (i.e. has been admitted as a refugee or granted asylum). The term also

refers to foreign entities.

Foreign Person

- The ITAR uses the term “foreign person” rather than “foreign national” and

it applies to any natural person who is not a lawful permanent resident or who is not a

“protected individual”, and may also include any corporation, business association, partnership

society, trust or any other entity, organization or group that is incorporated to do business in

the United States. This also includes any governmental entity.

Fundamental Research

– Under the EAR and the ITAR, fundamental research means basic

or applied research in science and engineering performed or conducted at an accredited

institution of higher learning in the United States where the resulting information is

ordinarily published and shared broadly in the scientific community. Fundamental research is

distinguished from research that results in information that is restricted for proprietary reasons

or national security reasons (EAR) or pursuant to specific U.S. government access and

dissemination controls (ITAR).

Fundamental Research Exclusions -

EAR provides that university research normally will be

considered as fundamental research unless the university or its researchers accept

personnel access restrictions or restrictions on publication of scientific and technical

information resulting from the project or activity. The EAR specifically permits limited

prepublication reviews by research sponsors to prevent inadvertent divulging of proprietary

information provided to the researcher by the sponsor or to insure that publication will not

compromise any patent rights. The EAR citation is 15 CFR § 734.8.

The ITAR states that university research will not be deemed to qualify as fundamental

research if: (1) the university or its researchers accept any restrictions on publication of

scientific and technical information resulting from the project or activity; or (2) the

research is federally funded and specific access and dissemination controls protecting

information resulting from the research have been accepted by the university or the

researcher. The ITAR citation is 22 CFR § 120.11(8).

Note: Under the EAR and ITAR, even if no publication restriction exists, the fundamental

research exclusion does not apply to the physical export of goods.

Good

- Any article, natural or man-made substance, material, supply, or manufactured

product, including inspection and test equipment, and excluding technology.

International Traffic in Arms Regulations (ITAR)

- 22 CFR Sections 120-130, are the

regulations promulgated and implemented by the Department of State which regulate

defense articles and defense services and related technical data listed on the U.S. Munitions

Control List (USML), 22 CFR § 121. The USML is available at:

http://www.pmddtc.state.gov/regulations_laws/itar_consolidated.html

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Lists to Check –

all transactions with potential export restrictions should be checked

against the published lists of prohibited countries, persons and entities before proceeding. All

of the lists can be accessed from

http://www.bis.doc.gov/complianceandenforcement/liststocheck.htm

OIC

– The UMD Office of Institutional Compliance.

Public Domain

– Under the ITAR, information that is published and that is generally

accessible or available to the public are not export controlled. Examples include: (a) sales at

newsstands and bookstores; (b) subscriptions that are available without restriction to any

individual who desires to obtain or purchase the published information; (c) second class

mailing privileges granted by the U.S. government; (d) libraries open to the public or from

which the public can obtain documents; (e) published patent applications and issued

patents; (f) unlimited distribution at a conference, meeting, seminar, trade show, or

exhibition, generally accessible to the public, in the United States; (g) any public release

after approval by the cognizant U.S. government agency; and (h) fundamental research in

science and engineering at accredited institutions of higher learning in the U.S. where the

resulting information is ordinarily published and shared broadly in the scientific

community. 22 CFR 120.11

Publicly Available

– The EAR uses the term “publicly available” rather than “public

domain.” Under the EAR, information is publicly available when it becomes generally

accessible to the public. In addition to the examples listed above, the EAR specifically

provides that software that is available for general distribution is publicly available (except for

encryption software with symmetric key length exceeding 64 bits). 15 CFR 734.7

Reexport

- An actual shipment or transmission of items subject to export regulations from one

foreign country to another foreign country. For the purposes of the EAR, the export or reexport

of items subject to the EAR that will transit through a country or countries to a new country,

or are intended for reexport to the new country, are deemed to be exports to the new country.

Sanctioned Country –

Even when exclusions to EAR or ITAR apply, U.S. Treasury

Department, Office of Foreign Assets Control may prohibit payment, travel and the

transfer of items, assets, and services of value to sanctioned nations (check the OFAC

website www.treas.gov/ofac

Specially Designated Nationals (SDN)

- Any person who is determined by the U.S.

Secretary of the Treasury to be a specially designated national for any reason under

regulations issued by the Office of Foreign Assets Control. U.S. persons are prohibited from

having transactions with the persons listed in the Specially Designated Nationals List. The

listed is located at

for the latest information about embargoed countries).

http://www.treas.gov/offices/enforcement/ofac/sdn/

Technical Assistance

- Technical assistance may take forms such as instruction, skills

training, working knowledge, consulting services, and may also involve the transfer of

technical data.

Technical Data

- Information required for the design, development, production,

manufacture, assembly, operation, repair, testing, maintenance, or modification of

controlled articles. This includes information in the form of blueprints, drawings, plans,

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instructions, diagrams, and photographs. These may take the form of blueprints, plans,

diagrams, models, formulae, tables, engineering designs and specifications, manuals and

instructions written or recorded on other media or devices such as disk, tape, or read-only

memories. The ITAR definition does not include information concerning general scientific,

mathematical, or engineering principles commonly taught in schools, colleges, and

universities, or information in the public domain, general system descriptions, or basic marketing

information on function or purpose. (ITAR 120.10).

Technology

- Any specific information and know-how (whether in tangible form, such as

models, prototypes, drawings, sketches, diagrams, blueprints, manuals, software, or in

intangible form, such as training or technical services) that is required for the development,

production, or use of a good, but not the good itself. The information takes the form of

technical data or technical assistance. See definition of “

use

” below.

Use

- Technology for operation, installation (including on-site installation), maintenance

(checking), repair, overhaul and refurbishing of a good.

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TRAINING PROGRAM

The training program is a critical component of maintaining compliance with export

control laws. The primary goal of training is to increase awareness of and maintain

compliance with export control laws and trade sanctions. The program will educate the

UMD community of its responsibilities under these laws and the UMD procedures in place

for ensuring compliance. It is especially critical that faculty and administrative staff that

direct or participate in research projects involving export controlled goods, technology or

software participate in training provided through the Office of Institutional Compliance.

The New Faculty Institute identities new faculty and OIC provides export control training

overview at the New Faculty Institute research seminar.

Training Topics

Training includes an overview of the purpose of export controls, how export regulations

apply to different activities, review of definitions and regulations, the importance of

compliance, description of the high risk disciplines, and the types of exclusions, exemptions

and exceptions that commonly apply. In addition, training covers security measures that

should be followed, steps to follow for physical exports, instruction on how to determine the

CCL or USML designation of items, information about applying for a license, when to

suspect export control violations and red flags, internal review procedures, the importance of

training, the importance of utilizing the OIC as a resource, and reporting of suspected

violations.

The following introductory topics will be covered in faculty, staff and student training:

•

Purpose of U.S. export control laws and UMD Export Control Guidelines

•

Regulatory agencies controlling exports

•

What is an Export and What Regulations Apply

•

Deemed Exports and Foreign Nationals Defined

•

U.S. Munitions List and Commerce Control List

•

General Prohibitions on End Use and End Users

•

Screening Customers Using Lists of Denied and Restricted Persons and Countries

•

How to detect suspicious and inconsistent behavior (red flags)

•

Screening for Embargoed Countries

•

Fundamental research and educational information exclusions

•

Examples of common license exceptions

•

Who to contact about questionable transactions

•

Enforcement of violations and severe sanctions and penalties

•

Contact Persons for Further Assistance

•

FAQs; Questions and Answers

Advanced Training Topics for Faculty, Administrative Staff and Students include:

•

Contract language that restricts publication and personnel access

•

Foreign sponsorship of research

•

Physical export of goods and materials

•

Nondisclosure agreements with foreign entities or persons

•

Materials transfer agreements with foreign entities or persons

•

Teaching or training activities that use or implement licensed technology

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Department Training

Special efforts will be taken to ensure that all departments in high risk disciplines such as

Engineering (including Physics), Research with Lasers, Research with Encrypted Software,

Marine Sciences, and Research with Controlled Chemicals, Biological Agents and Toxins

receive training. For example, training may be scheduled during department meetings or

other times which are convenient for those departments.

