Export Control Manual

The purpose of this manual is to provide guidance on US export controls laws and regulations, identify key export compliance issues related to activities conducted within the University, and to describe how BU implements its export control policies and procedures. The policies and procedures outlined in this manual serve as BU’s standard for conducting research and international activities, and provides a comprehensive program of internal controls, safeguards and measures to minimize risk of potential violations of applicable export control regulations and institutional policies.

I. Policy Statement

It is the policy of Boston University (“BU” or “University”) to comply with US export control laws. The US export control agencies place responsibility on the University to understand and ensure compliance with export control laws and regulations , it is therefore the responsibility of faculty, staff and students to be aware of and comply with U. export control laws, as well as the University’s policies and procedures.

II. Purpose

This Export Control Manual (the “manual”) is intended to provide guidance on US export controls laws and regulations, identify key export compliance issues related to activities conducted within the University, and to describe how BU implements its export control policies and procedures. The export compliance policies and procedures outlined in this manual serve as BU’s standard for conducting research and international activities, and provides a comprehensive program of internal controls, safeguards and measures to minimize risk of potential violations of applicable export control regulations and institutional policies.

This manual is not intended to serve as, and should not be considered, formal legal advice. Specific questions about export control compliance should be directed to the BU Export Control Officer (“ECO”) at export@bu.edu.

III. Scope of Manual

This manual applies to all persons (e.g., faculty, staff, students, employees and contract personnel) responsible for conducting research, teaching, training and related activities at or under the jurisdiction of Boston University. This manual provides an overview of US export controls, key issues related to universities, and outlines BU policies and procedures.

IV. Introduction to Export Control Laws

Export control laws are a complex set of federal government regulations designed to protect US national security, prevent the proliferation of weapons of mass destruction, advance US foreign policy, support regional stability, protect human rights, maintain US economic competitiveness, and implement anti-terrorism and crime controls. To understand export control regulations, it is important to understand what is considered an export. An export is any transfer of an item or information to anyone, including US, citizens, in a foreign country or to a foreign national located within the United States.

Export control laws govern how information, technologies, software, technical data and commodities may be transferred to anyone outside of the United States or to foreign nationals within the United States. Export controls restrict the export of products and technology based on the type of product, the party that will use it, the destination of the export, and the end use. Technology includes technical data, such as blueprints and manuals, as well as services (including the transfer of knowledge) and training.

Although the majority of activities at Boston University are exempt from export control laws due to the fundamental research exemption, export controls do apply to the following areas:

• • Research (not fundamental) with controlled technologies, software, data or equipment
  • International Travel
  • International Shipping
  • Financial Transactions
  • Educational Classes

The three principal government agencies that regulate exports are:

1. The US Department of the Treasury, which administers exports to embargoed countries through its Office of Foreign Assets Control (“OFAC”). The OFAC regulations govern travel and transactions (e.g., financial, collaborations, research, and shipping) related to countries where the US maintains economic and trade sanctions. Trade sanction programs exist against targeted foreign countries and regimes, terrorists, international narcotics traffickers, those engaged in activities related to the proliferation of weapons of mass destruction, and other threats to the national security, foreign policy or economy of the US The level of restriction or prohibition of an existing sanction program is influenced by foreign relations and national security. The majority of activities with these countries require an authorization. More details are provided in Appendix A of this manual.

2. The US Department of State, which administers the International Traffic in Arms Regulations (ITAR) through its Directorate of Defense Trade Controls (DDTC). ITAR regulations control the export and temporary import of defense articles, data and services. A defense article is any item or technical data that is specifically designed, developed, configured, adapted, or modified for military or space use. Defense services are services provided to foreign persons, whether in the US or abroad, in the design or development of defense articles. This service may be in the form of providing training, engineering, production, testing, repair, maintenance, operation, destruction, or processing of a defense article.

ITAR regulations apply to any item, service, or technical data that is listed on the United State Munitions List (USML). The definition of technical data is broad and includes technical data recorded or kept in physical form (e.g., notebooks, computer disks), models, mock-ups, blueprints, photographs, plans, instructions, software, etc.). Technical data does not include information concerning general scientific, mathematical or engineering principles commonly taught in schools, colleges, and universities or information in the public domain. The ITAR regulations are covered in more detail in Appendix B of this manual.

3. The US Department of Commerce, which administers the Export Administration Regulations (EAR) through its Bureau of Industry and Security (BIS). EAR regulations are designed to control items, technologies, materials or software that are considered to be “dual use,” that is, as having both civil and military uses. Examples of covered technologies include global positioning systems, pathogens, toxins, explosives, propulsion systems, space vehicles, telecommunication, and information security. In general, any physical item made in the US will be subject to the EAR unless the item qualifies for an exemption or is under another jurisdiction, such as ITAR. While almost every item located within the US is controlled on the EAR, most do not require an export license. Items and technical data that are subject to the EAR are listed on the Commerce Control List (CCL). EAR regulations are discussed in more detail in Appendix C of this manual.

The ITAR and EAR regulations subject to export control laws and regulations apply to University activities that involve:

• The transfer of specific physical items, information, and the provision of specific services (e.g., consulting on ITAR controlled technology) to persons and entities outside the United States (these are referred to as “exports”).
• The disclosure of specific information (e.g., technical specification or data) and the provision of specific types of services, to foreign nationals inside the United States (termed as “deemed exports”).

While these are the three main agencies that regulate exports, other agencies also have jurisdiction over certain items and activities subject to export controls (e.g., Department of Energy, Drug Enforcement Administration, Nuclear Regulatory Commission, US Census Bureau, and US Customs and Border Protection). Export requirements for these other agencies must also be met to ensure compliance with US export control regulations.

V. Export Controls and University Research

US national security and economic interests are heavily dependent on technological innovation and advantage. Many of the nation’s leading-edge technologies, including defense-related technologies, are discovered by US citizens and foreign nationals in US university research and university-affiliated laboratories. US policymakers recognize that foreign nationals have made substantial contributions to US research efforts, but the potential transfer of controlled defense or dual-use technologies to their home countries could have significant consequences for US national interests. The US export control agencies place responsibility on the University to understand and comply with export control laws and regulations.

Export controls present unique challenges to the University because they require balancing concerns about national security and US economic vitality with traditional concepts of unrestricted academic freedom and publication and dissemination of research findings and results. University researchers and administrators need to be aware that these laws may apply to research, whether sponsored or not, and that they might be personally liable for any violations.

Export of a controlled item without proper authorization (e.g., license or license exception) may result in criminal and civil penalties for the university and the responsible individual. This includes deemed export violations, which are subject to the same federal penalties as physical exports. Penalties may include seizure of items, loss of export privileges, debarment from participating in future federal contracts, fines, or jail time.

VI. Roles and Responsibilities

The following offices and individuals at BU have responsibilities with regards to export controls

A. Empowered Officials

The Associate Vice President of Research Compliance (“AVPRC”) is the University’s Empowered Official (“EMO”) for export control matters. In this capacity, the EMO has the authority to represent the University to export control regulators in matters related to registration, licensing, commodity jurisdiction and classification requests and voluntary or directed disclosures. Certain oversight functions may be delegated, but only the EMO is authorized to sign documents on behalf of the University in any proceedings before DDTC, BIS, OFAC or other agencies. The EMO also has independent authority to inquire into any aspect of a proposed export or temporary import by the University, verify the legality of the transaction and the accuracy of the information and deny any license application or other request for approval. The EMO is required to take eight hours of annual export control and compliance training. This training may be in the form of online training, in-house seminars, or external seminars and conferences.

B. Export Control Officer

The University’s Export Control Officer (ECO) is appointed by the AVPRC and reports to the Executive Director of Research Compliance. The ECO is responsible for leading and managing BU’s Export Control Program (ECP) to ensure compliance with all applicable export control laws, regulations and institutional policy. The ECO directs and delegates the day-to-day operational management of the ECP. The ECO has the authority and the responsibility to implement the policies and procedures set forth in this Export Control Manual and should be consulted when questions related to export compliance or international shipping arise.

The ECO has the delegated authority to apply for export control licenses on behalf of the University and to represent the University to regulatory authorities in all matters pertaining to export control compliance. The ECO is responsible for developing and implementing policies and procedures set forth in this Manual.

ECO responsibilities include:

• Identifying areas at BU relative to research that are impacted by export control regulations.
• Developing control procedures to ensure research remains in compliance.
• Recommending procedures to senior administration to strengthen BU’s overall compliance.
• Monitoring, interpreting, and implementing regulatory changes and recommend policies and procedures accordingly.
• Reviewing terms of sponsored program agreements, material transfer agreements, and other non-monetary agreements.
• Providing assistance to PIs in identifying international components of sponsored program agreements, identifying potential export control issues in the proposed international component and verifying that the international entities and individuals are not restricted parties or specially designated nationals.
• Conducting restricted parties screening.
• Determining licensing requirements or exceptions as applicable.
• Submitting license applications, classification requests, and advisory opinions.
• Maintaining the export controls website.
• Maintaining transactional databases and record-keeping, including maintaining the University’s registration with the DDTC.
• Assisting PIs in developing a Technology Control Plan (TCP), in consultation with BU Information Security, for research involving export-controlled items or information to ensure compliance with export control regulations.
• Educating principal investigators, centers, and academic units about export control regulations and procedures followed at BU to facilitate understanding and compliance with export controls.
• Assisting investigators, researchers, and offices within BU when research or research results are export controlled.
• Providing export control support to other units within BU such as Purchasing, Travel, Global Programs, IRB, Human Resources, Financial Affairs, Office of the General Counsel and Technology Development.
• Conducting focused training and outreach on export controls.
• Managing the University laptop loaner program.

