NASA Export Processing Template (NASA/EPT)
October 1998

Note: this NASA Export Processing Template is to be used in conjunction with the current U.S. Export Administration Regulations (15 CFR Parts 730-774) and U.S. International Traffic in Arms Regulations (22 CFR Parts 120-130)

A. Threshold inquiry : Is it necessary -- and consistent with NASA policy -- for NASA to transfer commodities, technology, or software to the foreign entity?

• If not, do not proceed with the Export Processing Template (EPT). Do not export .

B. Denied persons screen : Does the foreign party clear the Denied Persons Screen (15 CFR Part 764, Supp. 2 and Federal Register notices of DTC suspensions and the Specially Designated Nationals list ( Adobe PDF ) (15 CFR Part 764, Supp. 3))?

• If not, only "publicly available" technical data and software may be transferred.

C. Classification : Classify the commodity, technical data, or software.

• "Technical data" is defined as "specific information required for the design, development, production, manufacture, assembly, operation, use, repair, testing, maintenance, or modification of a product listed on a Control List" . Information which falls outside this definition is treated as "publicly available" technical data.
• With the exception of "publicly available" technical data and software (discussed, infra ), every commodity, technical data, and software item in the economy -- from pencils to missile guidance systems -- is subject to the export control regulations. It is therefore possible to find and classify any item to be exported on either the United States Munitions List (USML) or the Commerce Control List (CCL) -- whether specifically identified or not. If an authorized NASA official wishes in good faith to classify the item to be exported, he is welcome to do so; of course, he must be aware that such action also assumes the risk of an improper classification. Nonetheless, exporter-classifications can be time-saving, and are both very common and entirely appropriate. NASA's authorized classifying officials are HEAs, CEAs, and Project Managers. These individuals should seek advice from manufacturers, engineers, and other qualified, knowledgeable persons to assist in this process. Current versions of the USML and the CCL should also be on hand for reference.
• If a classifying official does not wish to (or is unable to) classify an item, NASA has the right to request proper classification from BIS for items reasonably believed to be on the CCL and not the USML. BIS has the duty to provide such classification, and is the agency which has the responsibility to determine whether an item or activity is subject to the EAR, including whether any item is exclusively controlled by another government agency. It is not necessary to "clear" BIS classifications with other parties.

1. Publicly available technical data and software : Is the technical data or software eligible "publicly available" via literature, library, patent, or seminar; fundamental basic and applied research where the resulting information is ordinarily published and shared broadly within the scientific community, as well as university-based, corporate, or FFRDC-based research without non-proprietary restrictions on publication of the resulting information; educational information taught in catalog courses; information contained in patent applications which are not subject to 37 CFR Part 5 secrecy orders; or basic marketing information on function or purpose or general system descriptions which the producer would make available to its closest competitors at no more than the cost of reproduction?
   • If it's publicly available, the export or transfer may be effected to any party (other than certain U.N.-embargoed countries); no license is required. A Shipper's Export Declaration (SED) is not normally required; however, if an SED is needed or used, the notation "TSPA" is appropriate for publicly available technical data and software.
2. If it's not publicly available, where is the item on the CCL or the USML?
   • What is the item's Export Control Classification Number (ECCN) on the CCL (15 CFR Part 774, Supplement 1)?; or
   • What is the item's Category Number on the USML (22 CFR Part 121)?

D. Licensing Determinations : Once the item is classified, follow each of the steps below in order . If the response to any inquiry under a number is "Yes", proceed to the next number . Do not continue further under the same number (it is unlikely that each inquiry under each number can be answered affirmatively).

• Hint : Take a look at Country Groups D & E in 15 CFR Part 740, Supplement 1 , to see if the country of destination poses general national security, proliferation, or embargo concerns.

