The “Yates Memorandum” from the US Department of Justice (September 9, 2015) makes very clear that individuals, not just corporations, will be a focus of any criminal or civil investigations and subsequent penalties surrounding the illegal export of controlled items. Each engineer must not only understand what items are controlled and what constitutes an export but, also act accordingly to comply with all regulations.
According to the Export Administration Regulation (EAR), “any release in the United States of technology or source code to a foreign person is a deemed export to the foreign persons most recent country of origin.” According to the International Trafficking in Arms Regulation (ITAR), “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.” Those descriptions may possibly describe the person sitting across the table from you, or the person on the phone, or maybe even the best person there is to do that one task.
Controlled items include much more than one might think: commodities (stuff you can touch or feel), software (especially source code), technology (EAR term) / technical data (ITAR term for the same thing – information), and defense services (designing, testing, troubleshooting, repair, purchasing, training, shipping, advising, etc.).
There are export-controlled items that are stored in our heads that can be accidentally, illegally exported through our mouths and fingers.
So, what are some practical things an engineer can do?
- Know what you have and who you are about to give it to.
- Begin every meeting (face-to-face or telephonic) with the question, “is there anyone here who is a foreign national or is barred from receiving export-controlled items in any way?”
- Learn what the term “specifically designed for” means in the ITAR and EAR.
- Monitor your purchased components for EAR or ITAR restrictions because those restriction flow up into your design.
- Use end-to-end encryption or secure FTP sites when electronically transferring controlled items.
- Release controlled items to only Empowered Officials of companies registered with the Directorate of Defense Trade Controls (DDTC).
Be sure to use the latest Destination Control Statement on all documents of controlled items.
With fines of greater than $1,000,000 per each item and prison time of up to 20 years at stake, getting smarter about Export Compliance is a great investment for every engineer.
NuWaves Export Compliance Office regularly tackles compliance issues. For more information about where to go to get smarter about Export Compliance, contact ECO@nuwaves.com. You can also learn about our AS 9100:2009 REV C and other certifications and compliances that NuWaves adheres to here.