EXPORT REVIEW PROCEDURES GUIDE
II. EXPORT JURISDICTION AND LICENSE DETERMINATION
There are a series of questions for any University community & employees to answer to determine which
U.S. department/agency maintains jurisdiction over the export item, technology, article, or service. After
License jurisdiction, a determination must be made regarding whether a license is required or not for the
item, technology, article, or service. The decision-making process includes the main issue of determining
whether the research is "Fundamental” in nature, or not. (See section III.) The University is often under
the Fundamental Research Exception, however, there are many situations that are not covered or exempt
from export control (or licensing) under the FRE. Often the process requires both the faculty/employee and
ORA or the Office of Compliance for further information on how to proceed with their project. The Export
Control decision trees in Appendices 1 and 2 are helpful in analyzing these issues.
The first step in the export review process is to identify the correct agency jurisdiction, which then
identifies several regulations that apply to the situation or items at hand. Projects, research, conferences,
etc., involving exports to foreign nationals (including deemed exports), whether for research, hiring,
visiting scholars, or students will be reviewed with Office of Research Administration, Office of Compliance
& Policy, and/or Office of Legal Services, as appropriate. The review process is initiated in several ways,
such as, from the request of a Principal Investigator (PI) or Faculty member to one of the resource offices.
Since a PI is the expert on the item, research, or technology, s/he is in the best position to explain the
technology involved in the export review. If this review involves research, the statement of work and other
relevant information are reviewed to determine if the project is subject to export controls or not, and then
determine the next steps. Mines relies on the PI or faculty member information and expertise in jointly
determining whether the item, technology, research, etc. may fall within export controlled areas.
1. Export Control under U.S. Agencies.
The three (3) U.S. agencies that generally come into play on Export Control issues are the: 1) U.S.
Department of Commerce, 2) U.S. Department of State, and 3) U.S. Department of the Treasury. Each
agency has statutory basis for their power and they have promulgated and implemented regulations based
on the statutory authority that are applicable to export controls and are discussed in this procedures
document, in Table 1, “Regulations Agency and Oversight” below:
EAR: Export Administration
Department of Commerce
Technologies: both commercial
Bureau of Business & Industry
& military application, not those
covered by ITAR
ITAR: International Traffic in
Depart of State
Technologies, inherently military
Directorate of Defense Trade Controls
OFAC: Office of Foreign Assets
Department of Treasury,
Prohibits transactions of value
with certain countries/persons
Table 1 Regulations Agency and Oversight
EXPORT REVIEW PROCEDURES GUIDE
2. Additional oversight agencies.
The export or re-export of items or commodities may be controlled by/subject to oversight by the following
agencies (as identified in the EAR, 15 CFR 734.3(b)(1)):
• U.S. Nuclear Regulatory Commission (commodities related to nuclear reactor vessels (10 CFR
part 110, Export & Import of Nuclear Equipment & Materials);
• U.S. Department of Energy (technology related to the production of special nuclear materials
and the transfer of unclassified nuclear technology & assistance (10 CFR part 810, Assistance to
Foreign Atomic Energy activities under the Atomic Energy Act);
• U.S. Patent & Trademark Office, (export to a foreign country of unclassified technology in the
form of a patent application or an amendment, modification, or supplement thereto or division
thereof (37 CFR part 5), with authority to BIS to address; and Exports and re-exports of such
technology not approved under PTO regulations must comply with the EAR;
• Department of Defense (DoD) and Department of State Foreign Military Sales (FMS) Program
(Items that are subject to the EAR that are sold, leased or loaned by the DoD to a foreign
country or international organization under the FMS Program of the Arms Export Control Act
pursuant to a Letter of Offer and Acceptance (LOA) authorizing such transfers are not “subject
to the EAR,” but rather, are subject to the authority of the Arms Export Control Act.)
Export Administration Regulations (EAR)
U.S. Department of Commerce statutory authority over export issues comes from the Export
Administration Act of 1979, as amended, (50 U.S.C. app. 2401-2420 (EAA)) and executive order(s).