C. Research Compliance Office

The Research Compliance Office (RCO), in cooperation with other offices, is responsible for developing and implementing the procedures outlined in this manual. The ECO within the RCO has direct day-to-day responsibility for administering the University’s export control program.

D. University Export Controls Advisory Committee

The Export Control Advisory Committee (ECAC) is appointed by the AVPRC and provides guidance regarding export control issues at Boston University. The ECAC meets on annual basis, and more frequently if necessary.

ECAC responsibilities include:

• Advising the EMO
• Advising the ECO
• Monitoring the EPC
• Reviewing, prioritizing, and advising on identified areas of export control compliance risk
• Developing mechanisms to mitigate or eliminate unacceptable risk. Assisting in development of policies, guidelines, record keeping requirements, and training materials pertaining to Export Control issues
• Facilitating training and disseminating information
• Assisting with periodic program reviews and development of any corrective action plans required
• Reviewing the Export Control Manual at least every 3 years and recommending changes or improvements
• Facilitating communication about the importance of export regulatory compliance and policies among the University community, including provosts, deans, associate deans for research, center directors, administrative offices, global operations, and principal investigators

E. University Personnel

University personnel are responsible for complying with export controls as well as applicable University policies and procedures. The ECO and ECP assists University personnel in assessing export control requirements on a case-by-case basis. If a license is required for a proposed export related to University responsibilities or to the University’s business, the ECO facilitates coordination of the license application process. If a license is required, no export or deemed export can take place until a license is obtained.

F. Key University Managers

Academic deans, directors, and department heads share the responsibility of overseeing export control compliance in their respective schools, departments, centers, or institutes and supporting the ECP in implementing procedures as deemed necessary by the ECO for export control compliance. In addition, the directors of other BU offices or units including, but not limited to, Accounting, Environmental Health and Safety, Human Resources, Global Programs and Technology Development share the responsibility of overseeing export control compliance.

G. Principal Investigator (PI)

PIs have expert knowledge of the type of information and technology involved in a research project or other University activity (e.g., presenting at conferences and discussing research findings in class with fellow researchers or collaborators). PIs must ensure that they do not disclose controlled information or transfer controlled articles or services to a foreign national without prior authorization as required.

PI responsibilities include:

• Understanding their obligations under the export controls laws and participating in regular trainings to help identify export control issues.
• Identifying research activities in which export control issues might exist.Notifying the ECO/ECP of identified export control issues.
• Providing the ECO/ECP with all required documentation and guidelines provided by the contracting agency to ensure compliance with export controls.
• Assisting the ECO/ECP with classifying technology involved in the research or other university activity.
• Informing the ECO/ECP that a TCP is required, and in consultation with the ECO/ECP and Information Security, developing the TCP for any activity, data, or equipment where the need for such a plan is required;
• Identifying foreign nationals that may be involved and, if the research is subject to export restrictions, initiating the process of clearing foreign national participation well in advance to ensure that a license is obtained in a timely manner, or implementing proper measures to exclude foreign nationals from participation.
• Coordinating with the ECO/ECP to ensure that foreign nationals will be excluded from participation in an export-controlled project in accordance with the TCPs, unless the University applies for and obtains an export license from the relevant agency.
• If undertaking an export-controlled project, briefing the students and other researchers involved in the project of their obligations under export controls or requesting assistance from the ECO/ECP.
• Ensuring that all physical exports comply with export regulations, import requirements in the destination country, that all shipping paperwork is accurate, and records of all shipments are kept on file for at least 5 years from the date of export.

H. Central Offices

Many BU central offices provide assistance with export controls and work closely with the ECO/ECP in identifying export control issues and providing support for their solution. It is each central office’s responsibility to communicate and consult with the ECO/ECP.

These offices and their responsibilities include:

• BU Information Security (InfoSec) within Information Services & Technology (IS&T)
  • Helps to identify and manage risks to the security of BU data whether in paper or electronic form, including research data.
  • Assists with the developing TCPs

• Sponsored Programs (SP)
  • Provides a weekly report to the RCO listing all awards received and proposals submitted by BU.
  • Assisting PIs in reviewing the terms of a sponsorship agreement or grant to identify restrictions on publication and dissemination of the research results and negotiating out such restrictions.
  • Notifying the ECO/ECP when export controls issues are flagged.
  • Providing any additional application, award and supporting documents to the ECO/ECP during their review of export control issues

• Office of Technology Development (OTD)
  • Forwarding outgoing Material Transfer Agreements (MTAs) to the ECO/ECO for Restricted Party Screening (RPS).

• Industry Engagement
  • Contacting the ECO/ECP if export control issues are identified in Confidential or Non-Disclosure Agreements (CDAs, NDAs), Patent applications or other OTD documents.

• Global Programs
  • Providing strategic program support to international activities, including the University Cuba Travel Program.
  • Authorizing travelers to carry a General License letter to ensure full compliance with the law.
  • Working with faculty conducting international research and travel activities and referring to ECO for export control assistance.

• Sourcing & Procurement
  • Managing transfer of equipment. BU requires that suppliers provide notice before transferring controlled equipment, technology or software to the University.
  • Notifying the ECO/ECP of any purchases involving controlled equipment, technology or software.
  • Monitoring BU-registered suppliers and new suppliers through Visual Compliance for any restricted entities. If restrictions are detected, determining whether the supplier needs to be blocked in the procurement system, and if so, they are blocked, notes are added, and Accounts Payable is notified that the supplier is blocked from use by the BU shopper community.

• Charles River Campus (CRC) Institutional Review Board (IRB)
  • Forwarding relevant section of IRB applications pertaining to research outside of the US to the ECO/ECP for review. The ECO will coordinate export compliance with researchers, when applicable.

• International Student & Scholars Office (ISSO)
  • Strategizes and provides nonimmigrant visa sponsorship to international students, scholars, faculty, employees and visitors at Boston University.
  • Forwarding applications with export control issues to the ECO for review prior to providing H-1b, O-1 or TN sponsorship for an employee working with controlled technology to ensure license has been obtained to comply with USCIS Form I-129 requirements.

• Office of the General Counsel
  • Providing support to the ECO/ECP with export control issues, including reviews of export issues related to agreements, licenses, MOUs, and sponsored contracts, when needed.

• Environmental Health & Safety
  • Providing training to laboratory personnel on shipping biological materials, including international shipments and export control.
  • Ensuring requirements related to importing and exporting shipments comply with regulatory requirements.
  • Assisting the ECO/ECP and PIs in determining shipping license requirements, classification and documentation.

VII. Key Issues in University Research

A. Deemed Exports

While exports are commonly associated with the shipment of a tangible item across the US border, export controls have a much broader application. One of the most difficult issues with respect to export controls is the fact that an export is defined to include the transfer of controlled information or services to foreign nationals even when the transfer takes place within the territory of the US.

Under the ITAR and EAR a transfer of controlled technology, source code, technical data, or defense services to a foreign national is deemed to be an export to the national’s country even if the transfer takes place within the US.

Defined differently, if an export license is required to export a controlled item, technology or software to a foreign national’s country, then an export license is required to release the technical data about the item (ITAR), or to transfer the technology required for development, production, or use of the item to the person or entity in the US Technical assistance related to a development of a controlled item is also subject to this rule.

The “Deemed Exports Rule” has been in place for decades and is most applicable in a university environment. While a university may be involved in the shipment abroad of equipment or machinery to participate in a conference, a joint project, or equipment loan programs, most often faculty and students are engaged in teaching and research. Whenever teaching or research is related to controlled equipment or technology, the involvement of foreign students or researchers may trigger export control compliance issues.

The export may occur in several ways through:

• A demonstration
• Oral briefing
• Telephone call or message
• Laboratory or plant visit
• Presenting at conferences and meetings
• Faxes or letters
• Hand-carried documents, hardware, or drawings
• Design reviews
• The exchange of electronic communication
• Posting non-public data on the Internet or the Intranet
• Carrying a laptop with controlled technical information or software to a non-US destination
• Collaborating with other universities/research centers through research efforts

Items classified as EAR99 are subject to the Export Administration Regulations (EAR) but are not listed with a specific Export Control Classification Number (ECCN) on the Commodity Control List (CCL). EAR99 items are generally low-technology consumer goods that do not require a license, however there are some exceptions. An export license may be required if an item is being sent to an embargoed county or end-user of concern, or if it will be used in support of a prohibited end-use.

When working with EAR99 technology, an export license may also be required for any foreign nationals or institutions included on the “restricted persons lists” or when transferring the technology to embargoed destinations.

B. US and Foreign Persons

For purposes of defense and dual-use exports, a US person is defined as a US entity or a US citizen, a person lawfully admitted for permanent residence in the United States (i.e., a green card holder), or a protected individual under the Immigration and Naturalization Act 8 U.S.C. § 1324b(a)(3) (i.e., temporary or pending residency status). A US person may be engaged in activities that are export-controlled, unless there are some additional restrictions that limit participation to US citizens (such as classified research).

The regulations define a foreign person as anyone who is not a US person. The DDTC looks at the person’s country of origin (i.e., country of birth) and all current citizenships. The BIS looks at the person’s most recent citizenship and permanent residence.

Note that the definitions for a US and a foreign person may differ for purposes of the OFAC sanctions. Contact the ECO for clarification or review of the sanction.

