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Export Compliance Workshop for University Folks: The Basics April 2008. NCURA Western Regional Conference Adilia F. Koch. Overview. Export Basics What are Strategic Technologies? What is your Responsibility? The Myths about Export Fundamental Research Exclusion (FRE) Know the limits.
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NCURA Western Regional Conference
Adilia F. Koch
$1 million per violation.
(See attached Sanctioned/Embargoed Country Resource page.)
Various controls apply: End-use/End-user
Commerce Control List Categories
0 = Nuclear materials, facilities and equipment (and miscellaneous items)1 = Materials, Chemicals, Microorganisms and Toxins2 = Materials Processing3 = Electronics4 = Computers5 = Telecommunications and Information Security6 = Sensors and Lasers7 = Navigation and Avionics8 = Marine9 = Propulsion Systems, Space Vehicles, and Related Equipment
USML Categories (The ITAR)
IV Launch Vehicles, Guided Missiles, Ballistic Missiles, Rockets, Torpedoes, Bombs, and Mines
V Explosives and Energetic Materials, Propellants, IncendiaryAgents, and Their Constituents
VI Vessels of War and Special Naval Equipment
VIII Aircraft and Associated Equipment
IX Military Training Equipment and Training
X Protective Personnel Equipment and Shelters
XI Military Electronics
XII Fire Control, Range Finder, Optical and Guidance and Control Equipment
XIV Toxicological Agents, Including Chemical Agents, Biological Agents, and Associated Equipment
XV Spacecraft Systems and Associated Equipment
XX Submersible Vessels, Oceanographic and Assoc. Equipment
XXI Miscellaneous Articles (Software, components, etc.)
Kathleen Reneau Lorenzi
Fundamental Research ( 15 CFR 734.8 .a) (EAR)
“The intent behind these rules is to identify as “fundamental research” basic and applied research in science and engineering, where the resulting information is ordinarily published and shared broadly within the scientific community. Such research can be distinguished from proprietary research and from industrial development, design, production, and product utilization, the results of which ordinarily are restricted for proprietary reasons or specific national security reasons.”
NSDD 189, September 21, 1985
PURPOSE This directive establishes national policy for controlling the flow of science, technology, and engineering information produced in federally-funded fundamental research at colleges, universities, and laboratories. Fundamental research is defined as follows:
University Based Research (15 CFR 734.8 b)(EAR)
Reference 15 CFR 734, Supplement 1
Published Information and Software (EAR)
(a) “Information is “published” when it becomes generally accessible to the interested public in any form, including:
(1) Publication in periodicals, books, print, electronic, or any other media available for general distribution to any member of the public or to a community of persons interested in the subject matter, such as those in a scientific or engineering discipline, either free or at a price that does not exceed the cost of reproduction and distribution .”
(b) “Software and information is published when it is available for general distribution either for free or at a price that does not exceed the cost of reproduction and distribution.”
Public domain. (ITAR 22 CFR 120.11)
Public domain means information which is published and which is generally accessible or available to the public:
1) Through sales at newsstands and bookstores;
2) Through subscriptions which are available without restriction to any individual who desires to obtain or purchase the published information;
3) Through second class mailing privileges granted by the U.S. Government;
4) At libraries open to the public or from which the public can obtain documents;
5)Through patents available at any patent office;
6) Through unlimited distribution at a conference, meeting, seminar, trade show or exhibition, generally accessible to the public, in the United States;
OBTAINING AUTHORITY TO PUBLISH COGNIZANT U.S. GOVERNMENT:
Through public release (i.e., unlimited distribution) in any form (e.g., not necessarily in published form) after approval by the cognizant U.S. government department or agency (see also Sec. 125.4(b)(13) of this subchapter);
(8) Through fundamental research in science and engineering at accredited institutions of higher learning in the U.S. where the resulting information is ordinarily published and shared broadly in the scientific community. Fundamental research is defined to mean 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 the results of which are restricted for proprietary reasons or specific U.S. 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 U.S. Government and specific access and dissemination controls protecting information resulting from the research are applicable.
Office of Foreign Asset Control – (Department of the Treasury) “administers and enforces economic and trade sanctions based on US foreign policy and national security goals against targeted foreign countries, terrorists, international narcotics traffickers, and those engaged in activities related to the proliferation of weapons of mass destruction. OFAC acts under Presidential wartime and national emergency powers, as well as authority granted by specific legislation, to impose controls on transactions and freeze foreign assets under US jurisdiction.”
“OFAC was formally created in December 1950, following the entry of China into the Korean War, when President Truman declared a national emergency and blocked all Chinese and North Korean assets subject to U.S. jurisdiction.”
And, then there is OFAC
International Emergency Economic Powers Act (“IEEPA”) - 50 USC 35 (War & National Defense, International Emergency Economic Powers)
OFAC Country Sanctions Programs – Executive Order 13224
Bank Secrecy Act – 31 USC 5311-5314, 5316-5332
“to require certain reports or records where they have a high degree of usefulness in criminal, tax, or regulatory investigations or proceedings, or in the conduct of intelligence or counterintelligence activities, including analysis, to protect against international terrorism. “
#1: The Fundamental Research Exclusion means Caltech is not subject to the Export Regulations.
#2: My Faculty can publish anything including export controlled information received from a 3rd party.
#3 My freight forwarder or Custom Broker is responsible for the accuracy of the information contained in my shipping documents.
#4 I’m not selling anything so my shipment has a zero $ value.
Adilia F. Koch
Director of Export Compliance
California Institute of Technology
Phone: (626) 395-4469
Fax: (626) 795-4571
Kathleen Reneau Lorenzi, CPCM
The University of Colorado at Boulder
Lists to Check: The following lists may be relevant to your export or re-export transaction.
Imports -- Harmonized Tariff Code (HTS #) http://www.usitc.gov/tata/hts/bychapter/index.htm
Schedule B (US Census) http://www.census.gov/
Dr. Harold BrownCo-ChairmanCenter for Strategic & International Studies1800 K Street, N.W.Washington, D.C. 20006 NSDD-189
Dear Dr. Brown:
Thank you for conveying the concerns of the Council on the Future of Technology and Public Policy regarding export controls and fundamental research. On behalf of the President, I would like to respond to your comments on this matter.
The key to maintaining U.S. technological preeminence is to encourage open and collaborative basic research. The linkage between the free exchange of ideas and scientific innovation, prosperity, and U.S. national security is undeniable. This linkage is especially true as our armed forces depend less and less on internal research and development for the innovations they need to maintain the military superiority of the United States. In the context of broad-based review of our technology transfer controls that will begin this year, this Administration will review and update as appropriate the export control policies that affect basic research in the United States. In the interim, the policy on the transfer of scientific, technical, and engineering information set forth in NSDD-l89 shall remain in effect, and we will ensure that this policy is followed.
Again, thank you for your views on this important matter. I hope that we will be able to draw upon the Council's expertise as we review this issue in the coming months.
Condoleezza Rice, Assistant to the President for National Security Affairs