License Training and Briefings

One-on-one training will be provided by the Director of the OIC to researchers who are

involved in projects confirmed to involve export controlled technology. The type of

training, date, and who was trained is recorded and kept on file in the OIC.

Other Materials

While most training will be classroom style with opportunity for questions and discussion,

additional information may be provided in the form of email notifications, institutional

compliance newsletters and announcements, online training and information, and invited

speakers. Useful materials and forms are available on the OIC website at

http://www.atmc.umassd.edu/institutional_compliance/export.cfm

Training Timelines

Formal training events will be scheduled twice per year. One-on-one and administrative staff

training is scheduled as necessary throughout the year by contacting the Director of OIC. In

addition, export control training events are posted on the website at

http://www.atmc.umassd.edu/institutional_compliance/export.cfm

Training Records

All records of training sessions will be maintained by the OIC for a period of five years. The

records shall include date and place of training, sign-in sheets signed by persons attending, list of

speakers, and the subjects covered.

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REGULATED ITEMS

ITAR Controlled Items

The Department of State Directorate of Defense trade Controls (DDTC) administers export

control of defense items under the International Traffic in Arms Regulations, 22 CFR 120-

130, pursuant to the Arms Export Control Act (AECA). Three terms are used to designate

export controlled ITAR items: “defense articles,” “technical data,” and “defense services.” An

item that also contains any ITAR controlled component is also controlled under the ITAR.

Defense Article means any piece of equipment (or component or part thereof), or

technical data ( as defined below), that is specifically designed, developed,

configured, adapted, or modified for a military, missile, space, satellite, or other

controlled use listed on the USML.

Technical Data means any information which is required for the design,

development, assembly, production, operation, repair, testing, maintenance, or

modification of a defense article. Technical data may include drawings or assembly

instructions, operations and maintenance manuals, and email or telephone

exchanges where such information is discussed. However, technical data does not

include general scientific, mathematical, or engineering principles commonly taught in

universities, information in the public domain, general system descriptions, or basic

marketing information on function or purpose.

Defense Services means providing assistance, including training, to a foreign person in

the United States or abroad in the design, development, engineering, manufacture,

production, or operation of a defense article, as well as providing any related technical

data to foreign persons. Defense services may include informal collaborations,

conversations, or interchanges concerning technical data.

For details about the International Traffic in Arms Regulations, go to the website at:

Definition of Export Under the ITAR

http://www.pmddtc.state.gov/regulations laws/itar official.html

The ITAR defines the term 'export' broadly. The term applies not only to exports of

tangible items from the U.S. but also to transfers of intangibles, such as technology or

information. The ITAR includes the release of controlled technical data to foreign

nationals even in the U.S.

Authorization to Export

Any U.S. person or entity that manufactures, brokers, or exports defense articles or defense

services must secure a license prior to any export. Excluded from these regulations are

activities limited to the creation of unclassified technical data, or the fabrication of defense

articles for experimental or scientific purpose, including research and development. UMD does

not engage in the manufacture of defense articles.

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Items Subject to the EAR

The Department of Commerce Bureau of Industry and Security regulates the export of

commercial products, software and technology under the Export Administration

Regulations (EAR), 15 CFR §§ 730-774. The EAR covers a wider range of products and

technology, the product classification process is highly technical, and most importantly, the

need for a license depends not only on the type of product but on its final destination.

Generally, all items of U.S. origin, or physically located in the U.S. are subject to the EAR.

Foreign manufactured goods are generally exempt from the EAR re-export requirements if

they contain less than a de minimus level of U.S. content by value. The EAR requires a

license for the exportation of a wide range of items with potential 'dual' commercial and

military use, or otherwise of strategic value to the U.S. (but not made to military

specifications). However, only items listed on the Commerce Control List (CCL) require a

license prior to exportation. The items are designated by “ECCNs.” Items not assigned an

ECCN are designated as “EAR 99” and can generally be exported without a license, unless the

export is to an embargoed country, or to a prohibited person or end-use. Items are further

organized into 5 groups as follows:

Commodities

means finished or unfinished goods ranging from high-end

microprocessors, to airplanes, to ball bearings.

Manufacturing Equipment

testing controlled commodities, as well as certain generic machines, such as

computer numerically controlled manufacturing and test equipment.

includes equipment specifically for manufacturing or

Materials

includes certain alloys and chemical compounds.

Software

includes software specifically associated with particular commodities or

manufacturing equipment, as well as any software containing encryption and the

applicable source code.

Technology

good and takes the form of technical data and technical assistance. For some

ECCNs, there may be a distinction between technology for the "use" of a product and

the technology for the "design" or "manufacture" of the product.

means information required for the development, production or use of a

For details about the CCL, go to http://www.access.gpo.gov/bis/ear/ear data.html#ccl.

For the EAR regulations, go to http://www.access.gpo.gov/bis/ear/ear_data.html

Export Control Classification Number (ECCN)

Goods, software and technology on the CCL are primarily commercial in nature not

military. (Items that have military application are covered under ITAR.) The CCL

categorizes the goods and related technology covered into ten topical categories. Items are

further designated by Export Control Classification Numbers (ECCNs). Items not assigned a

specific ECCN fall under a catch-all category called “EAR99.”

- 18 -

The fundamental difference in the EAR and ITAR is the EAR is concerned with “dual use”

items (items designed for potential commercial purposes that can have military

applications) and the ITAR with those that are inherently military in nature. Another

difference is the treatment of fundamental research. In the ITAR, is it subsumed under

“public domain” and in the EAR it is a separate and distinct category. In general, the EAR is

clearer and more specific in its coverage than the ITAR.

In order to know whether you may export a dual use item, first you have to know how it is

designated under the Commerce Control List (CCL) and check for license exceptions.

Second, you have to check the Country Chart. Third, you have to check the proposed end- use.

Fourth, you have to check the proposed end-user. The flow chart that follows shows the steps

to determining whether or not a license is required under the EAR.

In determining the classification of an entire system, you generally consider the nature of

the entire assembled system rather than the classification of individual components (with

the exception of included information technology or encryption software). There are some

helpful interpretations to assist you. See Interpretations 2 and 13 at 15 CFR 770.2. (By

comparison, under the ITAR, a component that contains one single ITAR-controlled item

would make the entire assembled system controlled.)

For step-by-step instructions on how to determine the ECCN of any commodity, software or

technology follow the instructions on the Department of Commerce web page at

http://www.bis.doc.gov/licensing/exportingbasics.htm Also, there is free online training

available from the Department of Commerce at:

http://www.bis.doc.gov/seminarsandtraining/seminar-training.htm

- 19 -

- 20 -

KEY ISSUES IN UNIVERSITY ACTIVITIES

Export regulations require attention to several considerations in a University setting.

Considerations and subsequent actions depend on evaluation of the recipient, the

destination, involvement of controlled technology, and governmental jurisdiction to

determine how the regulations apply and whether a license must be obtained. Most

activities conducted at UMD are likely to qualify for license exclusions for information that is

Publicly Available or in the Public Domain, such as the Educational Information Exclusion

and the Fundamental Research Exclusion. Otherwise an export license may be required to

allow for participation by foreign nationals or for foreign research collaborations. A

helpful tool for analyzing exclusions under the EAR is the Questions and Answers –

Technology and Software Subject to the EAR which is found in Supplement 1 to part 774 of

the EAR or at

Fundamental Research Exclusion (FRE)

http://www.access.gpo.gov/bis/ear/pdf/734.pdf.

The term “fundamental research” means basic or applied research in science and

engineering, the results of which are ordinarily published and shared broadly within the

scientific community.

Specifically, the EAR provides that

Fundamental research is distinguished from proprietary research and

from industrial development, design, production, and product utilization, the results of which

ordinarily are restricted for proprietary or national security reasons. Both the ITAR and EAR

provide that information resulting from fundamental research is not subject to export controls.