Commerce’s goal of the security of the US, including national defense and competitiveness of industry and
healthy economy, resulting in the writing and adoption of the EARs that cover Exports, Re-exports, and
certain activities found in Title 15, Commerce and Foreign Trade, addressing the Bureau of Industry &
Security (BIS) (parts 700-799, Subchapter C, §§730-780). Note, the BIS regulations cover Chemical Weapons
conventions and Nuclear Fuel activities. Generally, Export Administration Regulations cover “Dual Use”
(civilian and/or military uses) commodities, software, and technology export and/or re-export (i.e.,
shipment, transmission, or release of a US item from one foreign country to another). The regulations
specifically provide that:
“the EAR control any item warranting control that is not exclusively controled for export, re-export, or
transfer (in-country) by another agency of the U.S. Government or otherwise excluded from being subject to
the EAR pursuant to §734.3(b) of the EAR. Thus, items subject to the EAR include purely civilian items, items
with both civil and military, terrorism or potential WMD-related applications, and items that are exclusively
used for military applications but that do not warrant control under the International Traffic in Arms
Regulations (ITAR) (22 CFR parts 120 et seq.).” See 15 CFR §730.3.
1. Determine Licensing Requirements.
The following steps generally outline how Mines determines licensing requirements for items/activities
under the EARs/regulations, including 3-steps:
a. Screen entities and individuals against the most recent Restricted Parties lists using Visual
Compliance Software to ensure that the individuals or entities to receive the technology or
items to be exported are not on any of these lists;
b. Review restrictions under the EAR for embargo information/restrictions to the particular
country of destination; and
c. Determine jurisdiction whether the commodity or activity is subject to the EAR, Part 734
and on the Commerce Control List, or CCL.
EXPORT REVIEW PROCEDURES GUIDE
• Note: If your item falls under the jurisdiction of the U.S. Department of Commerce and is not listed
on the CCL, then the item is designated as “EAR99.” The majority of commercial products are
designated EAR99 and generally will not require a license to be exported or re-exported. However,
if you plan to export an EAR99 item to an embargoed or sanctioned country, to a party of concern,
or in support of a prohibited end-use, you may be required to obtain a license.
If the commodity is subject to the EARs, Mines uses Compliance Software (available through ORA) to review
entities, individuals, embargo information, commodity/activity along with locations and reviews the
Commerce Control List (CCL) to identify items, technology, or materials that:
1) require a license for export; 2) if no license required (NLR); or 3) if the export cannot be made period.
2. Commerce Control List items & their Export Control Class Numbers (ECCN).
Al commodities, technology, or software subject to the licensing authority of Commerce-BIS are included in
the Commerce Control List (CCL), found in EAR (Title 15, Part 774, Supplement No. 1). Individual items on
the CCL are identified by an Export Control Classification Number, or ECCN, made up of numbers and letters
to identify the commodity or technology. An ECCN categorizes items based on the nature of the product
(i.e. type of commodity, technology, or software) and its respective technical parameters. The CCL
categories are in Table 2, and the five (5) CCL product groups (A-E) are in Table 3, on the following page:
Table 2 CCL Categories
Table 3: CCL Product Groups A-E
Nuclear & Miscellaneous
Systems, Equipment and
Materials, Chemicals, Microorganisms and
Test, Inspection and
5 Part 1
5 Part 2
Sensors and Lasers
Navigation and Avionics
Aerospace and Propulsion
Identify ECCN. Many products/items purchased, produced, or manufactured
already have an applicable ECCN (for the product or the parts making up the product). Ensure you inquire
with the manufacturer or through Mines Purchasing/Procurement Services to identify items or parts that
already have an ECCN assigned. For example, many computer manufacturers maintain a webpage listing
many of the global trade compliance categories for their products. E.g., see Apple Export Control page @
http://www.apple.com/legal/more-resources/gtc.html; or see Dell Export Control page @
https://software.dell.com/legal/export-control.aspx. (Manufacturers will advise you to verify through your
own counsel/export control office and Mines’ agrees, though, these lists are a great place to start
Classify Commodity using CCL listing. Commodities or products may be identified
using the CCL listing (10 CCL categories and the 5 product groups) to narrow down the item, product, or
technology and help identify jurisdiction/license requirements. See Tables 2 & 3 above. If you cannot
identify the commodity, or if you built the product in-house, please contact ORA for a method to request
and/or obtain a classification from the appropriate agency.
