Export Controls

About Export Controls

Export Controls: WHO, WHAT, WHEN, WHERE, & WHY

Roles and Responsibilities

Sponsored Research

International Travel

Training

Reporting Violations

Penalties for Noncompliance

Export Controls Compliance Program Manual

Laws, Regulations, Policies, Rules, and Procedures

Forms and Resources

Definitions

About Export Controls

The export of certain items and information is regulated for reasons of national security, foreign policy, prevention of the spread of weapons of mass destruction, and for competitive trade reasons, in accordance with United States laws and regulations, the Texas A&M University System (System) regulations, and agency rules and procedures.

Texas A&M University-Kingsville (TAMUK) is committed to operating in compliance with the United States (U.S.) Department of Commerce Bureau of Industry and Security (BIS) Export Administration Regulations (EAR), the U.S. Department of State Directorate of Defense Trade Control (DDTC) International Traffic in Arms Regulations (ITAR), as well as those imposed by the U.S. Department of Treasury Office of Foreign Assets Control (OFAC).

Export Controls: WHO, WHAT, WHEN, WHERE, & WHY

WHO?

Who regulates export control laws?

Export control laws regulate the conditions under which certain physical items and information can be transmitted to either foreign persons or foreign entities in the United States or abroad. The purpose of these associated laws and regulations are to protect national economic, security, and foreign policy interests. Export regulations derive from several branches of the U.S. Federal Government:

WHAT?

What are exports?

Exports generally include: actual shipment of any covered goods or items; electronic or digital transmission of any covered goods, items, or related goods or items; any release or disclosure, including verbal disclosures and visual inspections, of any technology, software, or technological data to any foreign person or entity; and the actual use or application of a covered technology on behalf of or for the benefit of a foreign entity or person.

Exports occur when a controlled physical item or controlled information is transmitted outside the borders of the United States, or when a controlled physical item or controlled information is transmitted to a foreign person in the United States. Furthermore, the transfer of technology, software, or technical data to foreign nationals inside the United States is considered a deemed export.

WHEN?

When does it apply?

There are several exclusions to export control laws and regulations. Most university activities will fall under exclusions to export control regulations (not all exclusions apply outside the U.S.):

  • Fundamental Research Exclusion (FRE)
    • Applies to controlled information, but not to controlled physical items
    • Does not apply outside the U.S.
  • Public Domain/Public Information Exclusion
  • Educational Information Exclusion

Although the exclusions may apply to TAMUK activities, it is important to remember that because of the complexity of the U.S. export control regulations, potential export–controlled activities should be evaluated on a case–by–case basis.

WHERE?

Where could export control regulations be violated?

It is imperative that TAMUK employees recognize that export control regulations apply broadly. Some functions that could potentially be subject to export controls include (but are not limited to): travel, visiting scientists, equipment and material surplus and disposal, international collaboration, sponsored research, nondisclosure, material transfers, licenses for intellectual property, and distance education.

WHY?

Why do we have export controls?

The purpose of export control laws and regulations is to protect national economic, security, and foreign policy interests. TAMUK is committed to promoting a culture of compliance in regards to all U.S., System, and University export control regulations, policies, and rules.

Roles and Responsibilities

Export control laws regulate the conditions under which certain information, technologies, and commodities can be transmitted to foreign persons or entities in the United States or abroad. In addition, export control laws and regulations restrict or prohibit the transaction of business with certain countries, persons, and entities that have been sanctioned by federal agencies as a threat to important U.S. interests. Most exports do not require specific approval from the federal government. Certain exports, however, require a license. Others are prohibited.

Texas A&M University—Kingsville, the Institution

It is the policy of TAMUK to comply with United States export control laws and regulations while maintaining an open research environment that welcomes the participation of researchers from around the world.

Individual Responsibility

All university employees and students, visiting scientists, postdoctoral fellows, and other persons retained by or working at or for the university must conduct their affairs in accordance with United States export control laws and regulations. While compliance with applicable legal requirements is important, it is equally important to maintain an open research environment that welcomes the participation of researchers from around the world as part of the university’s mission. To maintain this balance, university personnel must be familiar with United States export control laws and regulations, including important exclusions and exemptions, as they relate to their responsibilities and research. Depending upon the nature of job activities and functions, university personnel may be required to participate in formal training as determined by the university’s empowered official(s) and/or an employee’s supervisor. There are severe institutional and individual sanctions for violations of export control laws and regulations, including the loss of research funding, loss of export privileges, as well as criminal and civil penalties.