C. Fundamental Research

It is important to note that most of the research activities that Boston University engages in are considered fundamental research. The term “fundamental research” means “basic and applied research in science and engineering, the results of which ordinarily are published and shared broadly within the scientific community, as distinguished from proprietary research and from industrial development, design, production, and product utilization, the results of which ordinarily are restricted for proprietary or national security reasons.” (National Security Decision Directive 189 establishes the basis for the fundamental research exemption.) Use of equipment, technology or software subject to the ITAR or EAR may require export licenses under certain circumstances even if the research is fundamental. Shipments and transport of equipment, technology or software outside of the US is ALWAYS subject to export regulations and may require certain pre-departure notifications and filings.

It is essential to distinguish the information or product that results from the fundamental research from the conduct that occurs within the context of the fundamental research. While the results of the fundamental research are not subject to export controls (unless it is ITAR controlled research), an export license may be required if during the conduct of the research export-controlled technology is to be released to a foreign national. Such export-controlled technology may come from the research sponsor, from a research partner institution, or from a previous research project. Additionally, although the research may be considered ‘fundamental research’, it may be necessary to obtain sponsor approval for any BU personnel (including students) who are not US persons.

The application of the fundamental research exemption is limited, and it is important to understand when it does not apply. Below are the cases where the fundamental research exemption will not be applicable:

• Physical exports
• A sponsor’s technical data or technology
• ITAR controlled research
• Some encrypted software
• Research conducted outside of the US
• Classified information
• Research with no intention to be published

The Fundamental Research Exclusion is nullified by any clause, regardless of sponsorship, (e.g., federal, state, private, nonprofit, etc.) that:

• Gives the sponsor the right to approve publications
• Restricts participation of foreign nationals in conduct of research by precluding access to research results
• Otherwise operates to restrict participation in research and/or access to and disclosure of research results

According to the EAR, prepublication review by a sponsor of university research solely to ensure that the publication would not inadvertently divulge proprietary information that the sponsor has initially furnished, or compromise patent rights, does not constitute restriction on publication for proprietary reasons.

D. Publicly Available

The ITAR and the EAR do not control information which has already been lawfully published and is accessible or available to the public. Note that even though the two organizations have similar scope, the ITAR and the EAR vary in the specific information that qualifies as publicly available.

ITAR provision: The ITAR describes such information as information in the public domain. Information in the public domain may be obtained through:

• Sales at newsstands and bookstores
• Subscription or purchase without restriction to any individual
• Second class mailing privileges granted by the US Government
• At libraries open to the public
• Patents available at any patent office
• Unlimited distribution at a conference, meeting, seminar, trade show or exhibition, generally accessible to the public, in the United States
• Public release in any form after approval of the cognizant US Government agency
• Fundamental research in the US

EAR provision: The EAR does not control publicly available technology if it is already published or will be published. Information is published when it becomes generally accessible to the interested public in any form, including:

• Publication in periodicals, books, print, etc., available for general distribution free or at cost
• Readily available at libraries open to the public or university libraries
• Patents and open patents applications available at any patent office
• Release at a conference, meeting, seminar, trade show, or other gathering open to the public

The EAR requires that the publication is available free or at a price not to exceed the cost of reproduction and distribution; however, the ITAR does not have such a requirement.

Note also that the EAR does not specify where an open conference, meeting, seminar, or trade show must take place, and thus allows for participation at a foreign conference so long as the conference is open to all technically qualified members of the public, and attendees are permitted to take notes. Unlike the EAR, the ITAR limits participation in conferences and similar events to those that are taking place in the US Presentations of materials outside of the US, other than those covered as “fundamental research”, has restrictions and may require approval from the government; consult the ECO for additional guidance.

E. Education Information

Both the ITAR and the EAR address the issue of general educational information that is typically taught in schools and universities.

• ITAR provision: The ITAR specifically provides that the definition of “technical data” does not include information concerning general scientific, mathematical, or engineering principles commonly taught in schools, colleges, and universities.
• EAR provision: The EAR provides that publicly available “educational information” is not subject to the EAR if it is released by instruction in catalogue courses and associated teaching laboratories of academic institutions.
• Online education: Provision of online education falls within the scope of OFAC restrictions. With some limited exceptions, online classes, including Massive Online Open Courses, require licenses for countries where the US maintains comprehensive economic and trade sanctions. This area is evolving and OFAC issued several general licenses for a number of courses, as a result, it is advisable to consult the ECO prior to offering an online course.

F. Full-Time University Employees

Under a specific employment exemption, the ITAR allows a university to disclose unclassified technical data in the US to a foreign person who is the university’s bona fide and full-time regular employee. Similarly, the EAR allows universities to transfer EAR controlled technology and source code to their bona fide and full-time regular employees under 15 CFR §740.13, Technology and Software – unrestricted (TSU).  Requirements to use either of these exceptions include:

• The employee’s permanent residence throughout the period of employment is in the US
• The employee is not a national of a country to which exports are prohibited pursuant to ITAR or EAR
• The university informs the individual in writing that the technical data may not be transferred to other foreign persons without the prior written approval of the DDTC or BIS
• The university documents the disclosure of technical data under the exemption.

These exemptions only apply to the transfer of technical data and discussions related to the data. Discussions may occur between the foreign full-time employee and other university employees working on the project. Additionally, the outside company (e.g., sponsor of the research) would have to apply for a DSP-5 license to provide technical data directly to the foreign national employee, and if the outside party and the employee are to engage in discussions and interchange concerning the data, then the proper authorization may be a Technical Assistance Agreement (TAA).

G. Graduate Thesis/Dissertation

BU proudly hosts over 1,300 foreign national scholars and visitors from 91 countries to conduct research, teach and work in a variety of capacities throughout the institution. The international scholar population varies from short-term visitors who conduct research on unpaid appointments to permanent, tenure-track professors and full-time employees. BU also proudly hosts nearly 11,000 international students from more than 130 countries. The BU International Student and Scholar’s Office (ISSO) is responsible for all immigration and employment processing to assist the university and continue the diverse scholar population to achieve its academic and employment goals.

H. International Students, Scholars and Employees

BU proudly hosts over 1,300 foreign national scholars and visitors from 91 countries to conduct research, teach and work in a variety of capacities throughout the institution. The international scholar population varies from short-term visitors who conduct research on unpaid appointments to permanent, tenure-track professors and full time employees. BU also proudly hosts nearly 11,000 international students from more than 130 countries. The International Student and Scholar’s Office (ISSO) is responsible for all immigration and employment processing to assist the university and continue the diverse scholar population to achieve their academic and employment goals.

I. NASA Restriction on Funding Activity with China

In February 2012, NASA issued guidance documents addressing NASA implementation of the restrictions included in their FY 2011 continuing resolution and FY 2012 funding Appropriations Acts (document sources referenced below). Per the Acts, NASA is restricted from using funds appropriated on or after April 25, 2011 to enter into or fund any grant, cooperative agreement or contract of any kind to participate, collaborate, or coordinate bilaterally in any way with China or any Chinese-owned company. To ensure compliance with the restriction, NASA requires institutions receiving NASA funding to complete an Assurance which represents the University’s acceptance of the restriction.

Therefore, the University is restricted from collaborating with, or issuing a sub-award to China or a Chinese-owned Company, whether the collaboration is funded or performed under a no-exchange of funds arrangement. “China or a Chinese-owned Company” is defined in the NASA guidance documents as “the People’s Republic of China, any company owned by the People’s Republic of China, or any company incorporated under the laws of the People’s Republic of China”.

Per NASA’s interpretation, the statute does not restrict individual involvement based on citizenship or nationality.  Individuals are subject to the restriction if they are affiliated with institutions of the People’s Republic of China or Chinese-owned companies incorporated under the laws of China. Therefore, scholars who retain their affiliation with a Chinese University may not work on NASA funded research. A student that receives a scholarship from a Chinese-owned company may not work on NASA funded research.

VIII. Export Control Procedures at Boston University

An export control analysis should be performed when a PI submits a proposal, receives an award, or changes the scope of an existing project to ensure that all compliance aspects have been identified and risks mitigated or eliminated.

A. Initial Review: Sponsored Programs and Industry Engagement

Sponsored Programs (SP) Pre-Award Services performs the initial review of proposals and awards submitted by and awarded to Boston University. SP Pre-Award Services & Outgoing Subawards will contact the ECO/ECP when any of the following possible export control issues are identified during award or proposal review:

• References to US export regulations (beyond a mere statement to comply with the law)
• Indication from the sponsor that export control information will be provided for the research
• Restriction of access or participation to US Persons only

The BU Industry Engagement (IE) office manages the negotiation, execution of agreements for industry-sponsored research projects, clinical trials, including industry-sponsored or investigator-initiated protocols as well as trials initiated by non-industry entities (e.g., universities), incoming Material Transfer Agreements (MTAs), Confidential Disclosure Agreements (CDAs), Data Use Agreements (DUAs), (Unfunded) Research Collaboration Agreements (CRAs) and Equipment Lease Agreements.