This is referred to as the Fundamental Research Exclusion (FRE).

the fundamental research exclusion applies so long as the

university and its researchers do not accept restrictions on publication of scientific and technical

information resulting from the project or activity, or personnel access restrictions

By comparison, the ITAR states that university research will not be deemed to qualify as

fundamental research if: (1) the university or its researchers accept any restrictions on

publication of scientific and technical information resulting from the project or activity; or

(2) the research is federally funded and specific access and dissemination controls protecting

information resulting from the research have been accepted by the university or the

researcher. The ITAR citation is 22 CFR § 120.11(8).

. The EAR

specifically permits customary prepublication reviews by research sponsors to prevent

inadvertent divulging of proprietary information provided to the researcher by the sponsor or to

insure that publication will not compromise any patent rights. The EAR citation is 15 CFR §

734.8. Access and dissemination controls in government contracts with national security

agencies normally do not trigger a license requirement as long as the university otherwise

follows any national security controls imposed in the contract (15 CFR 734.11(a)).

The Office of Research Administration (ORA) carefully reviews proposed research projects

to ensure the scope of the work qualifies for the fundamental research exclusion. If further

reviews are needed, OIC works to complete the export control analysis, with the technical

assistance of the PI.

- 21 -

Verbal or written 'side deals' between a PI and sponsor to forego publication will invalidate the

FRE and violate university policies that require that research shall be conducted openly and

without prohibitions on the publication and dissemination of the results.

Under the EAR and ITAR, even if no publication restrictions or personnel

restrictions apply, the fundamental research exclusion does not apply to the

physical

The use of sponsor or third-party trade secrets or other proprietary information in a

research project which are subject to a confidentiality obligation will continue to be

subject to export controls even though the research and the research results are covered

by FRE. The EAR citation is 15 CFR § 734.8(b)(4). See illustration on next page.

shipment of goods.

A deemed export may occur if information, which is not otherwise publicly

available, about the development, production or use of controlled articles is released to

a foreign national. “Use” in this context means information about the operation,

installation, maintenance (checking), repair, overhaul

and

refurbishing of a

controlled article. EAR Part 772. All five aspects of use must be present to cause an

export to occur. When instruction on use is based on a publicly available manual, the

instruction is considered publicly available and not subject to the EAR.

Educational Information Exclusion

One of the most important exclusions from the EAR and ITAR export regulations that

applies to universities is the exclusion for educational information. Under the EAR,

information and software taught in course catalog courses and teaching laboratories

associated with these course catalog courses are not export controlled. (Encryption

software with symmetric key length exceeding 64 bits does not meet this exclusion.) 15 CFR

734.9

Under the ITAR, information or software concerning general scientific, mathematical or

engineering principles commonly taught in universities or information in the public domain are

not subject to export controls. 22 CFR 120.10–11.

Publicly Available Information / Public Domain

All information that is publicly known is also not subject to export controls (with the

exception of encryption software with symmetric key length exceeding 64 bits). Under the

ITAR, information that is published and that is generally accessible or available to the

public are said to be in the “public domain” and not export controlled. Examples include:

(a) sales at newsstands and bookstores; (b) subscriptions that are available without

restriction to any individual who desires to obtain or purchase the published

information; (c) second class mailing privileges granted by the U.S. government; (d)

libraries open to the public or from which the public can obtain documents; (e)

published patent applications and issued patents; (f) unlimited distribution at a

conference, meeting, seminar, trade show, or exhibition, generally accessible to the

public, in the United States; (g) any public release after approval by the cognizant U.S.

- 22 -

Universe of Research

Adapted from Alex Lopes, Department of Commerce

OUTPUT

Results of research published:

(e.g., Fundamental Research)

(Not Subject to the EAR)

Results of research withheld

from publication

(Subject to the EAR)

Publicly available

technologies

Preexisting export controlled

proprietary technology

(Subject to the EAR)

INPUT

(Not Subject to the EAR)

- 23 -

government agency; and (h) fundamental research in science and engineering at

accredited institutions of higher learning in the U.S. where the resulting information is

ordinarily published and shared broadly in the scientific community. 22 CFR 120.11

The EAR uses the term “publicly available” rather than “public domain.” Under the EAR,

information is publicly available when it becomes generally accessible to the public. In

addition to the examples listed above, the EAR specifically provides that software that is

available for general distribution is publicly available (except for encryption software with

symmetric key length exceeding 64 bits). 15 CFR 734.7

Physical Exports

If a physical export is necessary, then implement the following sequential analysis. First,

begin with the jurisdiction determination; then, proceed to the classification process. The

researcher is typically the best person to assist with the determination of the Commerce

Department ECCN classification of the item. An alphabetical guide to the Commerce

Control List can be found at www.access.gpo.gov/bis/ear/pdf/indexccl.pdf to help with the

classification.

Using the ECCN, it must be determined whether an export license is required. You are also

required to know your customer and evaluate how the export will be used. The lists of barred

or prohibited countries, persons and entities must be checked in the vetting process. For

shipment of items subject to the EAR, you must check whether General Prohibitions 4-10

apply. (See: EAR Part 736). Watch for ‘red flags.’ These concerns must be addressed

satisfactorily or the shipment should be aborted. In some instances, license exceptions may

apply. The OIC can help make these determinations. The process may include completing a

Request to Ship Materials Out of the U.S. and having an End User Certification Form

completed by the end user.

An AES filing with the U.S. Census Bureau must be filed for exports requiring a license and

all shipments of goods having a value greater than $2,500. The filing must indicate either the

applicable ECCN or that a license exception applies. Information is available here:

http://www.bis.doc.gov/exportlicensingqanda.htm. Contact the OIC for assistance with this

process.

Deemed Exports

While exports are commonly associated with the physical shipment of materials across a

U.S. border, export controls are much broader. They also include the transfer of

technology or software, technical data, or performance of defense services to foreign

nationals even when the transfer takes place within the U.S. This transfer is "deemed" to be

an export. The issue of deemed exports is particularly relevant for university environments

where students and faculty from every corner of the globe engage in teaching and research

activities together. In many instances, the requirements of the export control laws can be

appropriately satisfied through reliance on available exclusions from export controls, such as

exclusions for educational information, and exclusions for information that is publicly

available or in the public domain, including the fundamental research exclusion. UMD is

committed to ensuring these exclusions are relied upon and satisfied. For example, with

- 24 -

respect to fundamental research, it is the policy of UMD that research shall be conducted

openly and without prohibitions on the publication and dissemination of the results.

A “deemed export” under the ITAR involves the export within the United States to a

foreign person of technical data, in other words information or software, required for the

development, production or use of defense articles included in the USML. Technical data

does not include information or software concerning general scientific, mathematical, or

engineering principles commonly taught in universities, or information in the public

domain, or general system descriptions, or basic marketing information on function or

purpose. A deemed export under ITAR also includes performing a defense service on

behalf of a foreign person.

A “deemed export” under the EAR involves the export within the United States to a foreign

national of technology or software required for the development, production or use of a good.

Importantly, information about “use” must include

all

of the following to constitute a deemed

export: operation, installation, maintenance (checking), repair, overhaul

and

refurbishing.

EAR Part 772.

If the foreign national has access only to the technology that is necessary to

operate the export controlled equipment, a release of “use” technology has not occurred.

Further, the deemed export rule does not regulate the mere operation of controlled equipment.

More information is available here:

http://www.bis.doc.gov/deemedexports/deemedexportssupplementqa.html

Deemed exports could occur through such means as a demonstration, oral briefing, or plant

visit, as well as the electronic transmission of non-public information or software. Specific

reference must be made to the relevant ECCN because what constitutes “technology” can vary.

For example, in the case of select agents, “technology” includes information about disposal of

the materials under ECCN 1E351. Technology and software that are not subject to the EAR

would be excluded from export regulation, such as publicly available technology.

Supercomputers

A common deemed export question relates to access by persons in the UMD community to

supercomputers (designated by their adjusted peak performance or APP under Category 4 of

the CCL). This is an example where mere access to or operation of a supercomputer does not

constitute a deemed export. Faculty and technicians involved in the procurement,

development or operation of such supercomputers are responsible for their proper management

and supervision and should know what restrictions apply.

