EXPORT REVIEW PROCEDURES GUIDE

IV. EXPORT LICENSES: MANAGEMENT AND PLANS
When a tangible good, equipment, technology, or software is ready for export to another country, and the
item is identified as being on the Commerce Control List (CCL) with an ECCN, then one method to al ow for
legal transfer of the item or technology is to obtain a License from the U.S. Agency. Triggers for Export
Licenses may include, but not be limited to, these situations:

• Research involving
o the use of export restricted information obtained from external sources;
o collaborations with foreign nationals at Mines or abroad;
o travel or field work done abroad;
o the transfer or shipment of tangible items or equipment abroad;
o the provision of financial support or services outside the U.S.
Presentations at meetings or conferences of unpublished information not protected under the
Fundamental Research (FRE) or Educational Information exclusions.
Imports or re-exports are also considered for purposes of licensing under these reviews. Not
surprisingly other countries may have licensing requirements that differ from those in the U.S. and
must be considered when importing or re-exporting.

A.
Seek & Obtain a License
If an Export License is required, it is sought by Mines through ORA or Office of Compliance in collaboration
with a PI/Mines’ personnel. The Mines’ Empowered Official is the authorized Mines’ official to seek a
license. Mines and the employee will work together in order to properly comply with the limitations or
provisos required in any approved government license.
B. License Management
Mines is the applicant for (and recipient) of any necessary licenses, limitations, requirements or restrictions.
Mines will forward a copy of the approval, including any limitations and provisos to the Principal
Investigator for review. ORA will facilitate the Mines license application and management if involving a
grant, contract, or agreement to Mines that is managed by ORA.

1.
Required Markings: All information or data transferred under a ITAR license must be
marked with the fol owing statement: “This technical data is control ed by the US ITAR. Exemption
22 CFR 125.4(b)(2) and insert (TAA number) applicable.”
2. Shipment: Data shipped by courier must contain the following statement on the airway
bill: “These commodities are authorized by the U.S. Government for export only to (insert country)
for use by (insert licensee). They may not be transferred, transshipped on a non-continuous
voyage, or otherwise disposed of in any other country, either in their original form or after being
incorporated into other end-items, without the prior written approval of the U.S. Department of
State.”
3. Recordkeeping: ITAR section 123.26 requires that Mines maintain records of all technical
data transferred under a TAA. The PI must maintain a log of all transfers and retain the records for
a period of five (5) years after the last transaction regardless of the jurisdiction (ITAR or EAR).

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4.
Notice to ORA (Changes). The PI shall provide advance notice of any change in the scope
of the program, any additional funding, or addition of a new party, so that Mines can file for a
license amendment, which requires ODTC approval. If an item will result from the work under the
Technical Assistance Agreement, a DSP-5 License for Permanent Export of Unclassified Defense
Articles and Related Unclassified Technical Data may be required prior to shipping. See Guidelines
for Completing Department of State DSP-5 Form.
5. Foreign Visitors and Compliance. Foreign visitors to campus should be screened
sufficiently in advance of the planned visit and prior to arrival. See §V. VISITORS & SCHOLARS; and
see International.mines.edu. A VISA from the State Department is not the same as approval to
receive a transfer of certain information or to access certain equipment.

B.
Technology Control Plans (TCP) and Guidance Forms
A Technology Control Plan (TCP) is required for work that is export controlled, export issue, or other
restrictions. A TCP sets out necessary procedures to manage the access limitations to the information that
is considered sensitive and must be prepared and approved prior to the handling of export-controlled
information, potentially prior to the start date of a project.
1. A TCP is general y used when:
• Projects or activities involve the receipt of confidential or proprietary from an outside party
or sponsor, such as through a nondisclosure agreement (NDA/CDA) or sponsored research
agreement;
• Projects or activities are not considered Fundamental Research or under an FRE/Public
Domain Exclusion; or
• Projects or activities involve technology and software associated with export-controlled
equipment.
2. TCP Preparation and Contents:
The TCP wil document compliance with any required agreement terms and conditions and contains the
following elements:

Sponsored project title;

PI name and department/unit;

Research location (lab/building);

Brief statement of need for plan;

Description of plan for protection of technology; and

Principal Investigator(s) signature(s).

3. Compliance.
The TCP wil be prepared in conjunction with ORA, signed by the PI, ORA, and other units if necessary. The
TCP shall include at least the following:
a. a physical and information security plan;
b. employees or personnel screening procedures; and
c. a process for carrying out the research in a controlled environment.
The TCP requires ORA approval prior to implementation. Compliance with the TCP is the responsibility of
the PI, and Mines ORA and Compliance are here to assist with the process. For more information and
assistance with a TCP, please contact ORA.
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C. Non-Discrimination in Hiring and Admissions

Mines does not discriminate against any person by reason or basis of age, gender, race, ethnicity, religion,
national origin, disability, sexual orientation, or military veteran status is prohibited. No discrimination in
admission, application of academic standards, financial aid, scholastic awards, or any terms or conditions of
employment shall be permitted. When navigating this difficult area of export control compliance and non-
discrimination, the hiring or admission process can be a challenge. Please seek advice and counsel from HR,
Admissions, Office of Compliance, or Office of Legal Services when trying to navigate through these areas.
A blanket “citizens only” hiring or recruitment policy would likely constitute citizenship status
discrimination because it is overly broad and would impact hiring for positions not subject to the legal
restrictions under US law (IRCA). However, the person seeking employment must be employable in the US;
either have a Green card or other appropriate VISA status in order to be eligible for employment. As with all
hiring or admissions decisions, please contact the appropriate offices to obtain training or clarification
regarding interviewing/reviewing applicants and how these laws intersect.

i.
US Agency Guidance.
In 2016, the U.S. Department of Justice, Office of Special Counsel for Immigration-Related Unfair
Employment Practices (the “OSC”) issued a technical assistance letter to help navigate between export
controls and non-discrimination requirements. However, there are nuances that may add confusion
surrounding these requirements in other areas. The Deemed Export rule, enforced by BIS, identifies the
“release of technical data to a foreign person within the United States” as an Export. Similarly, if a
product/item is classified as a Defense Article under ITAR, then usual y the entity would need an export
license from DDTC to release technical data related to that product/item to an employee who is a Foreign
Person. Release to Foreign Persons of technology related to non-defense articles is subject to the Export
Administration Regulations (“EAR”) and may need a license from BIS, depending upon the specific product
and foreign nationality involved. (OSC Letter March 31, 2016, accessed 10/12/2016 at
https://www.justice.gov/crt/file/837281/download)

ii.
ITAR Clarification.
ITAR does not impose requirements on U.S. employers concerning the recruitment, selection, employment,
promotion, or retention of foreign persons; rather, ITAR requires that employers obtain export licenses for
non-U.S.-person employees if their positions require access to information governed by ITAR. OSC guidance
states the “ITAR does not limit the categories of work-authorized non-U.S. citizens an employer may hire.”
[End of Section]

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