IE will forward all incoming MTAs, CDAs, DUAs and international transfer requests to the ECO/ECP for RPS. IE will contact the ECO/ECP when any of the following possible export control issues are identified in contracts:

• References to US export regulations (beyond a mere statement to comply with the law)
• Indication from the sponsor that export control information will be provided by the sponsor for the conduct of the research

B. Export Control Office Review

The Export Program will conduct a review if a funded project involves:

1. A collaborator outside of the US
2. Foreign nationals assessing and/or working on or contributing to the project
3. Travel outside the US by any BU participant (e.g., faculty, staff, students), paid or unpaid
4. Travel to the US by any collaborator involved with this study, paid or unpaid
5. Transport of any potentially classified or controlled materials on the USML  or CCL
6. Transport of any samples (e.g., tissue, blood, chemical) to or from the US
7. External parties, non-disclosure or confidentiality agreements
8. Sponsored agreement with publication restrictions

C. Final Review

If the initial review or ECP review identifies a possible export controls issue, the project will be referred to the ECO for final review. Upon completing the final review, the ECO will advise the PI concerning the export controls that apply to the project, the restrictions on access by foreign persons, and any other relevant requirements pursuant to ITAR and EAR, OFAC, and other regulations. If PI accepts export control restrictions, the ECO coordinates final approvals with the AVPRC.

D. Technology Control Plan

If the ECO determines a project falls under export controls, the ECO will work closely with the PI to develop and implement a Technology Control Plan (TCP) to secure the controlled technology from access by unlicensed non-US persons.

The TCP will include:

• A commitment to export controls compliance
• Purpose and scope of the TCP
• Identification of the relevant export control categories and controlled technologies
• Overview of applicable regulations
• Application of export regulations to the project
• Identification of the project’s sponsors
• Non-disclosure/FERPA statement/waiver from each research project participant
• List of export licenses and license exceptions applied to the project
• Appropriate physical and informational security measures
• Personnel screening measures
• Research lab visitor’s policy
• Record keeping policy
• Export compliance training and training logs
• ECP quality assurance visits
• Statement on Reporting violations
• Review statement

E. International Travel

Travel or transmissions to destinations outside the US can also trigger the applicability of export control regulations. A license may be required depending on which items are taken outside of the US, which countries are visited, or whether controlled services are provided abroad. Boston University faculty, researchers, students and staff should review the International Travel Risk Policy and comply with its requirements.

Travel with Electronic Devices

Most people travel with electronic devices. These devices (e.g., laptops, cellphones, GPS, etc.) and the software they run on, contain encryption and may be controlled for US export purposes. If you are planning to take an electronic device outside of the US, check with the manufacturer of the device and obtain the ECCN (export control classification number) to determine the level of encryption and controls. The applicable ECCN provides the reasons for control to be able to check the Country Chart and determine if a license is required to bring the device/software to a particular destination. Most manufactures list the ECCN codes on their websites to make it relatively easy to check the requirements, e.g.:

• Apple:                     http://www.apple.com/legal/export.html
• BlackBerry:            http://us.blackberry.com/legal/ECCN_statement.pdf
• Microsoft:              http://www.microsoft.com/exportinG/termsmx.htm
• IBM:                        http://www-03.ibm.com/products/exporting/
• Lenovo:                  https://www.lenovo.com/us/en/compliance/eccn-hts/

License Requirements for Travel with Electronic Equipment and Software

Most consumer electronic items contain a low level encryption and can be taken out of the US without an export license. Refer to the laptop/GPS checklist on the Export Controls website. When taking equipment or instruments outside of the US, it is highly advisable to carry a commercial invoice indicating what is being hand-carried  and/or in checked luggage, and applying for a carnet to avoid paying import duties or other charges that may be applied by the receiving country.

License Exception

A License Exception may be available for EAR controlled items, technology, or software if the individual travelling outside the US can certify that they:

• Will ship or hand-carry the items, technology, or software for BU business only
• Will return or certify the destruction of the items, technology, or software within 12 months of it leaving the US
• Will keep the items, technology, or software within his or her effective control
• Will take necessary security precautions to protect against the unauthorized export of the technology
• Will not ship or hand-carry the items, technology, or software to Iran, Syria, Cuba, North Korea, Russia/Ukraine or Sudan or any other country subject to OFAC sanctions without first consulting with the Export Control Officer.

License Exemption

A License Exemption may be available to ITAR controlled technical data transmitted outside the US if the individual transmitting the technical data can certify that:

• The technical data is to be used overseas solely by a US person(s)
• The US person overseas is an employee of US corporation or the US Government and is not an employee of a foreign subsidiary
• No export will be made to countries listed by 22 C.F.R. § 126.1 (ITAR prohibited destinations)
• BU must maintain its registration with DDTC
• All exemptions should be first verified with the ECO.

Travel to an Embargoed Country

If planning to attend a conference or other BU-related activity at an embargoed destination, a license may be required by the OFAC. Please contact the ECO/ECP well in advance of any planned travel to assure that all requirements are met and in place for the trip.

F. Training and Education Outreach

Training and educational outreach is the foundation of a successful Export Control Program. Well-informed employees minimize the likelihood that violations of the law will occur. The greatest risk of non-compliance of export laws and regulations occurs during casual conversations in person, on the telephone, or via email. The way to prevent these types of violations is through awareness and training. The ECO and the RC office are responsible for developing research compliance training guidelines for Boston University. Only researchers working on controlled projects require training on export controls. For all other researchers working on fundamental research, training is optional. The ECO/ECP will provide customized training upon request to all departments at the University.

Export Control education outreach at BU includes the following:

• Basic and advanced export compliance training for research departments that conduct research in high risk areas (e.g., space physics, chemistry, toxins, microorganisms, engineering, computing, biomedical research, etc.) is available upon request.
• Customized training for researchers who work on controlled research projects is conducted on a project by project basis, and as needed (for instance when new researchers are added to the project).
• Senior administration briefing on export controls is provided to the University Provosts by the EMO and/or ECO as necessary.
• Export compliance website is managed by the ECP office and provides guidance to researchers and administrators on export compliance issues.

G. Record Keeping

Unless otherwise documented, all records shall be maintained by the ECP consistent with the EAR and ITAR regulations, and shall be retained no less than five years after the project’s TCP termination date, license expiration date, or the terms of the sponsored award, contract or agreement, whichever is later.

Principal Investigators shall maintain all export records related to physical shipments of goods for at least five years from the date of export either in  physical form or electronically. In the event of an audit, Investigators will be required to produce these documents on fairly short notice. The required documents include but are not limited to commercial invoice, airway bill, bill of lading, packing list, certificate of origin, carnets, shipper’s letter of instructions, Automated Export System (AES) submission printout or the Internal Transaction Number (ITN) code, denied party screening checklist, export shipping checklist, and any other special document received from the University’s broker.

Export records include:

• A description of the unclassified technical data
• The name of the recipient/end-user
• The date/time of export
• The method of transmission (e.g., email, fax, telephone, FedEx)
• The exemption under which the export took place

H. Monitoring And Auditing

To ensure compliance with US export laws and University policies, the ECP may periodically conduct reviews of processes and documentation related to University export issues. Ordinarily, in-person audits and monitoring are arranged in advance by the ECP with the PI and/or their designee; audits/monitoring may also be conducted remotely.

If a violation or non-compliance is detected, the ECO/ECP and the PI or responsible party will develop a corrective action plan to resolve the issue and prevent similar or other issues from occurring. Audits conducted by the ECP will be followed by a report of findings and a corrective action plan, if any, with a copy to the PI, the PI’s department chair, the Executive Director of Research Compliance, and other parties as appropriate

I. Detecting And Reporting Violations

Penalties for export regulation violations can be severe, including personal liability, monetary fines, and imprisonment. However, government agencies assign great weight to voluntary self-disclosures as a mitigating factor. Individuals who have evidence of or suspect non-compliance with BU policies, procedures, federal or state regulations should follow University whistleblower and Code of Ethical Conduct policies for reporting.

J. Subpoenas and Enforcement Visits

If at any time a University researcher or administrator receives a visit from an enforcement agent, or anyone attempts to serve a subpoena or other legal papers, they should director the agent to  the Office of the General Counsel (OGC) at 125 Bay State Road immediately to verify the legitimacy of the request. OGC will work with the Boston University Police Department as necessary to verify the identity of the agents. OGC has information on their website about what to do in the event of a subpoena. A number of agencies have jurisdiction over export enforcement and some of the agencies include Bureau of Industry and Security (BIS), FBI, CIA, Immigration and Customs Enforcement (ICE), Directorate of Defense Trade Controls (DDTC).

K. Disciplinary Actions

BU faculty and staff are expected to abide by the BU Code of Ethical Conduct; those at BU who are responsible for export controls compliance and/or participate in export-controlled projects are made aware via annual trainings of the substantial criminal and civil penalties imposed for violation of the export regulations including personal liability, monetary fines, and imprisonment.

L. Employee Protection

In accordance with the BU Code of Ethical Conduct, no retaliatory actions will be permitted against individuals who report or inquire in good-faith about potential violations of law or University policies. However, a BU employee may be subject to disciplinary action if the employee knowingly fabricated, distorted, or exaggerated the report.

IX. Export Logistics and Shipment Processing

A. Export Shipment Processing

The fundamental research exception does not apply to physical shipments from the US When shipping samples, equipment, or instruments or taking equipment or instruments on an airplane to attend a conference or conduct research outside of the US, this is considered “exporting” and is subject to certain restrictions and procedures. Violations can cause delays in customs clearance and can ultimately cost hundreds of thousands of dollars in export fines and penalties. Most export violations or customs delays are unnecessary and caused by lack of information and planning.