Encryption Software and Technology

Faculty and students who work with encryption software and technology have a particularly

complex compliance framework to maneuver within. As referenced above, encryption

software (as well as associated technology) with symmetric key length exceeding 64 bits

generally do not satisfy the exclusions on which universities ordinarily rely, including the

educational information exclusion or the publicly available or public domain exclusion.

However, there are recognized Department of Commerce clarifications and specific license

exceptions that do apply.

- 25 -

As part of the Federal government’s policy efforts to promote data security through

encryption protections imbedded in mass market software and hardware products, it is

permissible, while in the U.S. for non-U.S. persons to use any type of mass market encryption

software products (covered under 5D992) and encryption hardware covered under 5A002 and

5B002. The Department of Commerce makes this clear in its policy statements. See, for

example, the Department of Commerce's BIS encryption export policy located at

http://www.bis.doc.gov/encryption/encfaqs6_17_02.html and the BIS guidance in Questions

17 of the following FAQs:

http://www.bis.doc.gov/deemedexports/deemedexportsfaqs.html#17

Also, under License Exception ENC, non-U.S. persons who are employees, contractors or

interns employed

at UMD facilities can use encryption software (covered by ECCNs 5D002

and 5D992) with no license or prior government review required. This includes work

developing or producing new products. 15 CFR 740.17(a)(2). In addition, special

exemptions apply to certain kinds of encrypted medical end-use software and to temporary

physical exports of tools of trade.

With respect to the physical shipments of software, under the EAR License Exception TSU,

encryption source code or object code (covered by 5D002) may be exported without a license

except to Iran, Cuba, North Korea, Syria or Sudan. 15 CFR 740.13. However, determining

the applicability of the TSU exception is complex and you should contact OIC for help with

the analysis.

Special exemptions apply to teaching encryption techniques. Encryption technology

that is

publicly available, including technology covered by ECCNs 5E002 and 5E992, are not

subject to the EAR. Therefore, publicly known encryption techniques, algorithms and

schemes may be shared and taught to non-U.S. persons within the U.S. (sharing of encryption

software is a separate analysis). 15 CFR 734.3(b)(3). However, providing encryption

technology controlled under 5E002 to students may require a license if it is provided with the

specific intent to aid in the development of commodities or software controlled under 5A002

or 5D002. See License Requirement Note to ECCN 5E002.

Restricted Party Screening Lists

Various U.S. Government agencies maintain a number of lists of individuals or entities

barred or otherwise restricted from entering into certain types of export, trade and financial

transactions with U.S. persons. All activities must be screened using these lists to ensure that

UMD does not engage in a transaction with a barred entity or person.

EAR Denied Persons List

. These are individuals and entities that have had their

export privileges revoked or suspended by BIS. The list is at

http://www.bis.doc.gov/dpl/Default.shtm

EAR Entity List

. These are entities identified as being involved in proliferation of

missile technology, weapons of mass destruction, and related technologies. The

Entity List is at http://www.bis.doc.gov/Entities/Default.htm.

- 26 -

Specially Designated Nationals and Blocked Persons List (SDN List)

Maintained by OFAC, this is a list of barred terrorists, drug traffickers, and persons and

entities associated with embargoed regimes. Generally, all transactions with such

persons are barred. The list is at

List of Debarred Parties (Excluded Parties List System)

. The Department of State

bars certain persons and entities from engaging in the export or re-export of items

subject to the USML. The list is at

http://www.treas.gov/offices/enforcement/ofac/sdn/index.shtml.

https://www.epls.gov/

Unverified List

. These are foreign persons and entities for which Department of

Commerce has been unable to verify the nature of their operations. While

transactions with these entities are not barred, special due diligence is required. It is

available at

Persons Named in General Orders (Part 736, Supp. No. 1).

General Order No. 2

contains the provisions of the U.S. embargo on Syria and related matters. A link to the

General Orders is available at

http://www.bis.doc.gov/Enforcement/UnverifiedList/unverifiedparties.html

Excluded Parties List

. These are entities that have been barred from contracting with

U.S. Government agencies. In general, entities cannot contract with such parties in

fulfilling a U.S. Government contract, either as prime or sub-contractor. The EPLS is

available at

http://www.access.gpo.gov/bis/ear/pdf/736.pdf

http://www.epls.gov/

Nonproliferation Sanctions

maintained by the Department of State. These lists are

available at

http://www.state.gov/t/isn/c15231.htm

Supplier Classification of Items

When, in the course of research activities, UMD receives materials from a sponsor and the PI

cannot determine whether export controls apply, the OIC will contact the sponsor for export

jurisdiction and classification information. If necessary, the sponsoring company is asked to

complete a Supplier Classification Request Form to identify the types of materials involved

and whether anything is export controlled.

Immigration Sponsor Letters

For Principal Investigators who want to issue a sponsor letter on behalf of a foreign person, the

Dean of the College must approve any letters before they are sent. If the letter involves a

high risk discipline or anyone from Country Groups D or E, the letter must be forwarded to

the Director of Institutional Compliance for vetting and approval. The Director will consult

with the Dean, as needed, in making a determination. The high risk disciplines for UMD

are: Engineering (including Physics), Marine Sciences, Research with Lasers, Research with

Encrypted Software, and Research with Controlled Chemicals, Biological Agents and Toxins

The list of country groups are located in Suppl. 1 to Part 740 which can be found at the EAR

regulations database at: http://www.access.gpo.gov/bis/ear/ear data.html. The letter should

be accompanied by the foreign person’s resume and a copy of his/her recent publication

abstracts. The PI is responsible to document activities of all sponsored foreign visitors and be

able to provide records to verify such activities upon request.

- 27 -

International Travel

When traveling abroad, UMD researchers should be familiar with export control

regulations. Researchers need to make sure that any information discussed or items taken out

of the U.S. are either not controlled, or if controlled, the proper licenses are in place.

Researchers, as individuals, and UMD can be held liable for improperly transferring

controlled technology. Thus, it is important to review and understand the federal

requirements. Prior to discussing technology or making a presentation when traveling,

verify that the technology, information, and/or commodity qualifies for an exclusion.

Please note that the exclusions do not apply when controlled equipment or biological

samples are hand-carried or shipped abroad. Biological samples should never be

transferred without prior authorization.

Be aware that more than one license may be required for some travel. For example, travel to

an OFAC embargoed country would require a license issued by the Treasury Department.

An EAR license may be required as well depending on whether an export of controlled

technology (information) is anticipated.

Exclusions that are relevant for researchers when traveling include:

•

Published Information and Software – information that is generally accessible to the

public through publication in books or periodicals, or information presented in the

United States at a conference, meeting, seminar, trade show or other open gathering

(members of the general public are eligible to attend and attendees are permitted to take

notes) is considered to be in the public domain. Software available from a web site and

accessible to the public is also considered to be publicly available. (Encryption

software with symmetric key length exceeding 64 bits does not meet this exclusion.)

•

Educational Information – Course material taught in U.S. universities in course

catalog classes and information that is in the public domain fall within the

educational information exception. (Encryption software with symmetric key

length exceeding 64 bits does not meet this exclusion.)

Guidance for international travel is posted on the U.S. State Department website at

http://travel.state.gov/travel/cis_pa_tw/cis_pa_tw_1168.html

All travel for UMD-related activities requires processing of the Travel Authorization Form prior

to travel. The form

should be submitted for approval at least 10 business days before travel

begins.

All foreign travel requires prior authorization by the respective Dean.

Completion of

the Travel Authorization Form in advance of foreign travel is the only means for qualifying for

international travel insurance offered by UMD at no cost to you.