CCL (15 CFR Part 774, Supp. 1)

• Is the item eligible for License Exception GOV (15 CFR § 740.11) (transfers to U.S. and certain foreign governments)?
• Look at the ECCN entry on the CCL and the Country Chart in 15 CFR Part 738, Supp. 1: is there no "X" under the applicable "Reason for Control" heading?; or look at the ECCN entry and the Country Group B listing in 15 CFR Part 740, Supp. 1: is the item eligible for export to the country of destination under License Exception GBS (15 CFR § 740.4)?; or
• Look at the ECCN entry: is the item eligible for License Exceptions LVS , CIV , or CTP (15 CFR §§ 740.3, 740.5, and 740.7, respectively)?; or
• For technical data and software only, is the item eligible for License Exception TSU (15 CFR § 740.13)? If not, look at the ECCN entry: is the item eligible for License Exception TSR (15 CFR § 740.6)? ( N.B. : If the export is pursuant to an international cooperative agreement, there is usually no need to obtain a letter of written assurance from the foreign partner, as all such agreements will cover the requirements of 15 CFR § 740.6); or

• For commodities and software only, is License Exception TMP available (15 CFR § 740.9) ( N.B. : beta-testing is also covered under this exception)?;or
  
• Is the export (item, end user, and end use) already authorized under a Special License ( e.g. , International Space Station Special License)? ( N.B. :Make sure you are familiar with any Special License before using it).
  
  

2. Does the foreign party clear the Nuclear Screen ( Appendix 2 ), the Missile Screen ( Appendix 3 ), and the CBW Screen ( Appendix 4 ) ( i.e. , no license is otherwise required due to proliferation concerns)?

3. Is the export consistent with the " Know Your Customer " guidance ( Appendix 5 )?

4. Are all of the prohibitions of 15 CFR § 736.2 (e.g., unlicensed transfers to Entity List parties, 15 CFR 744, Supp. 4) inapplicable to this export?

USML (22 CFR Part 121)

1. Is the item eligible for an exemption under the ITAR?

• For commodities and software only: is the item eligible for export under 22 CFR § 126.4 ? ( e.g. ,
  temporarily exported by or for NASA to a cooperating country pursuant to an international agreement under a Government Bill of Lading ) ( See Appendix 1 ) ( N.B. : some countries are not eligible for this procedure; check 22 CFR § 126.1 ); or

• For unclassified items: are the destination and end user Canadian and is the export permitted under the Canadian exemptions? (22 CFR 126.5 )
  
• Is the item an unclassified , nonoperable model which contains no parts and reveals no detailed design, development, production, or manufacturing information (22 CFR § 123.16(b)(4) )?; or

• For technical data and software only, is the item information which does not reveal detailed design, development, production, or manufacturing information (22 CFR § 125.4(b)(3) )?; or

• For technical data and software only, is the export basic operations, maintenance, or training information relating to an item lawfully exported to the same recipient (22 CFR 125.4(b)(5) )?; or

• Is the export (item, end user, and end use) already authorized under a specific waiver from DTC?
  

2. Does the foreign party clear the Nuclear Screen ( Appendix 2 ), the Missile Screen ( Appendix 3 ), and the CBW Screen ( Appendix 4 ) ( i.e. , no license is otherwise required due to proliferation concerns)?

3. Is the export consistent with the " Know Your Customer " guidance ( Appendix 5 )?

4. Are all of the prohibitions of 22 CFR § 126.1 inapplicable to this export?

E. Results (License Exception/Exemption Available) : If the answer to at least one of the questions under D1, and all of questions D2, D3, and D4 are "Yes", there is no need to obtain prior written authorization (a validated license) for the export.

• Generally, you must complete Shipper's Export Declarations (SEDs) (Form 7525-V) (with proper identifiers, license exceptions, or license numbers) and submit the SEDs to Customs. However , SEDs are generally not required for exports of publicly available technical data and software , EAR-controlled exports of technical data and software under license exceptions , or ITAR-controlled exports of unclassified technical data and software under 22 CFR § 125.4 exceptions ; other documentary requirements may pertain ( See 22 CFR § 125.6 and 15 CFR §§ 758.1 & 758.3); and . . .

• Remember: All copies of bills of lading and other shipping documents, and all controlled technical data requiring marking must contain the following statement:

"These items are licensed by the United States for ultimate destination (Country) . Diversion, retransfer, disclosure, or use contrary to applications specified in NASA agreement without prior written U.S. authorization are prohibited."

F. Results (Validated License Required) : If the answer to at least one of the questions under D1, and all of questions D2, D3, and D4 is not "Yes", an export license must be obtained. Use the following guide for items on the CCL and the USML:

G. Recordkeeping reminder : Once the item is exported, ensure that all necessary documents are provided to the HEA or CEA, as appropriate, for filing and retention.