When exporting from the US:

• Make sure to verify the import and paperwork requirements in the destination country to ensure smooth customs clearance. There are several ways to find the import requirements of the destination country. Start with the receiving party who should be able to contact their local customs authorities or use the BU customs broker to verify what documents will be needed to clear the shipment through customs. In addition, FedEx has a list of country import requirements on their website which can be helpful in determining restrictions.
• Make sure to allow sufficient time for export processing and license determinations. Start by determining whether an export license is required to export the equipment / Instrument / materials from the US and contact the appropriate University resource to assist in securing such license. It may take several months to process a license application.
• Exercise judgment when delegating any of the shipping and classification duties to a freight forwarder. Their business is to move freight and not to classify products and determine export license requirements.
• If you are shipping an item that is subject to an export license, or if you are unsure or need help, contact the ECP at export@bu.edu for assistance.

B. Special Classes of Exports

In addition to a licensing requirement by the BIS or DDTC, when exporting certain materials, additional licenses may be required to comply with special labeling and packaging requirements. If there are plans to export any of the following materials, contact the ECO/ECP and other appropriate University departments to ensure that the required export licenses are in place and the shipment is properly labeled and packaged for transportation:

• Select Agents: BU’s Select Agent Program follows guidelines set forth under the Department of Health and Human Services (DHHS) Centers for Disease Control and Prevention (CDC) regulations. The CDC regulates the possession of biological agents and toxins that have the potential to pose a severe threat to public health and safety. All principal investigators wishing to work with any select agents are required to be registered through the CDC. The BU Environment Health Safety Office (EHS) manages the registration program for the University. If planning to export or import select agents, contact EHS.
• Hazardous Chemicals: Hazardous chemicals are substances (e.g., liquid, solid, and gas) that have hazardous characteristics. They can be flammable, corrosive, reactive, toxic, radioactive, poisonous, or carcinogenic. In a general sense, these materials are considered hazardous because they present a potential risk to humans or the environment. These materials are regulated by several federal, state, and local agencies. Contact EHS  for assistance with importing or exporting chemicals.
• Infectious and Diagnostic Specimens, Biological Material or Animal Products: It is the PI’s responsibility to have knowledge of the contents of a shipment to determine if it falls within the definition of being an infectious substance, biological product, or diagnostic specimen. Approval is required by the BU Institutional Biosafety Committee (IBC) before ordering recombinant DNA and biohazardous materials. The IBC is a University committee responsible for reviewing and approving recombinant DNA research and biohazard projects. The committee sets containment levels in accordance with the federal regulatory requirements. If you are planning to import or export these items, contact the BU EHS and IBC offices.
• Radioactive Materials: Only those individuals authorized by the BU Radiation Safety Officer may use, bring into, or remove from the University any radioisotopes. Radioactive materials are regulated by the Massachusetts Department of Public Health (MA DPH) and the United States Nuclear Regulatory Commission (NRC). The Radiation Safety Office and EHS should be consulted when export of radioactive components is planned.
• Controlled Substances: Persons working at BU with controlled substances (scheduled drugs) must be licensed by both the Commonwealth of Massachusetts and the US Drug Enforcement Agency (DEA), and authorized by BU EHS. All exports of controlled substances are subject to an export license by the DEA. Contact EHS if planning to export controlled substances.
• Laboratory Animals: Airlines, shippers, and freight forwarders involved in the transport of live animals must ensure that animals arrive at their destinations in good health. The International Air Transport Association (IATA) Live Animals Regulations (LAR) describes the containers that should be used for each species, and the safeguards required during transport by air, sea, or land. BU requires all arrangements for the transport of live animals to be made through the laboratory animal facilities on campus. Do not contact the customs broker for animal shipments. Contact the BU Animal Science Center for information and assistance.
• Small Size, Low Value Shipments, and FedEx: If a shipment is valued at less that $2,500 and weighs less that 25 lbs. it is recommended that FedEx be used to ship the goods. With FedEx International Priority Service, smaller shipments often receive door-to-door customs-cleared deliver in 24-48 hours. Contact University Mail Services to set up a University FedEx account.
• Customs Brokerage and Freight Forwarding Services from Watchpoint Logistics, Inc.: For shipments of all values that require special import customs clearance services (Customs Brokerage) or export-related freight forwarding, the University’s preferred service provider is Watchpoint Logistics Inc. (WPL).
  • Import: WPL offers import Customs Brokerage services even if WPL is not the primary carrier of the shipment. For example, a shipment managed by DHL can be cleared through US Customs at the port of entry by WPL.  DHL, as a non-preferred supplier does not have the required allowances from the University to provide these services.
  • Export: WPL can also manage export shipments and acts as a logistics hub to coordinate in-country shipment internationally through their vast network. When engaging with WPL for a quote, prior to initiating a shipment or requesting customs clearance services, please provide  the following information to the WPL Primary Contact (listed below); more information may be requested if necessary:
    • Origin and destination addresses
    • Detailed description of Product(s) (including part number(s)) being transported
    • Quantity, dimensions, (Length, Width and Height) and weight(s) of shipment
    • Estimated timeline requirement for delivery (this allows WPL to provide options such as sea, air, or ground)
    • Carrier of shipment (if not WPL for customs clearance)
    • Identification information for shipment (if not WPL)

When ready to proceed with the shipment, a department should accept the quote by email and authorize the services. Payment may be made by P-Card on the final invoice at the completion of the shipment. Any questions about engaging with or completing payment for WPL should be directed to BU Sourcing & Procurement at sourcing@bu.edu.

• • International Trade and Advisory Services: Watchpoint Logistics unit specializes in international trade and customs advisory services and is able to provide the University with international trade regulatory assistance and is able to provide the University with the following information for a shipment as needed or requested:
    • 10 digit fully qualified HTS/Schedule B Number
    • ECCN Determination
    • Export License Requirements
    • Other destination country HS numbers
    • Destination Duty and tax rates
    • Other General Export Advisory services

For WPL to provide the above services, BU is required to supply the following:

• • • Product Number
    • Product Description
    • Technical information if applicable
    • Responses to additional requests for information from personnel to be designated by Boston University

A quote, prior to starting services, is recommended if seeking to engage with WPL.

WPL Import Contact

Linda Amiro
International Import manager
Watchpoint Logistics Inc.
100 Griffin Brook Dr,
Methuen, MA 01844
Phone: (617) 567-6800
Email: Linda.Amiro@Watchpointlogistics.com

WPL Export Contact

Kevin Barry
Export Operations Manager
Email: Kevin.Barry@Watchpointlogistics.com
Phone: (617) 567-6800

Additional WPL Contact

Michelle Merino
Managing Director
Email: Michelle.Merino@Watchpointlogistics.com
Phone: (617) 567-6800

Appendix A: OFAC: Economic Sanctions and Embargoes

A. Sanctions Overview

The Office of Foreign Assets Control (OFAC) is part of the US Department of the Treasury and administers and enforces economic and trade sanctions based on US foreign policy and national security goals. These sanctions are against targeted foreign countries and regimes, terrorists, international narcotics traffickers, those engaged in activities related to the proliferation of weapons of mass destruction, and other threats to the national security, foreign policy or economy of the United States.

All export transactions whether under the ITAR or EAR are subject to the US economic sanctions, which broadly prohibit most transactions between a US person and persons or entities in an embargoed country. These prohibitions include importation and exportation of goods and services, whether direct or indirect, as well as “facilitation” by a US person of transactions between foreign parties and a sanctioned country. For example, sending a check to an individual in Iran or speaking at a conference could require an OFAC license.

More limited sanctions may block particular transactions or require licenses under certain circumstances for exports to a number of countries beyond the embargoed list. Because this list is subject to change, please visit the OFAC website for up-to-date information.

Economic sanctions and embargo programs are country-specific and very detailed in the prohibitions. There are certain exemptions for university travel under some of the OFAC programs, however, the scope is very limited. Individuals intending to travel to a conference or a university in an embargoed destination should consult with the ECO.

Note: US Government sanction lists are updated regularly and should be consulted prior to each transaction/travel.

B. “Restricted Party Lists” Prohibited Entities, Individuals and Debarments

Terrorist and Other Barred Entity Lists

Various US Government agencies maintain lists of individuals or entities barred or otherwise restricted from entering into certain types of transactions with US persons (e.g., The ‘Consolidated Screening List’ includes screening lists of US Departments of Commerce, State and Treasury, and enables individuals and institutions to search for individuals and entities that may have US government export, re-export or transfer restrictions). BU has an extensive international program and Investigators have numerous international collaborations and collaborators. It is important that proper screening occurs prior to any export or international collaboration to ensure that the University does not engage in a transaction with a debarred/restricted entity or individual. There are numerous BU departments that conduct these screenings. Employees are strongly encouraged to check with their Department Administrator and the ECO for information and assistance with the screening process.

Appendix B: International Traffic in Arms Regulations (ITAR)

A. ITAR Overview

The International Traffic in Arms Regulations (ITAR) at 22 C.F.R. Parts 120-130 govern the export, re-export and temporary import of defense articles, services, and related technical data from the United States, outside of the US, and/or to any foreign person, whether located within the United States or outside of the US The ITAR controls not only end-use items, such as radar and communications systems, military encryption and associated equipment, but also the parts and components that are incorporated into the end-use item. The Directorate of Defense Trade Controls (DDTC) administers and enforces these regulations.

An article or service may be designated or determined in the future to be a defense article or defense service if it:

• Is specially designed, developed, configured, adapted, or modified for a military application;
• Does not have predominant civil applications; or
• Does not have performance equivalent (defined by form, fit, and function) to those of an article or service used for civil applications.