The Travel Authorization

Forms can be found at the end of these Guidelines. UMD Travel Guidelines are posted at:

http://www.umassd.edu/policies/activepolicylist/businessandfinanceoperations/employeetr

avelpolicyguidelines/

Travel to a country designated by the EAR as a Country Group D or E country must be

vetted and cleared by the OIC prior to travel. The OIC clearance form is returned to the PI and

Travel Accountant for final approval of the travel. The list of country groups are located in

Suppl. 1 to Part 740 which can be found at the EAR regulations database at:

http://www.access.gpo.gov/bis/ear/ear data.html

- 28 -

OFAC publishes travel guidelines for securing licenses for travel to embargoed countries. A

useful guide for understanding the OFAC sanctions against Cuba is located at:

http://www.treas.gov/offices/enforcement/ofac/programs/cuba/cuba.pdf

Travel guidelines for travel to Cuba are available at:

http://www.treasury.gov/offices/enforcement/ofac/programs/cuba/cuba_tr_app.pdf

OFAC also provides lists of approved companies to arrange for travel licenses and flights to

embargoed countries. Authorized providers for travel to Cuba are available at

http://www.treasury.gov/offices/enforcement/ofac/programs/cuba/cuba_tsp.pdf

Researchers

For general travel with UMD-issued laptops, the PI should complete a Request for

Temporary Export of Equipment or UMD Laptop to the OIC. The form has checkboxes for the

PI to verify that no controlled or sensitive information is contained on the laptop. The OIC

will issue a letter stating the approximate value of the computer and that no controlled or

sensitive information is on it to provide to any customs agent should the PI be questioned

during international travel.

Special care should be taken of computers that contain non-commercial, special purpose or

certain encryption software. These items could be subject to seizure or customs duties and

could pose a threat if stolen. See discussion above under “Encryption Technology.” If you need

to travel with such items, an export review should be performed and if necessary, a license

obtained prior to travel, and it should be completed well ahead of expected travel dates. Before

initiating travel, the following questions should be considered to evaluate whether export

regulations apply:

Do you plan to take any information or technology that is controlled?

Do you plan to travel to an embargoed destination?

Are you taking any biological materials? Identify the material(s).

Are you taking any equipment with you other than those identified as Tools of the

Trade under the export regulations?

If the answer to any of these questions is 'yes', contact the OIC to determine how to

proceed.

Export Control Checklist

The Export Control Checklist is used by PIs to self-identify a proposed project that may

involve exports and is therefore subject to export control regulations. Researchers need to be

aware of potential export control issues so they can recognize and bring it to the attention

of the appropriate individuals at UMD. It is critical for the researcher to provide input in the

technical evaluation as they have control over the scope of the research project and understand

the technology at issue. The checklist is used by ORA and the OIC at the grant and contract

proposal stage to help identify whether export controls apply.

- 29 -

Technology Control Plans

The purpose of a Technology Control Plan (TCP) is to outline procedures used by UMD for the

protection of information and material identified under applicable federal directives governing

the export of critical technology that may be received or developed in the course of

performance of activities that are subject to export controls. Technology Control Plans must

be developed and submitted for review and approval for any research that involves export

controlled items, technology or data. The purpose is to identify authorized personnel and

develop a physical and IT security plan to protect and control research information from

access by unauthorized persons. Once the TCP is in effect, no personnel can be added to that

project or facility without the prior approval of the OIC. The development of the TCP is a

mandatory precursor to an application for a deemed export license or technical assistance

agreement. The TCP will also establish what controls will continue upon completion of the

project. Once a PI has a TCP in place for his/her office or laboratory, all immigration sponsor

letters and all foreign visitors invited by that PI must be screened by the OIC.

Identification, Receipt and Tracking of ITAR Controlled Items

A TCP is also required as a means for tracking and monitoring compliance when projects

involving ITAR controlled items, including technical data, are identified. The Director of

the OIC is responsible for oversight and licensing, including technical assistance

agreements, of all projects in which defense articles are manufactured. This would include

projects involving chemical or biological agents covered under

USML Category XIV.

Any

such TCP for ITAR controlled items MUST bar access by all foreign persons, as there is

no country-by-country analysis as in the EAR regulatory framework. UMD has a policy

against acceptance of projects involving actual receipt of defense articles. There are no

projects currently at UMD which involve the manufacture or export of defense articles.

Screening the Customer and Restricted/Prohibited Exports and Transfers

As an educational and research institution, there may be numerous types of customers that may

require screening. For example, sponsors, vendors, visitors and end users are screened

depending on the nature of the activity. Attus Watchdog Pro is the software used for

screening against all lists of proscribed countries and entities.

Before new sponsors are accepted into the sponsor PeopleSoft database, ORA personnel forward

sponsor information to OIC for screening with ATTUS Watchdog Pro to screen proposed

sponsors on the lists of proscribed countries and ineligible parties. The sponsor list is screened

each calendar quarter to ensure sponsors remain eligible for transactions. Vendors are

screened with ATTUS Watchdog Pro for approval before being entered by the Purchasing

Department into the PeopleSoft system, which allows purchases to be made. In addition,

vendors are screened at the time any payment is about to be made.

International students, faculty and visitors must report to the International Students and Scholars

Office (ISSO) upon arrival at UMD. ISSO must request that the student present original visa

and passport documents and make copies for the student's record and must process the visitor

through the Department of Homeland Security’s SEVIS database. UMD assumes that

students holding valid U.S. visas have been cleared by the U.S. Citizenship and Immigration

Services (USCIS).

- 30 -

Visiting scholars from foreign countries are provided sponsor letters which must be approved by

the College Dean to support their visa application. Proposed visitors from Country Group D and

E countries and visitors to departments within the high risk disciplines are screened by OIC

before issuance of the sponsor letters.

For all physical exports reviewed by OIC, end users are identified and screened to evaluate

whether a license is required or any exceptions may apply.

Large Equipment Purchases

In the procurement process, the Purchasing Department asks the vendor to provide the ECCN or

USML category, if known, for equipment purchases above $75,000. This information, if

received, is communicated to the PI or manager initiating the procurement for record-keeping

and ensuring appropriate use and control of the purchased equipment.

- 31 -

LICENSING INFORMATION

No matter how 'benign' an item may appear, it still may require a license to export or

release to foreign nations. License requirements apply particularly to items controlled by

multilateral export control regimes. In addition, some destinations and persons (individuals or

groups) are subject to comprehensive export controls, including controls on all manner of

consumer products.

A license may also be needed to "re-export" an item that was produced or originated in the

United States. A "re-export" is the shipment or transmission of an item subject to the EAR

from one foreign country to another foreign country. A re-export also occurs when there is

"release" of technology or software (source code) that is subject to the EAR in one foreign

country to a national of another foreign country.

The Commerce Department is responsible for licensing dual use items. The regulations on the

export of goods and related technology are identified on the Commodity Control List (CCL),

Title 15 CFR 774, Supplement 1. (The State Department is responsible for licensing items

with military applications.)

The following general questions can be used to help determine whether an activity may

require a license:

Is the person a U.S. Citizen or permanent resident (issued a green card)?

Is the information already published (for example on the Internet or in public libraries)?

Is it educational information covered in a course catalog course?

Is the technology disclosed in a published patent application or an issued patent?

Is the research considered fundamental research that will be published?

What is the jurisdiction and classification of the product – is it EAR 99, or something else?

Does a license exclusion or exemption apply?

If none of the above apply, a license may be required.

If an activity is controlled under the export regulations, then a license or other approval is

needed from the respective oversight agency unless an exemption or exception applies.

Examples of situations where a license may be required include:

•

research that involves defense, military, weapons, or space technologies

•

export of a commodity or good outside of the U.S.

•

attending a conference where registration is limited to U.S. citizens

•

attending a conference outside of the United States

•

activities where export control exceptions do not apply

•

transfer of technical data about a controlled technology to a foreign national in or

outside of the U.S.

•

providing anything of value to someone from a sanctioned country, on the entity list,

denied persons list, debarred (or excluded) parties list or any other restricted list.

When exclusions or exceptions do

not

apply (or if the transaction involves dealings with a

sanctioned entity or country), then a license must be obtained for any deemed export,

export, or re-export

prior

to the transfer of any information.

- 32 -

The following information is then needed to determine whether the U.S. origin product

requires a license:

Export Control Classification Number (ECCN). Certain items, notably those controlled by

multilateral export control regimes, are on the Commerce Control List (CCL) (part 774 of the

EAR) and are included under a specific ECCN. The ECCN in the CCL will also tell you the

reason(s) for control. An item can be 'self-classified' with justification or BIS can also assist

with classification when necessary. Contact the Director of Institutional Compliance for

assistance. Items not listed on the CCL are designated as EAR99 items and generally can be

exported without a license, unless the export is to an embargoed country, or to a prohibited

person or end-use.

