Export Controls

(December 21, 2006).

(November 29, 2006).

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(September 12, 2006)

Washington, D.C. - U.S. Commerce Secretary Carlos M. Gutierrez today announced the appointment of 12 business and academic leaders to the newly formed Deemed Export Advisory Committee.

The Advisory Committee will address the complex issues surrounding sensitive technology transfers which involve the release of closely monitored dual-use technology to foreign nationals in the United States, known as “deemed exports.” Unauthorized release of tightly monitored technology to parties of concern could contribute to the development of weapons of mass destruction.

Secretary Gutierrez named Norman Augustine, Retired Chairman & CEO, Lockheed Martin Corporation and Robert Gates, PhD, President of Texas A&M, to be Co-Chairs of the Advisory Group.

"This committee will address evolving export policies to strike a balance between protecting national security and ensuring that the United States continues to build upon its position as a leading innovator of technology," said Secretary Gutierrez. "This is an important issue at a vital time in our nation, and I appreciate the service of our Co-Chairs Norm Augustine and Bob Gates, and all members of the Committee."

The formation of the Committee is a direct result of President Bush’s challenge to expand competitiveness while protecting U.S. national security. The Administration has undertaken a comprehensive review of deemed export policy, based on extensive dialogue over the last two years with industry, academia and the research community.

(August 17, 2006)

The U.S. Department of Commerce today announced that Lawrence Scibetta of Port St. Lucie, Florida, has agreed to pay a $30,000 civil penalty and be subject to a 20-year denial of export privileges to settle charges that he violated the Export Administration Regulations (EAR) in connection with the unlicensed export of thermal imaging cameras to the United Arab Emirates.

The Commerce Department’s Bureau of Industry and Security (BIS) charged that on about June 10, 2004, Scibetta engaged in conduct prohibited by the EAR when he attempted to export two Raytheon thermal imaging cameras from the United States to the United Arab Emirates without the required export license. Scibetta was also charged with acting with knowledge and making false statements to the U.S. Government. At the time of the attempted export, Scibetta was living in New Jersey.

BIS has increased its focus on preventing the spread of items that are useful to terrorists, in weapons of mass destruction, or in other weapons or devices that threaten U.S. national security. So far this year, these efforts have led to 33 criminal convictions and criminal fines of $2.85 million, as well as 22 denial orders and 66 administrative penalties totaling $6.22 million.

Assistant Secretary for Export Enforcement Darryl W. Jackson commended BIS’s New York Field Office for its work in this investigation.

(August 11, 2006)

On August 11, 2006, the United Nations Security Council voted unanimously to impose an embargo on the export of arms and related material, as well as defense services, to Lebanon. A formal acknowledgement of the arms embargo against Lebanon, along with an amendment to Section 126.1 of the ITAR to reflect the fact of the embargo, will be published shortly in the Federal Register.

(May 31, 2006)

The Bureau of Industry and Security (BIS) announced (Fed. Reg.: Vol 71; No. 104; pp.30840-30844) that it has reviewed the public comments in response to the "Advance Notice of Proposed Rulemaking: Revision and Clarification of Deemed Export Related Regulatory Requirements" (ANPR) published in the Federal Register on March 28, 2005, and has decided to withdraw the ANPR.

The BIS concluded the existing definition of "use" was appropriate. The definition states that the technology of the operation, installation, maintenance, repair, overhaul, and refurbishing must all be present to trigger the need for a deemed export license.

In addition, the BIS decided that the current deemed export licensing policy which focuses on a foreign national's country of citizenship or permanent residency rather than country of birth is still appropriate.

However, the BIS does state in the announcement: "While the product of the fundamental research is not subject to the EAR because the results of that research are intended for publication and dissemination within the scientific community, authorization may be required if during the conduct of the research controlled technology is released to a foreign national." In other words, a deemed export license may be necessary if controlled proprietary technology is given to a foreign national even though the results of the research may be in the public domain and therefore, not subject to the EAR.

Federal regulations promulgated and enforced by the Department of Commerce, Export Administration Regulations (EAR), and the Department of State, International Traffic in Arms Regulations (ITAR), prohibit the unlicensed export of specific technologies for reasons of national security or protection of trade. If University research involves such specified technologies, the EAR and/or ITAR may require the University to obtain prior approval from State or Commerce before allowing foreign nationals to participate in the research, partnering with a foreign company and/or sharing research—verbally or in writing—with persons who are not United States citizens or permanent resident aliens.