The intended use of the article or service after its export (i.e., for a military or civilian purpose) is not relevant in determining whether the article or service is subject to the controls of this subchapter.

B. ITAR Definitions

• Defense Article: Means any item or technical data that is designated on the US Munitions List (USML) and includes (1) technical data recorded or stored in any physical form, models, mock-ups or other items that reveal technical data relating to items designated on the USML, and (2) Forgings, castings, and other unfinished products such as extrusions and machined bodies that have reached a stage in manufacturing where they are clearly identifiable by mechanical properties, materials composition, geometry or function as defense articles.

• Defense Service: Means (1) providing assistance, including training, to a foreign person whether in the United States or abroad in the design, development, engineering, manufacture, production, assembly, testing, repair, maintenance, modification, operation, demilitarization, destruction, processing or use of defense articles; (2) The furnishing to foreign persons of any technical data controlled under 22 CFR 120, whether in the United States or abroad; or (3) Military training of foreign units and forces, regular and irregular, including formal or informal instruction of foreign persons in the United States or abroad or by correspondence courses, technical, educational, or information publications and media of all kinds, training aid, orientation, training exercise, and military advice.

• Fundamental Research: Means basic and applied research in science and engineering where the resulting information is ordinarily published and shared broadly within the scientific community, as distinguished from research in which the results are restricted for proprietary reasons or specific US Government access and dissemination controls. University research will not be considered fundamental research if:
  • The University or its researchers accept other restrictions on publication of scientific and technical information resulting from the project or activity; or
  • The research is funded by the US Government and specific access and dissemination controls protecting information resulting from the research are applicable.

• Public Domain: means information that is published and generally accessible or available to the public via measures such as:
  • Through sales at newsstands and bookstores;
  • Through subscriptions available without restriction to any individual who desires to obtain or purchase the published information;
  • Through second class mailing privileges granted by the US Government;
  • At libraries open to the public or from which the public can obtain documents;
  • Through patents available at any patent office;
  • Through unlimited distribution at a conference, meeting, seminar, trade show or exhibition, generally accessible to the public, in the United States;
  • Through public release (i.e., unlimited distribution) in any form (e.g., not necessarily in published form) after approval by the cognizant US Government department or agency; or
  • Through fundamental research in science and engineering at accredited institutions of higher learning in the US where the resulting information is ordinarily published and shared broadly in the scientific community.

Under the ITAR, certain data that is considered as being in the “public domain” may be exempt.

• Technical Data: Means (1) information which is required for the design, development, production, manufacture, assembly, operation, repair, testing, maintenance, or modification of defense articles. This includes blueprints, drawings, photographs, plans, instructions (e.g., operations and maintenance manuals), or documentation (e.g., email where such information is discussed); (2) Classified information relating to defense articles and defense services on the USML and 600-series items controlled by the CCL; (3) Information covered by an invention secrecy order; (4) Software directly related to defense articles. However, technical data does not include general scientific, mathematical, or engineering principles commonly taught in schools, information present in the public domain, general system descriptions of defense articles, or basic marketing information on function or purpose.

• US Person: US person means a person who is a 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). It also means any corporation, business association, partnership, society, trust, or any other entity, organization or group that is incorporated to do business in the United States. It also includes any governmental (federal, state, or local) entity. It does not include any foreign person as defined in § 120.63.

C. Definition Of Export Under The ITAR

(a) Export, except as set forth in § 120.54 or § 126.16 or § 126.17, means: (1) An actual shipment or transmission out of the United States, including the sending or taking of a defense article out of the United States in any manner; (2) Releasing or otherwise transferring technical data to a foreign person in the United States (a deemed export); (3) Transferring registration, control, or ownership of any aircraft, vessel, or satellite subject to this subchapter by a US person to a foreign person; (4) Releasing or otherwise transferring a defense article to an embassy or to any of its agencies or subdivisions, such as a diplomatic mission or consulate, in the United States; (5) Performing a defense service on behalf of, or for the benefit of, a foreign person, whether in the United States or abroad; or (6) The release of previously encrypted technical data as described in § 120.56(a)(3) and (4).

(b) Any release in the United States of technical data to a foreign person is deemed to be an export to all countries in which the foreign person has held or holds citizenship or holds permanent residency.

• Exports of Articles from the US Territory
  • Shipping or taking a defense article out of the US
  • Transferring title or ownership of a defense article to a foreign person, in or outside the US
  • Transfer of technical data (e.g., taking a laptop which contains technical data to another country constitutes export of the data).

• Extra-Territorial Transfers
  • The re-export or re-transfer of defense articles from one foreign person to another, not previously authorized (i.e., transferring an article that has been exported to a foreign country from that country to a third country). For example, if a research project is shared with an authorized collaborator in Country-X, the individual may not share the information with another individual without prior approval.
  • Transferring the registration, control, or ownership of any aircraft, vessel, or satellite covered by the USML, to a foreign person, whether the transfer occurs in the United States or abroad.

• Export of Intangibles
  • Disclosing technical data to a foreign person, whether in the United States or abroad, through oral, visual, or other means.
  • Performing a defense service for a foreign person, whether in the United States or abroad.

D. Authorization to Export

Generally, any US person or entity that manufactures, brokers, or exports defense articles or services must be registered with the DDTC. Registration is required prior to applying for a license or taking advantage of some license exemptions. Registrations are managed by the ECO.

Once the registration is complete, an exporter, via the ECO, may apply for an export authorization by submitting a license application for the export of defense articles or technical data. Most types of applications also contain additional certifications/transmittal letters, supporting documentation, and in some cases, non-transfer and use certification from the licensee and/or the foreign government of the licensee.

License exemptions specific to universities, as well as licensing procedures, are described in detail in the Key Issues in University Research (see section VII of this manual). BU is registered with the DDTC and as such can submit license applications and to use ITAR exemptions. ITAR has strict documentation requirements and all exemptions must be documented and signed by BU’s Empowered Official who will ensure that the University does not exceed the authorization or scope of the exemption.

E. The US Munitions List

The first step to determine whether research falls under the ITAR is to review the US Munitions List (USML), section 121.1 of the ITAR. The USML designates categories and types of equipment as defense articles and associated technical data and defense services. In general terms, any items specifically designed, modified, adapted, or configured for military use will fall under the ITAR. The USML divides defense items into 21 categories, listed below:

1. Firearms and Related Articles
2. Guns and Armament
3. Ammunition and Ordnance
4. Launch Vehicles, Guided Missiles, Ballistic Missiles, Rockets, Torpedoes, Bombs and Mines
5. Explosives and Energetic Materials, Propellants, Incendiary Agents, and their Constituents
6. Surface Vessels of War and Special Naval Equipment
7. Ground Vehicles
8. Aircraft and Related Articles
9. Military Training Equipment and Training
10. Personal Protective Equipment
11. Military Electronics
12. Fire Control, Laser, Imaging, and Guidance Equipment
13. Materials and Miscellaneous Articles
14. Toxicological Agents, Including Chemical Agents, Biological Agents, and Associated Equipment
15. Spacecraft and Related Articles
16. Nuclear Weapons Related Articles
17. Classified Articles, Technical Data and Defense Services Not Otherwise Enumerated
18. Directed Energy Weapons
19. Gas Turbine Engines and Associated Equipment
20. Submersible Vessels and Related Articles
21. Articles, Technical Data, and Defense Services Not Otherwise Enumerated

An electronic version of the USML is available via the Federal Register, part of the National Archives.

F. Classification

While the DDTC has jurisdiction over deciding whether an item is controlled under the ITAR or EAR, universities may self-classify the item. If doubt exists as to whether an article or service is covered by the USML, the DDTC will make a determination upon written request in the form of a Commodity Jurisdiction (CJ). A CJ may also be requested for technical data which is subject to the DDTC jurisdiction.

University faculty, students and staff should contact the ECP when classifying items, technology or software/data. If it is determined that it is necessary to obtain a CJ, the ECO/ECP will file the request with DDTC.

G. Embargoed Countries under the ITAR

ITAR Prohibitions: No ITAR exports may be made either under a license or license exemption to countries proscribed in 22 C.F.R. § 126.1. Moreover, no foreign nationals from these countries shall have access to ITAR related research, technical data, or services.

Note: Embargoed country lists are regularly updated. It is essential that the list be consulted prior to any transaction. For the most updated list please refer directly to the Department of State DDTC website.

H. Record Keeping

All records related to export or import shipments, research projects, licenses, agreements and/or license exceptions under ITAR must be kept on file for five years after the shipment/project is finalized or the export license expired whichever is longer.

I. Importing

There are two primary US government agencies that regulate and oversee the import of ITAR articles into the US, including temporary imports or imports of US origin. ITAR hardware that was previously exported from the US is subject to DDTC’s jurisdiction once imported back to the US and importers can either apply for a temporary import license or  a very narrow license exception with US Customs and Border Protection.

The permanent import of ITAR articles listed on the US Munitions Import List requires an import license from the Bureau of Alcohol, Tobacco, and Firearms (ATF) and importers (e.g., the individual employee/faculty who imports the item for use at BU) must be registered with the ATF. The US Munitions Import List is not as comprehensive as the USML and doesn’t include all ITAR items so it is important to carefully review its applicability prior to the import at 27 CFR §447.21. This list mostly governs critical military items and very few space related items and equipment.