Catch-all Category: EAR99. The EAR99 designation is a “catch-all” category
assigned to items that are subject to the EAR, but that do not have a specific ECCN on the CCL. The majority
of U.S. origin goods are classified as EAR99, and under most circumstances, do not require a license for
export. EAR99 general y may be shipped under a “NLR” (No License Required) designation, unless the item
is going to: 1) an embargoed/sanctioned country, 2) an “end-user” of concern, or 3) a prohibited end-use.
3. Deemed Exports
The Commerce-BIS and other federal agencies have focused more attention on “Deemed Export(s)” in the
past few years. Typically, a Deemed Export occurs when there is a Release of technology or source code
(subject to EAR) to a Foreign National outside of or within the US, and is “deemed” to be an export to the
home country of the foreign national. All U.S. employers hiring foreign nationals (usually on H-1B visas) to
work in the United States on export control ed technologies are under the rules. See EAR, 15 CFR
It is important for Mines/PI to determine if there is an export issue with research proposals/projects in
which a foreign national will be assisting, collaborating, observing, or in situations where a software license
agreement contains language indicating that the software is controlled in transfer to certain countries.
However, as usual in this area of the law, the issue is not always clear. For example, in some cases, the
supervised use of a control ed computer by a foreign national may not amount to a deemed export if the
foreign national works under supervision of the U.S. faculty/PI, and if the foreign national does not access
the operating system. There are nuances within the regulations regarding this area, and generally
technology that is Publicly Available is not subject to the deemed export rule. However, that may also
depend on whether the employee is a “Bona Fide” employee that is a permanent and regular employee or
if the employee’s home country is part of the listing of countries authorized to receive the code.
The deemed export rule would not apply to Fundamental Research within an appropriate structure, such as
where any export controlled information or technology would not be released to foreign nationals on the
project (e.g., where an approved TCP, or Technical Control Plan, is in place to control access).
Activities that are Not Exports, Re-exports, or Transfers under the EAR. See 15 CFR
§734.18 The following activities are not exports, reexports, or transfers including:
EXPORT REVIEW PROCEDURES GUIDE
(1) Launching a spacecraft, launch vehicle, payload, or other item into space;
(2) Transmitting or otherwise transferring “technology” or “software” to a person in the US
who is not a foreign person from another person in the US;
(3) Transmitting or otherwise making a transfer (in-country) within the same foreign
country of “technology” or “software” between or among only persons who are not “foreign persons,” so
long as the transmission or transfer does not result in a release to a foreign person or to a person
prohibited from receiving the “technology” or “software”;
(4) Shipping, moving, or transferring items between or among the US, District of Columbia,
Commonwealths of Puerto Rico or Northern Mariana Islands, or any territory, dependency, or possession of
the US, as issued by the US Bureau of the Census;
(5) Sending, taking, or storing “technology” or “software” that is:
(i ) Secured using `end-to-end encryption;'
(iii) Secured using cryptographic modules (hardware or “software”) compliant with
Federal Information Processing Standards Publication 140-2 (FIPS 140-2) or its successors, supplemented by
“software” implementation, cryptographic key management and other procedures and controls that are in
accordance with guidance provided in current U.S. NIST publications, or other equally or more effective
cryptographic means; and
(iv) Not intentionally stored in a country listed in Country Group D:5 (US Arms
Embargoed Countries, see 15 CFR part 740, Supp. 1) or in the Russian Federation.
4. Commodity Jurisdiction (CJ) Request procedures
When it is difficult to make a determination regarding whether the particular product or service is civil,
military, or Dual-Use, Mines may request an opinion from either the Department of Commerce or the
Department of State to help clarify the appropriate agency jurisdiction. This request to an agency is known
as a Commodity Jurisdiction (“CJ”) request. The request wil be made in conjunction with ORA and/or
Office of Compliance.