The ultimate destination of the item. The reason(s) for control listed in ECCNs on the

CCL (part 774 of the EAR) needs to be matched with the country of ultimate destination in the

Country Chart (part 738 of the EAR). The reason(s) for control, when used in conjunction

with the Country Chart, will help to determine if a license is required to the ultimate

destination. If it is determined that your export transaction requires a license, review the

EAR to determine if any License Exceptions are available (part 740 of the EAR).

The end-user and end-use for the item. Even if determined that a license is not required

based on the ultimate destination (or a license is required but a License Exception would

generally apply), a license may be required because of the specific end-use or end-user. These

are referred to under the regulations as the “General Prohibitions” and are found at Part 736

of the EAR. There are certain special restrictions that apply to persons (or entities)

identified in the EAR, as well as to persons who are involved in weapons proliferation

activities. In most instances, a license is required to persons identified in part 744 of the EAR

for the export or re-export of all items subject to the EAR (i.e., all items on the CCL and all

items classified as EAR99). There are certain end-uses that are prohibited. An end-user

certification form may need to be completed by the end user to assist in the determination

process.

The Director of the Office of Institutional Compliance is the UMD person approved to

submit jurisdiction and classification requests as well as license applications to the Department

of Commerce and Department of State. The Director will consult with

Environmental

Health and Safety with respect to a

ny TCPs or license applications involving controlled

chemicals or biological materials.

- 33 -

ROLES AND RESPONSIBILITIES

In a University setting, it is necessary to coordinate export controls between departments as

well as between academic and administrative sides of the institution so the program may be

integrated fully across all levels of the institution. The processes should be clearly outlined so

each department understands their responsibilities, information is forwarded to the

appropriate party, and the necessary checks are completed and supporting documentation is on

file. The UMD reporting structure is provided below for those areas involved in export control

compliance and for scenarios expected to occur at UMD. Specific procedures for each

department are outlined in a separate document titled the “Export Control Compliance

Program Standard Operating Procedures.”

Export Control Compliance Organizational Structure

Institutional Commitment to Compliance Oversight

Compliance is a matter for top management attention and needs adequate resources for full

implementation. The Compliance Oversight Committee is charged with development and

oversight of the UMD export control compliance program. The Committee's purpose is to

also ensure that UMD has the resources in place to assure compliance with export control

and trade sanctions laws and regulations. The members of the Oversight Committee are

knowledgeable about the EAR, Arms Export Control Act (AECA), ITAR and OFAC laws and

regulations. As the leaders of each of their respective offices and functions, they oversee

the implementation of the export control compliance program, these guidelines and the

operating procedures in their respective departments and offices.

Chancellor

Vice Chancellor for Administrative &

Fiscal Services

Provost

Assistant Chancellor Institutional

Research & Assessment

Assistant Vice Chancellor for

Research Development

Associate Vice Chancellor Financial

Services

Associate Vice Chancellor

Administrative Services

Human Resources

CITS

Public Safety

Environmental Health and Safety

Office of Research Administration

Office of Institutional Compliance

CVIP

ATMC

IRB

IACUC

IBC

Export Controls

Associate Provost Undergraduate

Programs

Associate Provost

Graduate Programs

Deans

Director of Institutional Research

Director of International Programs

Office

Chairs

Faculty

Career Services

Admissions

Enrollment

Financial Aid

Associate Vice Chancellor for

Student Affairs

ISSO

- 34 -

Compliance Oversight Committee consists of the Provost, Vice Chancellor for

Administration and Fiscal, Vice Chancellor for Research Development, Director of the

ORA, Director of ISSO, Office of General Counsel representative, and Director of OIC.

This committee is responsible for administrative coordination and oversight of export

control matters, including developing and implementing the export compliance program,

including these guidelines and the Export Control Compliance Program Standard Operating

Procedures.

The Provost's Office works with the vice chancellors, vice provosts, and deans to ensure

compliance. Announcements are issued from the Provost and are posted under Export

Controls at

http://www.atmc.umassd.edu/institutional_compliance/export.cfm.

The Associate Vice Chancellor for Research Development reports to the Provost and

Chancellor and is responsible for management of the Office of Research Administration

(ORA). The Associate Vice Chancellor for Research Development is designated as an

empowered official for export license applications and approves acceptance of any

project that involves export restrictions.

The Office of Institutional Compliance (OIC)

The OIC assists the Office of Research Administration (ORA) with the vetting of proposed

projects, including sponsored research agreements and research services agreements, with

the PI and proposed sponsors. The OIC is responsible for screening proposed activities with

potentially proscribed countries or ineligible parties, monitoring compliance with TCPs, and

screening international travel and visits by foreign nationals. The OIC maintains copies of

all export control documents including license applications, policies, forms and guidelines,

memoranda, notes, screens, correspondence, contracts, invoices and other financial records

related to export controls, shipping documents, and records submitted to OIC for vetting and

approval.

is the central office with primary

responsibility for compliance functions, including export control compliance and is

responsible for assisting with developing and implementing the export compliance

program. It is lead by the Director of OIC. The Director works with the faculty, administrative

staff and students to meet export control regulations, communicates about changes in

regulations, maintains relevant records for all export control training and export activities,

and provides support for license applications. OIC conducts outreach, education, training

and advising of members of the UMD community to help ensure export control compliance.

The Director of OIC is an empowered official for export license applications and is

responsible for overseeing the annual review and update of the UMD Export Control

Guidelines and the Export Control Compliance Program Standard Operating Procedures

(SOPs), conducting periodic audits, and assisting with determination of ECCNs.

Office of Research Administration (ORA) is responsible for all extramural proposal

submissions, accepts and administers grant awards, and negotiates contracts and other

research-related agreements on behalf of the University. It reports to the Associate Vice

Chancellor for Research Development. It is lead by the ORA director, responsible for pre-

award and post-award activities. The ORA reviews all research contracts for terms or

- 35 -

provisions that might restrict access to or publication of research and technical data, set limits

on personnel, or otherwise render inapplicable the exclusion for fundamental research or

publicly available information. For the same reason, ORA also examines the nature of the work

to determine whether it relies on use of third-party trade secrets or proprietary information that

would prevent publication of the research results. Further, UMD policy on the free

dissemination of research results prohibits the acceptance of contracts or grants with

publication or dissemination restrictions.

Any proposed contract, grant, or award found by ORA to contain these restrictions is referred

to OIC for analysis and ORA contacts the sponsor to attempt to negotiate it out. PIs are

requested to complete an export control review form or checklist to assist OIC in making

an export control assessment. If the restrictions cannot be negotiated out, it is the

responsibility of the Associate Vice Chancellor for Research Development to consider

whether there is a means for accepting the contract and its potential impact on

dissemination of the resulting research results and academic progress of students.

All proposed research projects with foreign sponsors or which otherwise require physical

exports are referred to OIC for the same analysis, review and approval, as well as for end user

screens and licenses.

Research services agreements in many instances do not meet the fundamental research

exclusion because they are typically specific projects conducted for companies with no

intent to publish the results. Many of these projects, however, rely on the use of publicly

available techniques and processes that are not export controlled. Research service

agreements are submitted to ORA with a statement of work and a purchase order. If there is

any question as to the nature of the work and whether it is export controlled, ORA sends the

project to OIC for review.

Before new sponsors are accepted into the ORA database, ORA personnel forward sponsor

information to OIC for screening with ATTUS Watchdog Pro to screen the proposed sponsors

on the lists of proscribed countries and ineligible parties, using ATTUS Watchdog Pro. This

same process is used each calendar quarter to screen the entire list of sponsors using ATTUS

Watchdog Pro.

Environmental Health and Safety (EHS)

is under the direction of the Assistant Vice

Chancellor for Facilities. EHS has a robust and comprehensive laboratory safety and

compliance program. EHS

maintains a database of faculty and staff that work with

biological agents, chemicals and other hazardous materials. EHS conducts periodic training

of persons with access to laboratories about the proper handling, disposal, security and

shipping of these materials, including export control awareness training. Also, no persons

are allowed to use UMD procards to purchase chemicals and all chemical purchases and

disposal is subject to EHS review and approval. Chemicals and biological agents are subject

to many legal requirements which must be complied with. In fact, most of these materials

are classified as dual use under the CCL. As a result, shipping training and other training

sessions include discussion of export controls. EHS is available to assist members of the

UMD community to comply with these laws and regulations.