Appendix C: Export Administration Regulations (EAR)

A. EAR Overview

Exports and re-exports of commercial and dual-use items, technology, and software are regulated and enforced by the Bureau of Industry and Security (BIS) under the Export Administration Regulations, 15 C.F.R. §§ 730-774 (EAR). While there are some parallels to the ITAR, there also are some major differences in how the regulations and the relevant agencies function.

B. Definitions under the EAR

Export: Export is defined as the actual shipment or transmission of items subject to the EAR out of the United States. The EAR is similar to the ITAR in that it covers intangible exports of “technology,” including source code, as well as physical exports of items.

Deemed Export: The release of technology or source code to a foreign national within the United States is “deemed” to be an export to that national’s country, even though the release took place within the United States. Deemed exports may occur through such means as a demonstration, oral briefing, or plant visit, as well as the electronic transmission of non-public data that will be received abroad.

Re-export: The shipment or transmission of a US origin item subject to the EAR sent from one foreign country (i.e., a country other than the US) to another foreign country. A reexport also occurs when there is a ‘release’ of technology or software (source code) subject to the EAR in one foreign country to a national of another foreign country. A ‘transfer’ is shipment of the item within a single foreign country.

Deemed Re-export: The EAR defines “deemed” re-exports as the release of technology by a foreign national who has been licensed to receive it to the national of another foreign country who has not been licensed to receive the technology. For example, ECCN 5E001 technology may be exported to a university in Ireland under the license exception for technology and software but might require a deemed re-export license authorization before being released to a Russian foreign national student or employee of that university in Ireland.

C. Classification and the Commerce Control List

Only the DDTC has jurisdiction and authority to decide whether an item is ITAR or EAR controlled. Once it is determined that an item is EAR controlled, the exporter must determine its Export Control Classification Number (ECCN). The BIS encourages self-classification, however, the categories listed on the Commerce Control List (CCL) are highly technical and only a person with sufficient technical expertise should make an attempt to classify dual-use items/technology or software under the EAR. Please contact the ECP for classification information.

The CCL is published by the US Commerce Department under the EAR which addresses “dual-use” items, or information and software that are primarily commercial in nature but also have potential military applications. A key in determining whether an export license is needed from the Department of Commerce is whether the item intended for export has a specific ECCN. The ECCN is an alpha-numeric code (e.g., 3A001), that describes the item and indicates licensing requirements.

The CCL provides a list of specific items that are controlled. Unlike the ITAR, for classification purposes the BIS generally considers the classification of the complete product being exported rather than at the classification of each subcomponent of the item (i.e., “black box” treatment), as opposed to the “see through” treatment under the ITAR.

The CCL is divided into ten categories:

0.   Nuclear Materials, Facilities and Equipment (and Miscellaneous Items)
1.   Materials, Chemical, Microorganisms, and Toxins
2.   Materials Processing
3.   Electronics
4.   Computers
5.   Part-1: Telecommunications
5.   Part-2: Information Security
6.   Sensors & lasers
7.   Navigation & Avionics
8.   Marine
9.   Aerospace and Propulsion

Each category is further divided into five product groups:

1. End Items, Equipment, Accessories, Attachments, Parts, Components, and Systems
2. JTest, Inspection and Production Equipment
3. Materials
4. Software
5. Technology

What is the difference between EAR99 and NLR?

EAR99 is a classification for an item. It indicates that a particular item is subject to the EAR, but not listed with a specific ECCN on the CCL. While the classification describes the item, the authorization for shipment of that item may change, depending on the transaction. NLR, or ‘No License Required’, is the designator of a transaction authorization. NLR may be used for either EAR99 items, or items on the CCL that do not require a license for the destination in question, provided no General Prohibitions apply.

D. Items Controlled Under the EAR

Generally, all items of US origin or foreign origin items located in the United States are subject to the EAR. An item manufactured or technology developed abroad using components of US origin is generally exempt from the EAR re-export requirements if it contains a de minimis level of US origin content by value. Such de minimis levels are set in the regulations relative to the ultimate destination of the export or re-export.

Under the EAR, items with potential “dual” commercial and military use, or otherwise of strategic value to the Unites States may require an export license. Items listed on the CCL may require a license to certain countries or to certain entities prior to exportation. The CCL also contains items that have been transferred from the USML and these items require licenses to most countries and have enhanced technical data transfer requirements. These are often referred to as 500 and 600 series.

E. Encryption

Encryption regulations are also administered by the BIS and add another layer to export controls for certain products and software. Encryption regulations are complex and any party who exports certain US-origin encryption products may be required to submit an encryption registration, classification request and/or self-classification report to the BIS. In addition, registration is required in order to take advantage of a license exception.

F. Export Authorization

Once it is determined that a license is required, an exporter may apply for export authorization from the BIS, unless a license exception applies. Unlike the ITAR, there is no requirement for formal registration prior to applying for an export license. All license applications are submitted by the ECO online via the SNAP-R system. It may take several weeks or months to obtain an export license so researchers should allow sufficient time for these applications.

Exceptions: The EAR contains a number of useful license exceptions that must be carefully documented. Altering a transaction to “fit” the scope of a license exception is prohibited. Each transaction/export is taken “as is” before the license exception is applied.

G. Restrictive Trade Practices and Boycotts

The EAR, at 15 C.F.R. § 760, prevents US persons from doing business under terms that would restrict business with other countries under a boycott not recognized by the United States.

i.  Jurisdiction

• • These laws generally apply to any person or entity in the US, and to US persons or entities abroad. As examples, the laws apply to a Foreign company’s affiliate or permanent office in the US
  • Foreign affiliate’s transaction with a third-party if that affiliate is controlled by a US company and involves shipment of goods to or from the US

ii.  Signs of Anti-boycott Requests

• • The Commerce Department has set forth the following signs of anti-boycott requests: Agreements to refuse or actual refusals to do business with ‘blacklisted’ countries or companies.
  • Agreements to discriminate or actual discrimination against other persons based on race, religion, sex, national origin, or nationality.
    Furnishing information about business relationships with counties or with ‘blacklisted’ companies.
  • Furnishing information about the race, religion, sex, or national origin of another person.
  • Paying or otherwise implementing letters of credit that include requirements to take boycott-related actions prohibited by the anti-boycott regulations.

These restrictions may appear on pre-printed portions of agreements, in purchase orders, on letters of credit, may come up in oral communication, in correspondence, etc. US persons are prohibited from responding to these types of requests.

Reporting

Any US person or entity who is asked to enter into an agreement or provide information that would violate anti-boycott laws must report this to the BIS using form BIS-621-P. Information regarding the reporting of suspected anti-boycott activities and form BIS-621-P can be found in the regulations at 15 C.F.R. § 760.  In addition, the US Internal Revenue Service (IRS) requires US taxpayers to report operations in or relating to boycotting countries and nationals and request to cooperate with boycott activities. See IRS Form 5713. These reporting requirements apply even where the US person or entity refuses to participate. Crossing out the boycott language in a proposed contract does not end the matter. The duty to report remains even where the requesting foreign entity accepts the redaction of the boycott language.

Contact the ECO/ECP at export@bu.edu if you receive (or think you may have received) an anti-boycott request.

H. Record Keeping

All records related to an export shipment, data transfer, export license, or license exception must be kept on file for five years from the date of the export.

Appendix D: Foreign Trade Regulations: Title 15 CFR, Part 30 (Export Shipments Reporting)

A. Overview

The foreign trade regulations at 15 CFR 30 govern reporting requirements for physical export shipments from the United States. The regulations are administered by the US Census Bureau, Division of Foreign Trade Statistics and enforced by US Customs and Border Protection. The regulations replaced the Shipper’s Export Declaration (SED) form and have been enacted since 2008. All export information that was previously listed on the SED form is now submitted electronically via the Automated Export System (AES) prior to the export for certain types of export shipments.

The main purpose of the regulations is to track export statistics. However, it is also used as an enforcement tool by the Bureau of Industry and Security (BIS), Directorate of Defense Trade Controls (DDTC), Office of Foreign Asset Controls (OFAC) and other agencies. Similar to the OFAC, ITAR and EAR regulations, these regulations are mandatory and impose penalties for violations.

B. Definitions

Parties involved in an export transaction

• US Principal Party in Interest (USPPI): The person or legal entity in the United States that receives the primary benefit, monetary or otherwise, from the export transaction. Generally, that person is the US seller, manufacturer or order party, or the foreign entity while in the US when purchasing or obtaining the goods for export.

• Authorized US Agent: An individual or legal entity physically located in or otherwise under the jurisdiction of the US that has obtained power of attorney or written authorization from a USPPI or Foreign Principal Party in Interest (FPPI) to act on its behalf.

• Foreign Principal Party in Interest (FPPI): The party shown on the transportation document to whom final delivery or end-use of the goods will be made. This party may be the ultimate consignee.

Foreign Trade Regulations Terminology

• Export Shipment: An export shipment is defined as merchandise shipped from one USPPI to one consignee, on the same flight/vessel, to the same country, on the same day, valued over $2,500 per Schedule B/ Harmonized Tariff Schedule number or (any value) where a license is required.

• Automated Export System (AES): An electronic export information gathering and processing system. The AES collects export information electronically from participants approved to use the system and replaced the SED form.

• Electronic Export Information (EEI § 30.6): The export data as filed in the AES.

• Routed Export Transaction (§30.3 (e)): A transaction in which the FPPI authorizes a US agent to prepare and file the EEI. While the FPPI will select the US agent, it may give authorization to the USPPI to file the EEI.