A Commodity Jurisdiction Request is submitted to the Department of State, Directorate of Defense Trade
Controls (DDTC), in the form of a letter with supporting documents. Once received, a CJ request is assigned
a case number and copies of the request are staffed to appropriate U.S. Government agencies for review.
Mines will identify the letter as a “Commodity Jurisdiction Request for [specific item or technology]” e.g.,
with specific information, including manufacturer, model and/or part numbers, if any, and name of item. A
CJ Request case normally takes 40-60 days to complete. Note: Mines does not have to be registered with
the Department of State in order to make a CJ Request regarding the article or service and whether it is
covered by the US Munitions List. See 22 CFR §120.4.
5. “China Rule” or Validating End Use(r)
Prior to an Export, Re-export, or transfer in country, Mines must check for military end-use activities in the
People’s Republic of China, or for a 'Military end use' or 'Military end user' in Russia or Venezuela, either in
part or in whole, to meet the compliance obligations (including related terms such as use, development,
production, operation, installation, maintenance, and deployment). See 15 CFR 744.41. End User screening
distinguishes between private company and government owned end-use, through obtaining information on
how the end-user wil use the item, at what location, and for what specific purpose or contract. This also
allows for the differentiation between commercial and military use.
For quick triage, see the Decision Tree for Export Control in the Export Administration regulations regarding
the scope, general prohibitions, license exceptions, etc.
EXPORT REVIEW PROCEDURES GUIDE
C. International Traffic in Arms Regulations (ITAR)
The International Traffic in Arms Regulations (ITAR) are administered by the U.S. Department of State
(State) and apply to the control(s) of the export of defense articles that are enumerated on the U.S.
Munitions List (USML). The legal authority comes from the Arms Export and Control Act and Executive
Order 13637 and covers the export and temporary import of “Defense Articles” and/or “Defense Services.”
Designation as a Defense Article is principally based on whether the article is inherently military in
character, and includes the actual item, models and technical information that may reveal technical details
about the item. See 22 CFR§ 120.6.
1. Designate the item.
A specific article or service may be designated a Defense Article or Defense Service, if:
• The article or service meets the criteria on the US Munitions List or provides equivalent
performance capabilities of a Defense Article on the USML;
• in the future, the article/service provides a critical military or intelligence advantage and it
warrants control under this ITAR; or
• basically under a Commodity Jurisdiction determination, the article/service is covered
under ITAR. See 22 CFR 120.3.
Al U.S. Persons (including governmental entities) engaged in the manufacturing or exporting of Defense
Articles, technical defense information, or Defense Services are required to register with the Office of
Defense Trade Controls (ODTC), and then where necessary apply for and obtain licenses to work in this
area. Note: Mines is not registered with ODTC, and thus would need to register through ORA prior to
obtaining a license under ITAR. For informational purposes, if Mines decides to register in the future, the
following steps would be reviewed.
2. Entities that register with ODTC.
In order to apply for licenses the entities register with ODTC through an “Empowered Official” with
independent authority to enquire into any aspect of a proposed export or temporary import.” Thus, a PI or
faculty member alone is not an Empowered Official for Mines. Should Mines register with ODTC, then the
Office of Research Administration will maintain application direction and filing procedures.
3. Information and procedures regarding entities that apply for licenses.
Entities that have an Empowered Official and approve a license application follow the procedures including:
Review countries (including entities) for end-users that are denied licenses for the
export of Defense Articles/Services or Technical Data under Section 126.1 of ITAR. These may include
statutorily debarred parties listed under DDTC website and DOD excluded parties, BIS denied party lists,
and OFAC SDN list.
Review commodity or services on the US Munitions list, ITAR Part 121, for a
licensing determination, that includes at least the following:
• Describe item/use? Identify Source/developer?
• Specify item capabilities? Identify end user’s intended purpose?
• Additional applications beyond item intended use?
• Country (entity) of ultimate destination? Foreign availability for like items?
• Specific purpose for export?