University Administrators

All university employees with managerial or supervisory authority over foreign persons or projects involving controlled information or controlled physical items should view export control compliance as an important part of their day-to-day responsibilities. Because of the complexity and far-reaching impact of export controls issues, all university employees are required to take the Export Controls Office's basic export control online training course (TrainTraq Course No. 2111212) at least once every two years.

Empowered Official

The university’s Director of Compliance (DoC) is the university’s “empowered official” for all purposes relating to applicable federal export control laws and regulations. The empowered official is responsible for license applications and other approvals required for compliance with export control laws and regulations, and serves as the university’s representative and point of contact with such agencies. The empowered official is the university official authorized to sign license applications and other authorizations required by export control laws and regulations on behalf of the university and to bind the university in any proceedings before government agencies with export control responsibilities. The DoC is the university official with final responsibility for compliance with export control laws and regulations.

Export Control Delegates

The Compliance Office (CO), in cooperation other appropriate offices, is responsible for directing and monitoring the university’s export control compliance program, record keeping, and implementing procedures and/or guidelines to comply with federal export control laws and regulations, including developing, implementing, and updating an export control compliance program manual.

When requested, the CO will assist employees in export control assessments to determine export control compliance obligations with respect to university activities involving foreign persons or entities or international activities and to determine the applicability of any exclusions provided by law. The CO also assists with and conducts restricted party and technological screening using the export control screening software licensed by the university.

Sponsored Research

The Office of Compliance will work in conjunction with the Office of Research & Sponsored Programs (ORSP) to promote export control compliance in sponsored research. The ultimate responsibility in regards to identification of potential export control violations for sponsored research agreements is that of the principal investigator and associated key personnel. If a potential export control issue arises or is identified, OSRP, Office of Compliance, and the primary investigator (PI) will work closely to resolve and determine the plan of action.

International Travel

TAMUK acknowledges the need for international travel by its employees to conduct official business and/or research. Because of the constant and evolving danger associated with international travel, awareness in this area of risk is imperative. In accordance with Texas A&M University System Regulation 21.01.03, Disbursement of Funds, TAMUK is committed to both maintaining accountability and conserving public funds. All travel must be submitted and approved through e-Travel/Concur before travel commences.

TAMUK employees are individually responsible for identifying potential export–controlled items and information when preparing for a trip abroad. If a traveler indicates that they will travel abroad with export–controlled items or information, TAMUK Compliance will work closely with the traveler and associated parties to determine the next plan of action to ensure compliance with export control laws, regulations, policies, and rules. Additionally, it is strongly recommended that travelers planning to take a trip abroad take System TrainTraq Course Number 2111212, Export Controls, and 2111728, International Travel.

Training  

The basic course for export controls & embargo training (course number 2111212) is available through TrainTraq. Depending on the nature of an individual’s activities and/or job functions, a university employee may be required to take supplemental export control training as deemed appropriate by the individual’s supervisor and/or the empowered official.

Supplemental Training

These supplemental export control overviews may be valuable for university employees who have managerial or supervisory authority over foreign persons or projects involving controlled information or controlled physical items.

  • April 10, 2008 Export Controls Training (April 10, 2008) - Export Controls Training on Deemed Exports taught by Alexander K. Lopes, Director of Deemed Exports and Electronics, Bureau of Industry and Security, U.S. Department of Commerce.
  • "Don't Let This Happen To You" - An Introduction to U.S. Export Control Law, based on actual investigations of export control and anti-boycott violations, written by the U.S. Bureau of Industry and Security.
  • Bureau of Industry and Security, U.S. Department of Commerce - Seminars and Training - BIS training seminars are offered from experienced U.S. Government officials about export control policies, regulations and procedures. BIS offer one and two-day core courses on the Export Administration Regulations (EAR) as well as in-depth courses on special topics of interest to the exporting community. Instructors are experienced export administration and regulatory policy specialists, engineers and enforcement personnel from BIS's Washington, D.C. headquarters and field offices, as well as representatives from other U.S. government agencies as appropriate. BIS also offers an extensive library of online training modules and pre-recorded webinars. BIS also offers export control conferences where senior U.S. government officials discuss current issues and trends in export control policies, regulations and practices. These conferences are intended for the experienced export control practitioner.