H. Any questions? Check with the HEA or your CEA for more information.

Appendix 1

Temporary Exports of NASA Commodities, Technical Data, and Software under the ITAR

It is NASA policy, in negotiating and implementing its international cooperative project agreements, to limit exports and transfers of commodities, technical data, and software to that necessary to define and establish interfaces, to facilitate integration, and to ensure safe and successful mission operations. NASA will transfer only such items as are required to fulfill obligations undertaken in its international agreements.

Consistent with the policy stated above, temporary exports and transfers of commodities, technologies, and software are authorized under the U.S. Government exception to the International Traffic in Arms Regulations (22 CFR § 126.4(a)(2)), provided:

• The temporary export or transfer is necessary for NASA to carry out its responsibilities under a cooperative international project agreement;

• The temporary export or transfer is effected by NASA or is carried out by a NASA contractor under specific NASA direction and under a Government Bill of Lading (GBL) issued by NASA ; and

• There is no further export or transfer of the item to a foreign entity.

NASA Project Managers shall determine which commodities, technical data, and software are necessary and appropriate for export in order to implement NASA's responsibilities under international cooperative project agreements. NASA Project Managers may also direct contractors (including principal investigators and co-investigators under NASA contracts) to export such items on NASA's behalf, provided:

• The direction is provided in specific instructions in a contract related to a cooperative international project agreement; and

• The direction is given for the sole purpose of implementing NASA's obligations under such an agreement.

Appendix 2

Nuclear Screen

Review each of the following inquiries in order . If the answer to a question is "Yes", proceed to the following number. If the answer to a question is "No", prior written authorization is not required for the export or transfer. Make sure that no other aspect of the transaction indicates a need for a validated license . Remember: If NASA is informed by BIS that an Individual Validated License (IVL) is required, then prior written authorization to export or transfer must be obtained.

1. Is the end user located in a country of nuclear proliferation concern (a listing is found in 15 CFR Part 740, Supplement 1, Country Group D:2)?
   
2. Is the end user located outside Canada or a country listed in 15 CFR Part 744, Supplement 3 and directly or indirectly involved in any sensitive nuclear activities, regardless of whether the item is specifically designed or modified for such activities (see 15 CFR § 744.2(a))?

If the response to each of the above questions is "Yes", prior written authorization to export or transfer must be obtained. Also remember: No items controlled for nuclear nonproliferation purposes are currently eligible for export under Special Licenses.

Appendix 3

Missile Screen

Review each of the following inquiries in order . If the answer to a question is "Yes", proceed to the following number. If the answer to a question is "No", prior written authorization is not required for the export or transfer. Make sure that no other aspect of the transaction indicates a need for a validated license . Remember: If NASA is informed by BIS that an Individual Validated License (IVL) is required, then prior written authorization to export or transfer must be obtained.

1. Is the end user located in a country of missile proliferation concern (a listing is found in 15 CFR Part 740, Supplement 1, Country Group D:4)?
   
2. Are the items to be used in a project noted in 15 CFR Part 740, Supplement 1, footnote 1 (also 15 CFR Part 744, Supplement 1), or in the design, development, production, or use of missiles (see 15 CFR § 744.3(a)(2))?

If the response to each of the above questions is "Yes", prior written authorization to export or transfer must be obtained. Also remember: No items controlled for missile technology nonproliferation purposes are currently eligible for export under Special Licenses.

Appendix 4

Review each of the following steps in order. Make sure that no other aspect of the transaction indicates a need for a validated license. Remember; if NASA is informed by BIS that an IVL is required, then prior written authorization to export or transfer must be obtained.

1. Determine the classification number (ECCN) of the commodity to be exported. (Review 15 CFR Part 738.2 and Part 774 Supp. 1, the CCL)

2. Check the ECCN entry and corresponding country chart indicated (15 CFR Part 774, Supplement 1, and Part 738, Supplement 1)

3. Is the end user located in a country or destination of chemical-biological weapons proliferation concern? (Review 15 CFR Part 742.2.)

"Know Your Customer" Guidance

• Decide whether there are "red flags"
  Take into account any abnormal circumstances in a transaction that indicates that the export/transfer may be destined for an inappropriate end use, end user, or destination. Such circumstances are referred to as "red flags". Examples may include requests for items which are inconsistent with the needs of the partner/project, requests for equipment configurations which are incompatible with the stated destination ( e.g. , 120 volts in a country with 220 volts), or other apparent irregularities.

