)EXPORT CONTROL POLICY
INTERNATIONAL TRAFFIC IN ARMS REGULATIONS (ITAR)
AND THE
EXPORT ADMINISTRATION REGULATIONS (EAR)
All export/import compliance questions should be addressed to Natascha Finnerty at (617) 496-7557 or nfinnerty@cfa.harvard.edu, the SAO Export Compliance Official (SAO/ECO). The SAO/ECO is responsible for the day-to-day export/import operations and compliance oversight. The SAO/ECO will answer all questions, apply for the appropriate license, identify and account for ITAR controlled items/technical data that SAO handles, and prepare all necessary Technical Assistance Agreements (TAAs) and related documents, as necessary.
It is important to know that exporting is not limited to simply transferring a document or piece of equipment to a foreign national. The range of activities that could potentially pose export-control concerns is quite broad. Examples include:
Very little. Even if the export is a journal reprint (fundamental research, public domain), where and/or to whom you send it may be export sensitive. It is not necessarily the material that determines export sensitivity; all aspects of the transaction must comply with U.S. regulations. Every export requires export review.
A number of government agencies have various responsibilities for export controls. Each exercises administrative control over specific types of technology or restricted trade. The following are those most relevant to SAO:
Department of State The Department of State, Office of Defense Trade Controls(ODTC) administers the export of "defense articles and defense services" under the International Traffic in Arms Regulations (ITAR). In coordination with the Department of Defense, the State Department determines if an article or service is subject to export control based upon whether the item or technology: (1) is inherently military in character, or (2) was specially designed, modified, or engineered for military applications. If so, the item or technical information is placed on the U.S. Munitions List. The US Munitions List (USML) includes such obvious items as firearms, ammunition, and explosives. It also includes all military vehicles (land, air, and sea); spacecraft (including nonmilitary); launch vehicles; military and space electronics; protective personnel equipment; guidance and control equipment and components; auxiliary equipment, and miscellaneous articles related to military equipment such as Category XV-Spacecraft Systems and Associated Equipment (of particular interest to SAO). Export of any item on the U.S. Munitions List requires specific authorization of the State Department. SAO is registered with the Department of State to obtain necessary export/import licenses. |
Department of Commerce The Department of Commerce controls the export of all commodities, technologies, and software not regulated by another government agency. This is done through the Department's Bureau of Industry and Security (BIS), which maintains an extensive, multi-volume manual of Export Administration Regulations (EAR). Key to the EAR is the Commerce Control List (CCL) (Categories 6 [Lasers & Sensors] & 9 [Propulsion Systems, Space Vehicles] may be of particular interest to SAO). This is a section of the EAR that lists specific commodities and their related technologies and the countries to which they may or may not be exported, along with any special restrictions or exceptions that may apply. There can be confusing overlap between items on the Commerce Control List and items on the U.S. Munitions List. The SAO/ECO can help determine the appropriate controlling agency. SAO is in the process of registering with the Department of Commerce to obtain necessary export/import licenses. |
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Designated individuals and organizations are prohibited from receiving U.S. exports and others may receive goods only if they are licensed, even items that do not normally require a license based on the ECCN and Commerce Country Chart or based on an EAR99 designation. Exporters must be aware of the following lists:
Entity List - EAR Part 744, Supplement 4 - A list of organizations identified by BIS as engaging in activities related to the proliferation of weapons of mass destruction. Depending on your item, you may be required to obtain a license to export to an organization on the Entity List even if one is not otherwise required.
Treasury Department Specially Designated Nationals and Blocked Persons List - EAR Part 764, Supplement 3 - A list maintained by the Department of Treasury's Office of Foreign Assets Control comprising individuals and organizations deemed to represent restricted countries or known to be involved in terrorism and narcotics trafficking.
The Unverified List is composed of firms for which BIS was unable to complete an end-use check. Firms on the unverified list present a "red flag" that exporters have a duty to inquire about before making an export to them.
Denied Persons - You may not participate in an export or reexport transaction subject to the EAR with a person whose export privileges have been denied by the BIS. A list of those firms and individuals whose export privileges have been denied is available on this Web site. Note that some denied persons are located within the United States. If you believe a person whose export privileges have been denied wants to buy your product in order to export it, you must not make the sale and should report the situation to BIS's Office of Export Enforcement. If you have questions about Denied Persons, you may contact BIS's Office of Enforcement Analysis at (202) 482-4255.
In addition to controlling exports of specific commodities to specific individuals or geographical destinations, exports must be evaluated with regard to their end use and end user.