Reporting Violations

All TAMUK employees and affiliates have the responsibility to report suspected violations. Suspected violations should be reported to the TAMUK Empowered Official, or via the Risk, Fraud, and Misconduct Hotline. There are severe institutional and individual sanctions for violations of export control regulations, including loss of export privileges, criminal and civil penalties, and loss of research funding.

Texas A&M University—Kingsville Export Controls Empowered Official:

Penalties for Noncompliance

Export control issues may arise on many fronts, and non-compliance with the statutory and regulatory requirements carry heavy penalties, both civil and criminal. It is incumbent upon everyone to learn how to recognize export control issues when they arise in our daily work and to be knowledgeable of the resources available on campus to deal with them.

Important Note:  Unlike other situations in which the university might accept liability and protect its employees, in this case individuals are criminally liable for personally violating the ITAR/EAR/OFAC export controls or embargoes.

  • ITAR Penalties
    • Criminal: up to $1 million per violation and up to 10 years in prison
    • Civil: seizure and forfeiture of articles, revocation of exporting privileges, fines up to $500,000 per violation
  • EAR Penalties
    • Criminal: $50,000 to $1 million or five times the value of export, whichever is greater, per violation, up to 10 years in prison
    • Civil: loss of export privileges, fines of $10,000 to $120,000 per violation
  • OFAC Penalties
    • Criminal: up to $1 million and 10 years in prison
    • Civil: $12,000 to $55,000 per violation

Laws, Regulations, Policies, Rules, and Procedures 

Helpful Links

Forms and Resources

University Notifications

Forms

Resources

Definitions

Commerce Control List: A list of commodities and related technical data that are principally commercial in nature and deemed not appropriate for inclusion on the U.S. Munitions List. Some of these controlled commodities are referred to as “dual-use.” That is, they have an actual or potential military as well as civilian, commercial application. Export of these articles is implemented in the Export Administration Regulation (EAR).

Controlled Information: Controlled information is information about controlled physical items. This includes information which is required for the design, development, production, manufacture, assembly, operation, repair, testing, maintenance or modification of controlled physical items and may be released through visual inspection, oral exchanges, or the application of personal knowledge or technical experience with controlled physical items. This includes information in the form of blueprints, drawings, photographs, plans, instructions and documentation. Also included in this definition are non-physical items (software and algorithms, for example) listed under EAR and ITAR. (See 15 CFR 730-774 and 22 CFR 120-130 for further details.) Controlled Physical Items: Controlled physical items are dual use technologies listed under EAR and defense articles listed on ITAR’s USML. (See 15 CFR 730-774 and 22 CFR 120-130 for further details.)

Controlled Physical Items: Controlled physical items are dual use technologies listed under EAR and defense articles listed on ITAR’s USML. (See 15 CFR 730-774 and 22 CFR 120-130 for further details.)

Deemed Export: Any transfer to a citizen or permanent resident of a foreign country, regardless of where the transfer occurs, is deemed by the U.S. government to be an export to that country. Exceptions of who can receive a transfer are permanent U.S. citizens, i.e., foreign nationals with "green cards, or "protected individuals," i.e., foreign nationals granted political asylum in the U.S.

Defense Service: (1) The furnishing of assistance (including training) to foreign persons, whether in the U.S. or abroad in the design, development, engineering, manufacture, production, assembly, testing, repair, maintenance, modification, operation, demilitarization, destruction, processing or use of defense articles; or (2) The furnishing to foreign persons of any technical data controlled under the ITAR, whether in the U.S. or abroad.

Dual Use: Goods and technology that are not inherently military in nature, and are primarily and inherently commercial or potentially commercial in nature, but that the government has decided may have a dual use for a military purpose, when received or obtained by particular individuals, or for particular purposes, or within particular countries. Dual use is a concept underlying the government's rationale for what items and information, and what individuals and what uses, may require a license. In addition, there are some "purely commercial" items and information that require a license under the EAR.

Educational Information: Information released through instruction in catalog courses and associated teaching laboratories of academic institutions (15 CFR 734.9).

Export: An export occurs when a controlled physical item or controlled information is transmitted outside the United States borders or when a controlled physical item or controlled information is transmitted to a foreign person in the United States. When a controlled physical item or controlled information is transmitted to a foreign person in the United States, it is known as a deemed export. The term “export” is broadly defined. It generally includes (1) actual shipment of any controlled physical items; (2) the electronic or digital transmission of any controlled information; (3) any release or disclosure, including verbal disclosures and visual inspections, of any controlled 15.02 Export Controls Page 5 of 5 information; or (4) actual use or application of controlled physical items or controlled information on behalf of or for the benefit of a foreign entity or person anywhere. Complete definitions of the term “export” are contained in the federal regulations.