- 36 -

Institutional Biosafety Committee (IBC) is a review body that oversees activities involving

laboratory use of potentially hazardous biological agents. UMD is committed to ensuring the

safe handling, storage and disposal of potentially harmful biohazardous materials for research

or instructional projects. The Director of the OIC oversees and coordinates the work of the

IBC. Many of these materials are classified as dual use under the CCL. IBC training

includes information about export controls.

Human Resources is under the direction of the Vice Chancellor for Administrative and

Fiscal Services. Human Resources notifies the OIC of all new hires by department.

Human Resources is authorized to work with OIC to provide citizenship and nationality

information to the OIC when needed to authorize personnel to work on projects. OIC is

authorized to have access to HR personnel files to support applications for security

clearances.

International Student and Scholar Office (ISSO) is under the direction of the Assistant Vice

Chancellor for Student Affairs and is responsible to advise on compliance with immigration

regulations for students, exchange visitors, and foreign national visiting faculty and staff.

ISSO is responsible for processing immigration sponsor letters for proposed foreign

visitors to departments. Unless accompanied by an export clearance form from OIC, before

processing a visa application involving a person from a Country Group D or E country or

submitted by a PI working within a high risk discipline, ISSO will refer the matter to the

Director of OIC for review and approval and discussion with the PI before ISSO can issue

the sponsor letter. Then, OIC will send the export clearance to the ISSO and the faculty

member, once OIC review is complete. This process applies to all sponsor letters for a PI

working on a project subject to a TCP.

Special Assistant to International Partnerships

•

legal name (as shown on legal credentials, e.g., passport, license, diploma)

is under the direction of the Provost and helps to

coordinate speakers and other temporary visits as part of the UMD international relations

activities (short of activities requiring a sponsor letter or visa application). Before their arrival at

UMD, the following information will be provided to the OIC for vetting and approval to bring

visitors from country group D or E countries to UMD by means of the

Short-term

International Visit Request Form

•

physical address (no post office boxes) and country

•

date of the visit and location (name of PI, department or center)

•

purpose of the visit with a complete description of activities to be conducted at

UMD

All visitors who may receive payment for speaker fees or any services must be

screened by Accounts Payable before any payment can be authorized.

Purchasing/Accounts Payable is under the direction of the Vice Chancellor of Administrative

and Fiscal Services and is responsible for ensuring that vendors are screened and approved

before being entered into the system that allows purchases to be made. Vendors are forwarded

to the Amherst Campus for entry into PeopleSoft and are checked using WatchDog Pro.

The Purchasing Department also secures letters of engagement for all freight forwarders

and tracks the ECCNs of large equipment purchases. They consult with OIC if there are any

- 37 -

unusual export control provisions or other “red flags” in any equipment purchase or lease

agreement.

Travel is under the direction of the Vice Chancellor for Administrative and Fiscal Services and

is responsible for reviewing and ensuring compliance for all international travel. Any

transactions that are questionable are forwarded to the OIC for review and vetting. They

handle travel authorizations for all domestic and international travel. For international

travel to any country group D or E country, Travel Forms A and B are forwarded to the

OIC for vetting and approval. OIC then issues an Export Compliance Clearance Form to the

traveler and travel accountant. Any restrictions are noted on the clearance form.

Shipping & Receiving is under the direction of the Vice Chancellor for Administrative and

Fiscal Services. All shipments involving chemical or biological materials are the

responsibility of EHS, with vetting and approval by OIC with respect to international

shipments. Inquiries about international shipments can be referred to OIC for assistance. An

Export Compliance Clearance Form will be sent to document the specifics about the

transaction if OIC assists with the shipment. For any items that require an Automated

Export System (AES) Direct filing, an approved freight forwarder should be used for the

export.

Information Technology is under the direction of the Assistant Vice Chancellor for Computer

and Information Technology Services and provides information services and technology support

for all UMD employees and students, including computing services, connectivity and

information security. Information Technology oversees all data security, electronic mail and

computer policies and helps OIC to develop and implement Technology Control Plans. In

addition, it is responsible for developing and maintaining an effective information technology

security plan for UMD.

Public Safety the Compliance Oversight Committee consults with campus police and, as needed,

engages the campus police in any investigation it may undertake regarding a possible violation or

suspected security breach or theft.

Commercial Ventures and Intellectual Property

(CVIP) is under the direction of the

Associate Vice Chancellor for Research Development and is responsible for assisting in

review of invention disclosures and determining the applicability of its transfer to

commercial applications, as well as reviewing, under protection of non-disclosure

agreements third party proprietary technologies. To prevent deemed exports, no foreign

persons or foreign nationals shall be employed or work as students or interns in CVIP.

From time to time, CVIP receives a request to handle a materials transfer agreement for

receipt or transfer of materials to a foreign person, as well as confidentiality agreements

with non-standard export control provisions or having other “red flags”. CVIP refers these

requests to the OIC for export control review and approval.

Deans; Center Directors and Department Heads provide oversight of their respective

departments and research centers to ensure compliance. They assist the OIC and the

Provost in implementing the UMD export compliance program. They play a critical role in

supporting, facilitating, and coordinating faculty and staff training. They play a critical role

- 38 -

in assessing the appropriateness of sponsoring a foreign visiting scholar or other foreign

visitor in their departments and centers, and approving foreign travel requests.

Principal Investigators

The PI is responsible for the following:

have the best understanding of his or her research and play the

primary role in developing and directing all research projects. Therefore, PIs have the best

information as to whether the particular technology, data, or information involved in that

research is or may be covered by export control regulations. PIs also make decisions

regarding equipment or technology and to whom it is transferred. Because there is a high

penalty for non-compliance with export control regulations, it is critical for PIs to

understand these regulations and work with the administrative staff in the OIC and ORA to

evaluate technical aspects of export controlled items, technology, or data.

•

Reviewing UMD information on export regulations provided on the OIC website;

•

Participating in training and identifying staff and students to attend training;

•

Determining whether there may be any export control issues to address before

preparing a proposal or beginning any research;

•

Communicating with OIC and ORA if any export control issues are identified or if any

questions arise about export regulations;

•

Cooperating with OIC in developing Technology Control Plans (TCPs) and applying

for licenses and following the TCP to ensure compliance with all applicable

restrictions;

•

Adhering strictly to any applicable restrictions and coopering fully with UMD's

efforts to monitor compliance when export control regulations apply;

•

Notifying the OIC as soon as any change is necessary for work on a controlled

project, such as a change in the scope of work or the addition of new staff;

•

When conducting outside consulting activities, export control compliance is the

responsibility of the PI.

Administrative Assistants provide assistance to many departments and faculty throughout

UMD. There is an emphasis on training of Administrative Assistants due to the importance of

their role in assisting faculty to meet compliance procedures. They are typically involved

with activities such as international travel authorization forms, shipments, purchasing, hiring

documentation, and maintaining ProCard logs.

- 39 -

RECORD KEEPING

UMD must comply with the various record keeping requirements of the EAR and ITAR and

related laws and regulations. This is generally (and preferably) done by providing documents

to the OIC, but in some instances includes keeping documents locally and providing copies

to OIC. For example, the International Students and Scholars Office maintains all SEVIS

program records and purchasing maintains all records of vendor screens. The export control

records that are retained and secured include any licenses, license applications, policies,

manuals, forms and guidelines, memoranda, notes, correspondence, screens, contracts,

invoices and other financial records, shipping documents including bills of lading and

Shipper’s Export Declarations and Automated Export System (AES) records, records

submitted to OIC for vetting including exclusion and exemption analyses, certificates,

audit/review check sheets and reports, and the export control clearance form. Training

records are also retained by OIC and include sign-in sheets signed by persons attending, date

and location of training, speakers, and the subjects covered. Records are maintained for a

period of five years from the expiration date of the authorization or date an exemption is

claimed. Thereafter, the records shall be discarded consistent with the UMD record

retention policy.