• If there are "red flags", inquire
  Absent any "red flags" in the information provided to NASA as part of a project, there is no affirmative duty to inquire, verify, or otherwise go behind the foreign party's representations. However, when "red flags" are raised by the information provided, responsible NASA officials have a duty to check out suspicious circumstances and inquire about the end use, end user, or ultimate country of destination.

• Do not limit incoming information sources
  Do not cut off the flow of information that comes to NASA program officials in the normal course of cooperative projects. That is, do not put on blinders to prevent the discovery of relevant information ( e.g. , do not tell potential foreign partners to refrain from discussing actual end uses, end users, or countries of destination). An affirmative policy of steps to avoid "bad" information will not insulate NASA personnel from liability, and will likely be considered an aggravating factor in enforcement proceedings.

• Reevaluate all of the information after inquiry
  Inquiry and reevaluation is intended to determine whether there are explanations or justifications for the "red flags" which have been discovered. If "red flags" can be justified, it is appropriate to proceed with the transfer/export; if not, be aware that proceeding with the transfer/export may place NASA personnel at risk of having had knowledge of a potential violation of the export control regulations.

• Refrain from the transfer/export or advise and await guidance
  If a NASA employee or official continues to have concerns about a particular transfer/export after inquiry and reevaluation, either refrain from the transfer/export or provide all relevant information to the HEA or CEA, as appropriate, and await their determination.

• Everyone needs to know how to handle "red flags"
  Knowledge possessed by NASA employees can be imputed to the agency. Thus, we must all ensure that any NASA employee's knowledge about "red flags" in a proposed transfer/export is evaluated by responsible officials. Failure to do so could be regarded as inappropriately limiting incoming information.

  Appendix 6

  Glossary

  BIS -- U.S. Department of Commerce, Bureau of Export Administration

  CBW -- Chemical and biological weapons

  CCL -- Commerce Control List, 15 CFR Part 774, Supplement 1 ( see also 15 CFR Part 738)

  CEA -- Center Export Control Administrator

  CEC -- Center Export Counsel

  CFR -- Code of Federal Regulations

  CIV -- EAR License Exception for transfers to former Soviet Bloc and PRC, 15 CFR § 740.5

  CTP -- EAR License Exception for transfers of computers & components to several tiers of countries, 15 CFR § 740.7

  DSP -- Department of State Form

  DTC -- See DDTC

  EAR -- Export Administration Regulations, 15 CFR Parts 730-799, administered by BIS

  EAR99 -- Items which are subject to the EAR but which are not specifically listed on the CCL, 15 CFR § 734.3(c)

  ECCN -- Export Control Classification Number, located on CCL

  ECP -- NASA's Export Control Program

  EPT -- NASA's Export Processing Template

  GBL -- Government Bill of Lading

  GBS -- EAR License Exception for transfers to Free World destinations of low-level items, 15 CFR § 740.4

  GOV -- EAR License Exception for transfers to U.S. Government and cooperating foreign governments, 15 CFR § 740.11

  HEA -- NASA Headquarters Export Control Administrator

  HEC -- NASA Headquarters Export Counsel

  ITAR -- International Traffic in Arms Regulations, 22 CFR Parts 120-130, administered by DDTC

  IVL -- Individual Validated License (prior written authorization from the Government to export), 15 CFR Part 748

  LVS -- EAR License Exception for shipments of limited value, 15 CFR § 740.3

  NLR -- SED notation for items which are subject to the EAR but which do not require a license accordingto the Country Chart, 15 CFR § 758.1(a)(3)

  DDTC -- U.S. Department of State, Office of Defense Trade Controls

  SED -- Shipper's Export Declaration, 15 CFR § 758.3 and 22 CFR § 123.22

  TMP -- EAR License Exception for temporary exports of commodities and software, 15 CFR § 740.9

  TSPA -- SED notation for publicly available technical data and software (if required), 15 CFR § 758.1(a)(5)

  TSR -- EAR License Exception for restricted technical data and software, 15 CFR § 740.6

  TSU -- EAR License Exception for unrestricted technical data and software, 15 CFR § 740.13

  USML -- United States Munitions List, 22 CFR Part 121

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