EXPORT REVIEW PROCEDURES GUIDE
Exporting entity/university determines the type of license/approval that will be needed
for a particular circumstance based on regulations. Documentation, such as request letters, projects, etc. wil be
requested, including for example, the DSP-83 Form (application for authorization to export significant military
equipment and classified equipment or data (22 CFR §§123.10(a), 124.10 and 125.7)) a non-transfer and use
certificate for any item classified as Significant Military Equipment (SME), and the end use and foreign end-user;
previous licenses to the same entity, etc.
License to export approved.
The License is valid for four (4) years from the date issued (or as provided on the documentation from the
agency), and often has restrictions for the applying entity and faculty to follow (e.g., attaching license copy
when shipping items.) There may be additional requirements/agreements when a License is approved by
the agency, including, but not limited to, the fol owing:
Technical Assistance Agreement (TAA): Required to be submitted and approved
by ODTC before defense services or training (including technical data) may be provided to a foreign person
either in the U.S. or in a foreign country. A TAA approval may require many months for approval or
rejection, and is not official unless ODTC approves it.
Manufacturing License Agreement (MLA): Similar to TAAs, MLAs usually involve
the export of technical data, the performance of defense services, and the export of defense articles
necessary for the manufacturing or production of an ITAR controlled item.
c. Office of Defense Trade Controls (ODTC) Review Process if an entity submits a
License Application or TAA, ODTC staffs out the case to various federal governmental agencies for review
(such as DOD – DTSA). Factors considered include policies, region, country, technology, level of technology
at destination vs. U.S. systems and countermeasures, end-user and end-use history, military operational
impact, inter-operability requirements, foreign availability of like systems, and classified data transfers.
An exemption may be available if a US Government agency as “Sponsor” requests a Mines Researcher to
perform work under an ITAR exemption. Mines must be notified at the earliest possible point to determine
applicability of the exemption and assessment by the compliance/ORA offices. A license exemption wil not
be approved if all of the requirements of ITAR are not met. Further, any applicable shipping documentation
must reference the exemption.
Foreign National Employee may require license under ITAR.
ITAR requirements for a foreign-national employee license are on the State Department’s website at
www.pmddtc.state.gov. Mines’ compliance offices should be contacted to this review and guidelines for
foreign national employment.
Office of Foreign Assets Control (OFAC) [U.S. Dept. of Treasury]
OFAC administers and enforces economic sanctions/programs primarily against countries and/or groups of
individuals, such as terrorists and narcotics traffickers, restricting imports, exports and other transactions
(e.g. monetary or financial). See Dept. of the Treasury, OFAC, @ 31 CFR Part 500. This function started
during WWI to stop Germany from repatriating funds they commandeered or absorbed after invasions.
Today OFAC maintains a “Specially Designated Nationals” and Blocked Persons listing ("SDN list") that
includes over 6,000 names of companies and individuals who are connected with the sanctions targeted,
and these are continual y updated. Multiple U.S. statutes and U.N. Resolutions also guide the OFAC
EXPORT REVIEW PROCEDURES GUIDE
sanctions/prohibited transactions. See OFAC Resource Center.
Sanctions/Prohibited Transactions. The sanctions can be either comprehensive or
selective, using the blocking of assets and trade restrictions to accomplish foreign policy and national
security goals. “Prohibited Transactions” include trade or financial transactions and other dealings in
which “U.S. persons” may not engage unless authorized by OFAC or expressly exempted by statute. U.S.
persons include all branches, subsidiaries, and controlled affiliates of US organizations, wherever located.
See OFAC Faq's #3. Because each program is based on different foreign policy and national security goals,
prohibitions may vary between programs. Sanctions may be against areas such as Crimea (Ukraine/Russia
areas), Sudan/South Sudan, or sanctions may be topical, such as by Industry (e.g. cyber-related sanctions.)
Travel to embargoed countries (Cuba1, Iran, North Korea, Syria and Sudan) related to one’s
position or activities at Mines.
Professional Conferences: special note should be taken regarding speaking,
lecturing, or sharing information at professional conferences if the conference occurs in sanctioned or
embargoed areas, or if the conference will have attendees from an embargoed country. Generally, speaking
at professional conferences in embargoed countries requires the prior approval of Office of Foreign Assets
Control (OFAC) in the form of applying for and obtaining a license for sharing of the information.