Export control regulations have the potential to harm the quality of University research, undermine publication rights, and prohibit international collaboration if the dissemination of University research is not placed in the public domain and does not qualify for the fundamental research exclusion (see below). The consequences of violating these regulations can be quite severe, ranging from loss of research contracts to monetary penalties to jail time for the individual violating these regulations.

The University is working with the Council on Government Relations (COGR), the Association of American Universities (AAU), and other nationally recognized research universities to exclude all fundamental university research from export regulation. Until such time as those efforts are successful, the Office of University Research Services (OURS) and Principal Investigator should conduct a thorough review of research projects and contract provisions to determine whether and, if so how, a particular research project is impacted by those regulations. Principal Investigators have the following responsibilities:

• prior to commencing any research, to review and cooperate with OURS to determine
  whether their research is impacted by the controls or requirements contained within
  export regulations, and
• to re-evaluate that determination before changing the scope or adding new staff to
  the project to determine if such changes alter the initial determination; and
• to make export determinations far enough in advance to obtain an authorization,
  should one be required.

The University will assist PIs in assessing the application of such regulations, but primary compliance responsibility rests with the principal investigator of the research.

Export control decisions depend on a correct understanding of the following terms. The official regulatory definition should be consulted in specific applications.

• The term export, as used in export control regulations, has an expansive meaning. Generally, an export includes any: (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 technology, software or technical data to any foreign national; or (4) actual use or application of covered technology on behalf of or for the benefit of any foreign entity or person anywhere. The official definition of export under the EAR and ITAR should be consulted when determining whether a specific act constitutes an export. As is evident in many instances, export is defined so as to preclude the participation of foreign graduate students in research that involves covered technology without first obtaining a license from the appropriate government agency.
• The Export Administration Regulations (EAR), Title 15, sections 730-774 of the Code of Federal Regulations (CFR) are promulgated and implemented by the Department of Commerce. The EAR regulate the export of goods and services identified on the Commodity Control List (CCL), Title 15 CFR section 774, Supp. 1. The complete text of the EAR and CCL are available online. Printed versions of the EAR and CCL are available.
• The International Traffic in Arms Regulations (ITAR), 22 CFR sections 120-130, are promulgated and implemented by the Department of State and regulate defense articles and services and related technical data that are identified on the Munitions Control List (MCL), 22 CFR § 121.1. Complete, on-line versions of the ITAR and MCL are available online at: Gov’t Printing Office site and at website for the Federation of American Scientists.
• Commodity Jurisdiction Ruling: Where an article is arguably covered by both the EAR and ITAR, a request can be made to the State Department to determine which agency will have jurisdiction over the export of the article.
• Fundamental Research, as used in the export control regulations, includes basic or applied research in science and/or engineering 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 which results in information which is restricted for proprietary reasons or pursuant to specific U.S. Government access and dissemination controls. University research will not be deemed to qualify as Fundamental Research if: (1) the University or research accepts any restrictions on the publication of the information resulting from the research, other than limited prepublication reviews by research sponsors to prevent inadvertent divulging of proprietary information provided to the researcher by sponsor or to insure that publication will not compromise patent rights of the sponsor; or (2) the research is federally funded and specific access and dissemination controls regarding the resulting information have been accepted by University or the researcher. The citation for the official definition of Fundamental Research under the EAR is 15 CFR § 734.8. The ITAR citation is 22 CFR § 120.11.
• Public Domain (22 CFR 120.11) means information that is published and that is generally accessible or available to the public: (1) through sales at newsstands and bookstores; (2) through subscriptions which are available without restriction to any individual who desires to obtain or purchase the published information; (3) through second class mailing privileges granted by the U.S. Government; (4) at libraries open to the public or from which the public can obtain documents; (5) through patents available at any patent office; (6) through unlimited distribution at a conference, meeting, seminar, trade show or exhibition, generally accessible to the public, in the United States; (7) through public release (i.e., unlimited distribution) in any form (e.g., not necessarily in published form) after approval by the cognizant U.S. government department or agency; and (8) through fundamental research.
• Foreign person means any natural person who is not a lawful permanent resident as defined by 8 U.S.C. 1101(a)(20) or who is not a protected individual as defined by 8 U.S.C. 1324(a)(3). It also means any foreign corporation, business association, partnership, trust, society or any other entity or group that is not incorporated or organized to do business in the United States, as well as international organizations, foreign governments, and any agency or subdivision of foreign governments (e.g. diplomatic missions).