End-use and end-user export control policy requires the exporter to assume considerable responsibility for ensuring that an export is consistent with all U.S. export laws and regulations aimed at meeting this country’s national security, economic, and foreign policy objectives. Even uncontrolled items (that is, items normally eligible for license exceptions) may require an export license when a particular end user is concerned.
The U.S. government requires that licenses be obtained for exports to foreign entities involved in defense-related activities (very broadly defined). In addition, the government maintains lists of sensitive countries for which exports must undergo formal export controls or other review processes.
Current end-use and end-user export control policy also requires a license review for exports to specified destinations when there is reason to know, suspect, or believe that the exports will be used in the design, development, production, or use of missiles or in the design, development, production, stockpiling, or use of chemical or biological weapons.
An export license is required when there is reason to know, suspect, or believe that the exporter is informed that the export involves an identified risk of diversion to an unauthorized end user.
The Bureau of Export Administration requires the exporter to "know the customer." Guidance and "red flags" in this regard can be found in detail in the Export Administration Regulations (EAR: 15 CFR Part 732, Supplement 3).
Be alert for "red flags." That is, note any irregularities or abnormal circumstances in a transaction that might indicate the export is destined for an inappropriate end use, end user, or destination. Potential "red flags" could include:
If there are "red flags," inquire further. In the absence of any "red flags," SAO employees are not normally expected to inquire, verify, or otherwise go behind the foreign party's representation. However, when "red flags" are raised, employees should immediately notify the SAO Export Compliance Official so that suspicious circumstances and the end use, end user, or ultimate country of destination may be verified.
Avoiding willful blindness. Do not "put on blinders" to prevent the discovery of, or disregard, obvious and relevant information. (e.g., do not tell potential foreign partners to refrain from discussing actual end uses, end users, or countries of destination.) Attempts to avoid learning "bad" information will not insulate SAO or individuals from liability and could be considered an aggravating factor in enforcement proceedings.
Handling "red flags." The technical and program knowledge of employees in spotting "red flags" is a valuable resource to the SAO officials responsible for the Observatory's compliance with U.S. export control policy. All "red flags" must be resolved before the export can proceed.
When in doubt, do not export. If concerns remain about a particular export after inquiry and evaluation, refrain from the export.
An export of technology or source code (except encryption source code) is "deemed" to take place when it is released to a foreign national within the US. (See 15 CFR §734.2(b)(2)(ii) of the Export Administration Regulations (EAR).
Technology is "released" for export when it is available to foreign nationals for visual inspection (e.g. reading technical specifications, plans, blueprints, etc.); when technology is exchanged orally; or when technology is made available by practice or application under the guidance of persons with knowledge of the technology. See 15 CFR §734.2(b)(3).
Per §772 of the Export Administration Regulations (EAR), "technology" is specific information necessary for the "development," "production," or "use" of a product. The General Technology Note states that the "export of technology…is controlled according to the provisions of each Category." It further states that "technology required for the development, production, or use of a controlled product remains controlled even when applicable to a product controlled at a lower level." Please note that the terms "required," "development," "production," "use," and "technology" are all defined in §772 of the EAR. Controlled technology is that which is listed on the Commerce Control List.
Any foreign national is subject to the "deemed export" rule except a foreign national who (1) is granted permanent residence, as demonstrated by the issuance of a permanent resident visa (i.e., "Green Card"); or (2) is granted U.S. citizenship; or (3) is granted status as a "protected person" under 8 U.S.C. 1324b(a)(3). Foreign nationals include all persons in the U.S. as tourists, students, businesspeople, scholars, researchers, technical experts, sailors, airline personnel, salespeople, military personnel, diplomats, etc. As noted, one exception to this general statement is a "protected person." "Protected persons" include political refugees and political asylum holders. Be aware that individuals seeking "protected person" status must satisfy all of the terms and conditions that are fully set forth in 8 U.S.C. 1324b(a)(3). It should be emphasized that although the deemed export rule may be triggered, this does not necessarily mean that a license is required, since the technology may be license exception eligible.
For individuals who are citizens of more than one foreign country, or have citizenship in one foreign country and permanent residence in another, as a general policy, the last permanent resident status or citizenship obtained controls. If, for some reason, the status of a foreign national is uncertain, then the issue may be referred to the Bureau of Industry and Security (BIS), to determine where the stronger ties lie, based on the facts of the specific case. In response to a request for the status of a foreign national, BIS will scrutinize the foreign national's family, professional, financial, and employment ties.