- 40 -

AUDITS AND REVIEW OF COMPLIANCE PROGRAM

Audits are designed to systematically review and monitor the effectiveness of the UMD

export control compliance program and ensure compliance with export control laws.

Audits will be conducted by the OIC on an annual basis and on an ad hoc basis as needed.

Audit objectives related to export controls include but are not limited to the following:

•

Understanding and assessing the adequacy of management policies designed to

comply with all U.S. export control laws and regulations;

•

Documenting and evaluating controls implemented to ensure compliance with

policies;

•

Through testing, determine the effectiveness of these Guidelines and the controls in

place and, if necessary, recommend revisions to improve the effectiveness;

•

Monitor compliance of research projects and departments with export license

requirements, technology control plans and these compliance guidelines;

•

Identify possible violations.

The OIC will evaluate and report to the UMD Compliance Oversight Committee on an

annual basis on the results of its audits and the effectiveness of the export control

compliance program. This process is used to identify needed modifications to the Guidelines

and the SOPs to correct weaknesses identified in the compliance program. Based on this

report, the Compliance Oversight Committee will report to the Chancellor on an annual basis

on the effectiveness of the export control compliance program.

Audits are conducted by the Institutional Compliance Office and will include, but are not

limited to:

•

Verify that screen checks are being performed;

•

Check training logs and records;

•

Identify current training needs;

•

Verify and ensure appropriate records are in compliance;

•

Accuracy and conformity of export transaction documents;

•

Foreign national procedures are effective;

•

License and Technology Control Plan reviews;

•

Stop/hold procedures in place if problems arise;

•

Guidelines, procedures and forms updated to reflect any regulatory changes;

•

Review procedures for supervisory sign-offs, task and information management

between departments, including update contact persons for roles played by different

departments;

•

Assist departments with export control responsibilities to conduct annual internal

assessments.

Annual Guidelines Review

UMD Export Control Compliance Program Guidelines and Standard Operating Procedures

(SOPs) will be reviewed and updated at least annually. The Director of the Office of

Institutional Compliance oversees the annual review process, with review by the UMD

Compliance Oversight Committee of the changes.

- 41 -

DETECTING AND REPORTING VIOLATIONS

Commitment to Reporting

An integral part of export compliance is that employees report suspected violations of

export laws and these suspected violations are thoroughly investigated. It is the policy of

UMD to voluntarily self-disclose violations as required. Members of the UMD community

are expected to contact the OIC should they have any questions about the application of the

export control laws to their research or other activities. UMD faculty, administrators, staff and

students should report any potential violations to the OIC. No employee shall be punished

solely on the basis that he or she reported what was reasonably believed to be an act of

wrongdoing or a violation of the export control laws.

Compliance Hotline

Suspected violations relating to export controls, as well as other compliance concerns, may be

reported through the OIC at 508-910-9880. Messages are retrieved by the Director of

Institutional Compliance and callers may remain anonymous. If callers do choose to identify

themselves, the log of all calls is kept confidential.

Other Avenues for Reporting

Other avenues for reporting suspected violations include: visiting the Director of

Institutional Compliance, email akarberg@umassd.edu or sending a confidential memo by

intercampus mail to the Compliance Director at ATMC 217F.

Investigation

Once an alleged violation has been reported, an investigation will be initiated after

consultation with the UMD Compliance Oversight Committee to determine the validity of

the allegation and an appropriate response. If the allegation merits further fact finding and

investigation, the Committee will work with the appropriate parties to conduct a thorough

investigation. The results of its investigation are then made known to senior management

to consider further action, including notification of the appropriate government agency and

corrective action. All documents and records relating to any suspected violation must be

immediately secured and maintained in accordance with all applicable record keeping

requirements. Information Technology and Campus Police support these investigations as

needed.

Government Subpoenas

In the event any subpoena or other request for documents is received from any Federal

agency, immediately contact the Office of the General Counsel for appropriate and timely

response. Likewise, if a Federal agency representative arrives on campus, immediately

contact the Office of the General Counsel. You shall not interfere with or obstruct any

Federal agent or law enforcement officer in the performance of his/her duties.

- 42 -

Export Control Decision Tools:

Is this Project Export Controlled?

Fundamental Research

& Publicly Available

Information**

Gray Area Moving from

FR/PI to Export

Controlled Technology

Export Controlled

Areas, Applications and

Intended Use

Open Research –

Author or Sponsor begin to

An area identified by the

& applied

discuss restricting

Government Agency as

dissemination

Export Controlled

Found in the public

domain- released w/out

Approaching or getting close

Technology/Information

h ld

to application

out as proprietary or has

No proprietary or intellectual

intellectual property

property considerations

Knowing or suspecting

that the ultimate

(declaration)

Not associated with an area

the objective will be

Conveying or teaching

excluded by General

controlled

technology, processes with

Prohibitions, end use and

intent of transferring Know-

user restrictions

Thinking about

intellectual property

How abroad

Intended or held out for the

Detailed Design that

General Public

Preliminary optimization

leading to design

Know-How

Issued by the U.S.

Operating & Maintenance

Government with the intent

Thinking about making the

Manuals

Openly Releasable

technology or information

proprietary

Technology Transfer-

Data gathering or note taking

that helps or supports Export

Control Technology

NO EXPORT CONTROL

GRAY AREA

EXPORT CONTROLS

APPLY

* Note: Each technology area may use different terms/processes that needs to be taken into

account. The degree of rigor is highly dependent on the criticalness of the technology

under development.

**Excludes General Prohibitions & End Use/User Restrictions

- 43 -

yes

Does my foreign made item incorporate controlled U.S.

origin items that exceed the

de minimus

limits defined

n Sec 734.4 or Supp. No.2 to part 734 of the EAR, or

is it ineligible for

de minimus

Sec 734.3 (a)(3)

Is the foreign-made item a direct product of US origin

technology or software, as described in Sec 736.2(b)(3)

of the EAR, and the destination is Cuba, Libya, or a

destination in Country Group D?: 1?

Sec 734.3 (a)(4) and (5)

Am I involved in an activity described in 734.5,

e.g. related to the proliferation of chemical or

biological weapons, nuclear explosive devices or

“missiles”, technical assistance wi

th respect to

encryption, or activities prohibited by any order

issued under the EAR? Sec 734.5 (a), (b), and (c)

Does my export or reexport consist of prerecorded

phonograph records, printed books, pamphlets &

misc. publications as described in the EAR?

Sec 734.3 (b)(2)

Is the item I am planning to export or reexport

subject to the exclusive jurisdiction of another US

Government Federal Dept or Agency?

Sec 734.3 (b)(1)

Is the technology or software I am planning to

export or reexport publicly available

(excluding

encryption items)?

Sec 734.3 (b)(3)

Is my item in the U.S.?

Sec 734.3 (a)(1)

Is my item outside of the US, but of US origin?

Sec 734.3 (a)(2)

yes

Am I subject to Export Administration Regulations?

(Supplement No. 2 to Part 732)

- 44 -

UMD ONLINE RESOURCES

Helpful Information

http://www.atmc.umassd.edu/institutional_compliance/export.cfm

•

U.S. Bureau of Industry and Security website http://www.bis.doc.gov/

•

Export Control Guidelines

•

Differences between ITAR and EAR

•

Briefing on Handling of Export-Controlled Information

•

Export Controlled or Embargoed Countries, Entities and Persons

•

Lists of Controlled Technologies

•

Export Control Violations

Training Information

•

Powerpoint presentations

•

Scheduled events

Forms

•

Annual Certification Export License Exception Temporary Exports/Re-exports

•

Request for Annual Certification to Travel with UMD Issued Laptop

•

Request to Ship Materials or Equipment Outside the U.S.

•

End User Certificate Form

•

Export Compliance Clearance Form

•

Technology Control Plan Template

•

Travel Authorization Form A and B

•

PI Export Control Checklist

•

Supplier Classification Request

•

Freight Forwarder Example Letter of Engagement

•

Sponsor Letter Template

•

MOU Between UMD and Partner Universities