Advance Application for License. OFAC licenses must be requested at least three (3)
months in advance of travel, due to the time required to process the requests. Travel may not occur
without an OFAC license in hand, where required.
Physical items. Other export licenses (e.g., BIS) may be required in addition to an
OFAC license for any physical items (e.g., laptops, cameras, GPS, equipment on CCL, etc.) that wil be (hand)
carried to an embargoed country. (e.g., TMP or BAG)
Personal travel that is not associated with one’s position at Mines (i.e. family vacation)
usually will not require a license. However, prior to travel consider anything you are taking or sharing while
abroad, that may require a license.
E. Data or Information Policy
The Mines’ Data Classification Policy provides that Export Controlled Data will be treated at least as
“Confidential” information under the Mines’ policies and procedures.
F. Potential Penalties and Sanctions
The penalties for unlawful export of items or information can be severe. Table 5 below represents the main
penalties or sanctions available from the three main agencies described in this manual in the event of a
violation (including, civil penalties, administrative penalties and criminal penalties)2:
1 Even though Cuba and Iran have amended status, there are stil embargoes in place. The requirements are
constantly being updated by country or region. Please check with ORA or Office of Compliance regarding travel
to any embargoed country or a country that you are unsure of regarding status.
2 81 FR 36791 June 08, 2016, Civil Monetary Penalties wil increase with inflation starting august 1, 2016, 81 FR
36791 based on the 2015 passage of the Federal Civil Penalties Inflation Adjustment Act (updating the 1990 Act
of the same name). Some violations may reach over US$1M per violation.
EXPORT REVIEW PROCEDURES GUIDE
Regulations Possible Penalty (Civil/Administrative) Possible Penalty (Criminal)
$10K to Civil penalties may be assessed;
$1 million or 5 times value of export,
administrative monetary penalties can reach whichever is greater/ violation to university;
Commerce) $12,000 per violation, and $120,000 per
$250K or imprisonment up to 10 years, or
violation in cases involving items controlled
both for individual;
for national security reasons
20 years imprisonment and $1M/violation
denial of export privileges and/or exclusion
from practice or forfeiture of goods
Up to $500K/violation to University;
Up to $1M/violation to University;
up to $500K/individual;
Up to 10 years imprisonment/violation and
Civil penalty can be in addition to or in lieu of possibly $250K/individual
Denial of privilege or forfeiture of goods
$55K for each violation to University and/or Up to $20 mil ion depending on violation to
International Emergency Economic Powers Up to $1M, or 20 years imprisonment, or both
Act violation up to $250,000 or twice the to individual
amount of the underlying transaction for
Foreign Narcotics Kingpin Designation Act
violations can range up to $1,075,000/each
Table 4 Regulations & Possible Penalties
As mentioned in the section above on Additional Agencies, several other agencies may have jurisdiction
when nuclear items, equipment, or technology are involved (e.g., (NRC, DOE, USPTO). Please consult with
ORA and/or Office of Compliance to determine appropriate agency jurisdiction. For example, the DOE
National Nuclear Security Administration (NNSA) Office of Non-Proliferation and Arms Control issued a
guidance document in 2015 that provides information for anyone interested in transferring peaceful
nuclear technology, data, or assistance to a foreign person or entity/destination. But it is complicated, so
please contact the ORA or Office of Compliance for more information and determination of whether or not
the item, equipment, technology, software requires a License, including general or specific authorization.
There are also potential requirements in meeting international requirements or safety conventions.
G. Continuing Projects
For continuing projects involving export controls, Mines will work with the PI/faculty/employee on
obtaining any necessary license renewals for the project and employees or personnel working on the
project. The PI/faculty/employee wil need to contact ORA to inform them of the continuation and tracking
of licensing that may be required. This includes changes such as, but not limited to: adding or removing
employee or personnel names to projects, adding entities/personnel that require screening, adding new
equipment to a project that may have ECCN or other tracking numbers and requirements, etc.
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