* Information in this resource has been derived from materials from the MIT Office of Sponsored Programs (OSP) and the University of Maryland Office of Research Administration and Advancement

Current export law controls both hardware and information concerning a wide range of technologies in a way that may have a substantial impact on research at Winston-Salem State University. Federal regulations control the conditions under which certain information, technologies, and commodities can be transmitted overseas to anyone, including U.S. citizens, or to a foreign national on U.S. soil. The following Q&A may help clarify some of the requirements.

What is an export?

The export regulations define an export as:

• Any oral, written, electronic or visual disclosure, shipment, transfer or transmission outside the United States to anyone, including a U.S. citizen, of any commodity, technology (information, technical data, or assistance) or software/codes.
• Any oral, written, electronic or visual disclosure, transfer or transmission to any person or entity of a controlled commodity, technology or software/codes with an intent to transfer it to a non-U.S. entity or individual, wherever located (even to a foreign student or colleague at WSSU)
• Any transfer of these items or information to a foreign embassy or affiliate

It is important to emphasize that only exports for which the U.S. government requires a license are those that are listed on the export controlled lists. The vast majority of exports do not require the prior approval of the U.S. government.

Who controls exports?

There are two agencies that control exports:

• The Department of Commerce through its Export Administration Regulations (EAR), Title 15, sections 730-774 of the Code of Federal Regulations. For a list of controlled technologies, see 15 CFR 774, Supplement I.
• The Department of State (which controls the export of “defense articles and defense services”) under the International Traffic in Arms Regulations (ITAR), 22 CFR 120-130. For a list of controlled technologies, see 22 CFR 121.1.

What is considered fundamental research?

Fundamental research, as used in the export control regulations, includes basic or applied research in science and/or engineering at an accredited institution of higher learning in the United States where the resulting information, in some cases, is ordinarily published and shared broadly in the scientific community and, in other cases, where the resulting information has been or is about to be published. Fundamental research is distinguished from research that results in information that is restricted for proprietary reasons or pursuant to specific U.S. government access and dissemination controls. University research will not be deemed to qualify as fundamental research if (1)the university or research institution accepts any restrictions on the publication of the information resulting from the research, other than 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 patent rights of the sponsor; or (2) the research is federally funded and specific access or dissemination controls regarding the resulting information have been accepted by the university or the researcher.

What is considered published information as used in question 3?

The EAR and the ITAR approach the issue of publication differently. For the EAR, the requirement is that the information has been, is about to be, or is ordinarily published.

The ITAR requirement is that the information has been published. Information becomes “published” or considered as “ordinarily published” when it is generally accessible to the interested public through a variety of ways. Publication in periodicals, books, print, electronic or any other media available for general distribution to any member of the public or to those that would be interested in the material in a scientific or engineering discipline. Published or ordinarily published material also include the following: readily available at libraries open to the public; issued patents; and releases at an open conference, meeting, seminar, trade show, or other open gathering. A conference is considered “open” if all technically qualified members of the public are eligible to attend and attendees are permitted to take notes or otherwise make a personal record (but not necessarily a recording) of the proceedings and presentations. In all cases, access to the information must be free or for a fee that does not exceed the cost to produce and distribute the material or hold the conference (including a reasonable profit).

What is public domain and why is it important?

Public domain is the term used for “information that is published and generally accessible or available to the public” through a variety of mechanisms. Publicly available software or technology is that which already is, or will be, published. To fall under this exclusion, there area number of conditions which demonstrate public availability which are enumerated in the EAR.

If a license is needed, what is the process?

Unless there is an urgent need for expedited review and approval, it normally takes 4-6 months to secure a license to export controlled materials from the U.S. or to transmit them to a non U.S. citizen or permanent resident within the U.S

*This resource was created by the MIT Office of Sponsored Programs (OSP)

What is a Schedule B Number?

There are millions of trade transactions occurring each year. These transactions are classified under approximately 8,000 different products leaving the United States. Every item that is exported is assigned a unique 10-digit identification code. Every 10-digit item is part of a series of progressively broader product categories.

Why do you need to know your HS (Harmonized System)/Schedule B number?

Exporters need to know the HS/Schedule B number for their products for several reasons: The HS number is needed to look up tariff rates; the Schedule B number is needed to complete the Shipper's Export Declaration; the HS number may be needed on shipping documents, including certificates of origin; and, the HS number is needed to determine whether a product qualifies for a preferential tariff under a Free Trade Agreement. HS numbers can also be used for market research purposes, such as identifying foreign markets where your product is currently being exported.