  • The definition of Export is determined by the appropriate references as indicated by EAR and ITAR.
  • EAR:  Actual transport or shipment of items out of the U.S. or release of technology or software subject to EAR to a foreign national in the U.S. as described in EAR.
  • ITAR: 1) Sending or taking a defense article out of the U.S. in any manner except by mere travel outside of the U.S. by a person whose personal knowledge includes technical data. 2) Transferring registration, control, or ownership to any foreign person of any aircraft, vessel or satellite covered by the U.S. Munitions List whether in the U.S. or abroad. 3) Disclosing (including oral or visual disclosure) or transferring in the United States any defense article to an embassy, any agency or subdivision of a foreign government (e.g., diplomatic missions). 4) Disclosing (including oral or visual disclosure) or transferring technical data to a foreign person, whether in the U.S. or abroad. 5) Performing a defense service on behalf of, or for the benefit of, a foreign person, whether in the U.S. or abroad. 6) A launch vehicle or payload shall not, by reason of the launching of such vehicle, be considered an export. (See 22CFR 120.17 for details.)

Foreign Person:  For export control purposes, a foreign person includes any individual in the United States in nonimmigrant status (i.e., H-1B, H-3, L-1, J-1, F-1, B-1, Practical Training), and individuals unlawfully in the United States. A foreign person is also any branch of a foreign government or any foreign corporation or group that is not incorporated or organized to do business in the United States. For export control purposes, a foreign person is not an individual who is a United States citizen, lawful permanent resident of the United States, a refugee, protected political asylee or someone granted temporary residency under amnesty or Special Agricultural Worker provisions

Fundamental Research:  Information, including non-encrypted software code, resulting from basic and applied research in science and engineering conducted at TAMUK that is ordinarily published and shared broadly within the scientific community and that is not restricted for proprietary reasons or specific national security reasons.

Individual Responsibility: All employees and affiliates of TAMUK are ultimately individually responsible for ensuring compliance with U.S. export controls regulations, as well as System policies and regulations, and must conduct their affairs in accordance.

Limited Access Authorization:  Security access authorization to confidential or secret information granted to non-U.S. citizens requiring such limited access in the performance of their duties.

Protected Individuals:  8 U.S.C. 1324b(a)3 defines a Protected Individual as an individual who is:

  • a citizen or national of the United States, or
  • an alien who is lawfully admitted for permanent residence, is granted the status of an alien lawfully admitted for temporary residence under section 1160(a) or 1255a(a)(1) of this title, is admitted as a refugee under section 1157 of this title, or is granted asylum under section 1158 of this title; but does not include (I) an alien who fails to apply for naturalization within six months of the date the alien first becomes eligible (by virtue of period of lawful permanent residence) to apply for naturalization or, if later, within six months after November 6, 1986, and (ii) an alien who has applied on a timely basis, but has not been naturalized as a citizen within 2 years after the date of the application, unless the alien can establish that the alien is actively pursuing naturalization, except that time consumed in the Service’s processing the application shall not be counted toward the 2-year period.

Technical Data: Information of any kind that can be used, or adapted for use, in the design, production, manufacture, utilization, or reconstruction of articles or materials. These data may take a tangible form, such as a model, prototype, blueprint, or an operating manual; or these data may take an intangible for such as technical services.

U.S. Person: can be a:

  • U.S. citizen
  • permanent resident who does not work for a foreign company, a foreign government, or a foreign governmental agency/organization
  • political asylee
  • part of the U.S. government
  • corporation, business, organization, or group that is incorporated in the U.S. under U.S. law
  • U.S. Person (From the ITAR – for export control purposes):  A Person who is lawful permanent resident as defined by 8 U.S.C. 1101(a)(20) or who is a protected individual as defined by 8 U.S.C. 1324b(a)(3); any corporation, business association, partnership, society, trust, or any other entity, organization or group that is incorporated to do business in the U.S.; and/or any governmental (federal, state or local) entity.
  • U.S. Person (From the NISPOM – for classified information purposes):  Any form of business enterprise or entity organized, chartered or incorporated under the laws of the U.S. or its possessions and trust territories and any person who is a citizen or national of the U.S.

The compete definition of these terms are available at: Export Administration Regulation Downloadable Files