• Tools of Trade (§ 30.37 (b)): Tools of trade are exempt from filing requirements if the item is owned by the individual US Principal Party in Interest; accompanying the individual USPPI, employee, or representative of the exporting company; necessary, appropriate, and intended for personal use; not for sale; returned to the US within one year from the date of export; and not shipped under a bill of lading or airway bill.

• Internal Transaction Number (ITN): The AES generated number assigned to a shipment confirming that the EEI was accepted in the AES.

• Schedule B Number: The statistical classification of commodities that are exported from the United States. It is a 10-digit code unique to the particular products or technology. The schedule B system is administered by the US Census Bureau and each exporter is required to report the code in the AES system.

C. General Requirements for Filing Electronic Export Information (EEI)

The Electronic Export Information (EEI) must be filed when shipped as follows:

• All commodities over $2,500 per schedule B number
• From US to foreign countries
• Between the US and Puerto Rico
• Between Puerto Rico and US Virgin Islands
• From US to the US Virgin Islands
• Between US and Embargo destinations
• All exports from the US subject to an export license (regardless of value)
• All exports subject to the ITAR (including license exceptions)
• Rough diamonds

Filing Exemptions

There are several useful filing exemptions, here is a list of the most commonly used:

• Canada (except for licensable exports, exports subject to the ITAR, rough diamond exports, transshipments)
• Low value shipments
• Tools of trade
• Technology and software (not subject to an export license); EEI is required for mass market software
• Baggage and personal effects (unless license is required)

All exemptions must be included on the shipping and transportation documentation (airway bill or bill of lading and commercial invoice) in the following format:  “No EEI Required… [exemption code]”. For more information on Exemptions, please see Title 15 Part 30, Subpart D.

Filing Timelines

There are very strict filing timelines via the AES of non-UMSL and USML shipments.

• Non-USML shipments: be sure to check 15 CFR 30.4(b) before you file in case timelines have changed:
  • Vessel Cargo: 24 hours prior to loading cargo on a vessel at the US port
  • Air Cargo: No later than two hours prior to the scheduled departure time of the aircraft
  • Truck Cargo: No later than one hour prior to the arrival of the track at US border
  • Rail Cargo: No later than two hours prior to the time the train arrived at the US border
  • Mail: No later than two hours prior to departure of export carrier
• USML shipments: For USML shipments, refer to the ITAR (22 CFR 123.22(b)(1)) for specific requirements concerning pre-departure filing time frames. In general:
  • Air or Truck: at least 8 hours prior to departure
  • Sea or Rail: at least 24 hours hours prior to departure
  • If a filer is unable to acquire an ITN because the AES or AESDirect is not operating, the filer shall not export until the AES is operating and an ITN is acquired.

After filing the EEI via AES, an “Internal Transmission Number (ITN)” will be issued and which must be reported on the shipping document and commercial invoice.

D.  Record Keeping

The US Census Bureau requires that all parties to the export transaction retain records pertaining to the export shipment five years from the date of export, including the ITN number.

Boston University’s uses a Customs Broker/Freight Forwarder, Watchpoint Logistics, Inc., that can assist with the actual filing for a fee, provided they have a valid Power of Attorney form or other form of written authorization on file. Please keep in mind that University employees are responsible for providing the broker with the required information to submit the AES. It is not the broker’s job, for example, to determine a schedule B code. Moreover, the exporter of record may be held ultimately responsible for any mistakes that the designated agent makes on his/her behalf. Please see the BU Export Control website, under the section titled ‘Customs Brokerage and Freight Forwarding Services from Watchpoint Logistics, Inc.’ for more information, including appropriate company contacts.

Appendix E: Penalties for Export Violations

Any person or entity that brokers, exports/transfers, or attempts to export/transfer a controlled item without prior authorization or in violation of the terms of a license is subject to penalties. Violators may incur both criminal and civil penalties. Although there is a maximum amount for a civil or criminal penalty, the actual penalty imposed is often multiplied. For instance, each shipment/transfer might be considered a separate violation, and the enforcement agencies will often find multiple violations of related restrictions in connection to each shipment (e.g., export without a license, false representation, actions with knowledge of a violation, etc.). A series of violations occurring over time may result in hundreds of thousand or even millions of dollars of penalties. Moreover, violation of US export control may impact the University’s ability to conduct research, lead to negative publicity for the researcher and the University, denial of export or research privileges and high legal fees.

Boston University is under a mandatory self-disclosure for non-compliance with export laws.

A. Violations of the ITAR

The Arms Export Controls Act and the ITAR provide that wilful violations of the defense controls can be fined up to $1 million per violation, twenty years of imprisonment, or both. In addition, the Secretary of State may assess civil penalties, which may not exceed $500,000 per violation. The civil penalties may be imposed either in addition to, or in lieu of, any other liability or penalty. The articles exported or imported in violation, and any vessel, vehicle, or aircraft involved in such attempt is subject to seizure, forfeiture, and disposition. Finally, the Assistant Secretary for Political-Military Affairs may order debarment of the violator, (i.e., prohibit the violator from participating in the export of defense items or in federal government contracting opportunities).

While imposing criminal liability is fairly rare, many major US companies have been assessed significant civil penalties in the millions of dollars. The enforcement of export controls has increased over the past several years.

Examples of Penalties under ITAR: 

• Professor Roth from the University of Tennessee was sentenced to four years in prison in 2008 for ITAR violations. In brief, Professor Roth accepted an Air Force research contract that was subject to the ITAR and allowed Chinese and Iranian students to participate in the research and also took some of the controlled data to China, which is prohibited under the ITAR. As a result, he was sentenced to a four-year prison term. It is often forgotten that ITAR attaches strict liability for export violations, therefore, not only can a university be charged with high penalties, but the individual researchers can be prosecuted for ITAR violations. Moreover, any person that has knowledge that an export of an ITAR article or data to an embargoed destination (such as China) occurred is under an obligation to report it to the DDTC.

• The investigation into the export practices of ITT Corporation, the leading manufacturer of military night vision equipment for the US Armed Forces. ITT’s violations resulted in the company’s Night Vision Division being debarred from export of defense items for three years. In addition, pursuant to a plea agreement ITT agreed to pay a total of $100 million for its violations of defense export laws, one of the largest penalties ever paid in a criminal or civil case.

• Pratt & Whitney Canada Corp. (PWC), a Canadian subsidiary of the Connecticut-based defense contractor United Technologies Corporation (UTC), pleaded guilty to violating the Arms Export Control Act and making false statements in connection with its illegal export to China of US-origin military software used in the development of China’s first modern military attack helicopter. In addition, UTC, its US-based subsidiary Hamilton Sundstrand Corporation (HSC) and PWC have all agreed to pay more than $75 million as part of a global settlement with the Justice Department and State Department in connection with the China arms export violations and for making false and belated disclosures to the US government about these illegal exports.

B. Violations of the EAR

Similar to the ITAR, violations of the EAR are subject to both criminal and administrative penalties. Fines for export violations, including anti-boycott violations, can reach up to $1 million per violation or five times the value of the exports for each violation in criminal cases, and $250,000 or twice the amount of the underlying transaction (whichever is greater) per violation in most administrative cases. In addition, criminal violators may be sentenced to prison for up to 20 years, and administrative penalties may include the denial of export privileges. A denial order is probably the most serious sanction because such order would bar a US company from exporting for a period of years or bar a foreign entity from buying US origin products for such period.

In most instances, the BIS reaches negotiated settlements in its administrative cases, as a result of voluntary self-disclosures of violations by companies and individuals. Voluntary disclosures constitute a major mitigating factor in determining penalties and would lead to reduction of export penalties, provided certain conditions are met, such as the implementation of a comprehensive compliance program.

C. Exports to a Sanctioned Country

Persons who willfully violate any provision of Trading With the Enemy Act (TWEA) or any license, rule, or regulation issued thereunder, and persons who willfully violate, neglect, or refuse to comply with any order of the President issued in compliance with the provisions of TWEA may be subject to significant fines and or imprisonment. In addition, where there is egregious conduct by the offender, the BIS (which assists the OFAC in enforcing sanctions) may suspend the export privileges of a company or a university.

In assessing penalties, the DDTC, BIS, and OFAC will consider factors both aggravating and mitigating. Mitigating factors include: whether the disclosure was made voluntarily; whether this was a first offense; whether the company had compliance procedures; whether steps were taken to improve compliance after discovery of violations; and whether the incident was due to inadvertence, mistake of fact, or good faith misapplication of the laws. Aggravating factors include willful or intentional violations; failure to take remedial action after discovery; lack of a compliance program; and deliberate efforts to hide or conceal a violation.

D. Violations of Foreign Trade Regulations

Violations of the foreign trade regulations are enforced by US Customs and Border Protection (CBP). The maximum penalty for a violation is $10,000 and each party to the transaction is subject to fine; that includes the exporter, manufacturer, freight forwarder, and broker, among others.

In assessing the violations CBP will focuses on the following types of inaccuracies in filing the EEI or recording the exemptions:

• Failure to file the EEI
• Late filing of the EEI
• Incorrect data on the EEI, such as port of exit, value, commodity description
• Failure to provide the carrier with the appropriate proof of filing citation or exemption legend
• Failure to retain records for the required five year period
• Loading of cargo without the appropriate proof of filing citation or exemption legend
• Failure to annotate the manifest with the appropriate proof of filing citation or exemption legend

Revision History

This document will be updated periodically and undergo regular review to ensure that the policies and procedures are current and consistent with export control laws and BU’s policies and procedures.