Noncompliance can have serious consequences. Criminal and administrative penalties can be levied, depending upon the nature and severity of the violation. SAO could lose current and/or future licensing privileges, AND administrative and criminal penalties can be levied against both SAO and individual employees.
In addition, the Comprehensive Crime Control Act gives the courts authority to increase substantially the Export Administration Act's criminal penalties.
ITAR Part 127- Violations and Penalties. (22 CFR Parts 120-130)
EAR Part 764.1-Enforcement and Protective Measures. (15 CFR 730-774)
Whenever possible, the Export Compliance section will offer in-person training seminars as well as access to informational materials, such as:
)In furtherance of SAO’s significant statutory and regulatory obligations to maintain a compliant Export Control system, SPP recommends that project personnel who have, or foresee, involvement in international collaborations, consider taking one of the many short seminars offered under the auspices of the U.S. Department of Commerce, Bureau of Industry and Security (BIS), Outreach and Educational Services Division.
Information on the location, frequency, and content of seminars may be found on the BIS Seminar and Training web page. A course that we think is quite thorough, comprehensive, and informative and allows the participant to gain more insight into the processes and procedures associated with this complex topic is the "Complying with U.S. Export Controls Export Regulations" course, which is a 2-day course costing approximately $300 that is offered annually by the Department of Commerce on Long Island, NY, as well as many other locations throughout the country.
In addition to classroom training opportunities, BIS occasionally offers free "Webinar" broadcasts. Recent “Webinars” have been archived by BIS and are available to access free of charge on their website. This information supplements, but does not supplant, the SAO Export Control Policy. If you have any questions regarding the content of these “Webinars,” or any other ITAR/EAR issues, please contact Natascha Finnerty, the SAO Export Compliance Officer (SAO/ECO).
Please note: when you select the link below, you are leaving the CfA Web Site and no guarantees can be made as to the security of outside sites. Should you experience difficulty viewing either the PDF or video formats, please contact your computer support help desk to ensure you have the necessary software programs. BIS Archived Webinar Programs
PROPOSED MARKINGS:
"This communication [may] contain(s) information subject to United States export control regulation under either the International Traffic in Arms Regulations (ITAR), 22 CFR Parts 121, of the United States Department of State, the Export Administration Regulations (EAR), 15 CFR Part 774, of the United States Department of Commerce, or both. Export of this information to foreign persons, entities, or countries is subject to prior license or exemption by the applicable agency."
SUGGESTION:
Perhaps the viewgraphs can have "U.S. EXPORT (ITAR/EAR) CONTROLLED." While, at the start of presentations, in handouts, etc. the above statement can be prominently inserted or read.
Ordinary care in accordance with export control regulations, SAO standards and generally accepted scientific research practices ought to be sufficient. The regulations prescribe no level of security. However, controlled materials should be maintained securely as a best practice.
Where materials are controlled subject to these regulations, no affirmative act or omission should allow them to fall ordinarily into the control of unauthorized persons, entities, or countries.
Ordinarily, whatever reasonable actions or procedures are necessary to meet regulatory obligations is the appropriate level of security for files, databases and web pages.
There is no clearly reliable bright-line definition of information in the public domain for the purposes of the export control regulations. The better approach to this issue is to be prepared to justify a claim that information is in the public domain and therefore sharable.
Where information has been published or made available on a publicly accessible website, is ordinarily communicated to students in the course of instruction, is general and theoretical as opposed to specific and technical, etc., there is a more persuasive case that it is in the public domain.
HOWEVER, there are notorious cases where the communication of information that is generally accepted as in the public domain is nevertheless held subject to export control regulation due to the party/end-user to whom it is to be communicated.
SAO conducts business as a Non-Profit organization. There are no known initiatives to change our classification to that of an educational institution for the purposes of the export control regulations.
However, there really does not appear to be any appreciable relief from the strictures of these processes whatever the operational classification.
Any transfer of information covered by the U. S. Munitions List (USML) or the Commerce Control List (CCL) to any person, either within or outside the U. S., with knowledge or intent that the information will be transferred outside of the U. S., is restricted and requires a license. The following are not restricted:
Our obligation under ITAR/EAR arose whenever the relevant implementing regulations were first promulgated. Consequently, retrospective applicability goes back farther than a decade. However, there is a standard records retention requirement of five (5) years from the expiration of a State Department (ITAR) license, or other governmental approval, in effect.
Updated 4/7/2008