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Export Controls: Just the Basics How to Keep Your Faculty and Researchers out of Trouble!. Kay Ellis Director , Export Control Compliance University of Arizona (520) 626-2437 firstname.lastname@example.org Stephen B. Hall Sr. Policy Analyst Department of Commerce
Director, Export Control Compliance
University of Arizona
(520) 626-2437 email@example.com
Stephen B. Hall
Sr. Policy Analyst
Department of Commerce
Office of Exporter Services
The export of certain data, technologies, software and hardware is regulated and controlled by Federal law for reasons of national security, foreign policy, prevention of the spread of weapons of mass destruction, and for competitive trade reasons. As University employees, we are required to comply with applicable export control laws and regulations.
We will take a look at how the regulations impact research conducted in the U.S. and abroad. We will look at export control terminology, fundamental research, technology control plans, license exceptions, travel outside the U.S., and the cost of noncompliance.
TCPs and License Exceptions
Travel Outside the U.S.
Cost of Noncompliance
SPACE, ROCKETs & MILITARY APPLICATIONS
Covers dual use items
Items regulated have a commercial and a military use
Covers goods, test equipment, materials and the software and technology
Each item has an export control classification number (ECCN)
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, & Related Equipment
Office of Exporter services
Covers military items found on the United States Munitions List (USML)
Includes most space related technologies
Includes technical data related to defense articles and services
Policy of denial for exports to certain countries
See 22 CFR 126.1 for up-to-date list
ITAR also includes
Civil application items adapted or modified for military application
Dual-use items that contain or use ITAR controlled articles/technology
Public domain info used to modify an ITAR item
I Firearms, Close Assault Weapons and Combat Shotguns
II Guns and Armament
IV Launch Vehicles, Guided Missiles, Ballistic Missiles, Rockets, Torpedoes, Bombs and Mines
V Explosives and Energetic Materials, Propellants, Incendiary Agents and Their Constituents
VI Vessels of War and Special Naval Equipment
VII Tanks and Military Vehicles
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
XIII Auxiliary Military Equipment
XIV Toxicological Agents, Including Chemical Agents, Biological Agents, and Associated Equipment
XV Spacecraft Systems and Associated Equipment
XVI Nuclear Weapons, Design and Testing Related Items
XVII Classified Articles, Technical Data and Defense Services Not Otherwise Enumerated
XVIII Directed Energy Weapons
XX Submersible Vessels, Oceanographic and Assoc. Equipment
XXI Miscellaneous Articles (Software, components, etc.)
Economic sanctions focus on end-user or country
“Specially Designated Nationals List” – restricted entities and parties
Providing “something of value”
Most highly sanctioned countries: Cuba, Iran, North Korea, Sudan, and Syria
An export is the transfer of export controlled information, technical data, technology, commodities or software
Exports can occur in many ways:
Visual inspection that reveals technical data
Hand-carried items – laptop, memory devices
Affects non-U.S. citizens working on research
A defense service means the furnishing of assistance (including training) to a foreign person whether in the U.S. or abroad relative to a defense article. It also includes furnishing technical data relative to a defense article.
defense article. It also includes furnishing technical data relative to a defense article.
Through sales in bookstores
At public libraries
Through published patents
Through distribution at a conference in the U.S.
Through educational materials related to catalog courses in associated labs and universities
“Fundamental Researchmeans 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 . . . the results of which ordinarily are restricted for proprietary or national security reasons.”
Sponsor approval required prior to publication
Publication of the results of the project restricted
Access and dissemination restrictions are in the contract (ITAR controlled)
Research projects conducted with no sponsor could have export control issues
Proprietary research has export implications
Foreign nationals on projects could be an issue
All research projects need export control review
An export license might be needed if….
The researcher plans to employ a non-U.S. citizen to work on an export controlled research project
The researcher wants to collaborate with a foreign person or government
Applying for a license takes time!
Requires input from the researcher, foreign grad student, or foreign collaborator
License must be in place before work begins
In addition to the license, you will need a technology control plan
Required export control training must be completed
Agreement will not be signed until a license and/or TCP are in place and export training completed
Applies to foreign persons who are full-time regular employees (no grad students regardless of hours worked) of U.S. institutions of higher education with permanent abodes in U.S. throughout employment
Exemption ONLY applies to the specific university project personnel and not to the project sponsor or another third party!
In some situations it is possible to put a TCP in place instead of applying for a license
Required export control training must be completed
A TCP is simply a plan that secures the project information from access by non-U.S. citizens
TCP template - Export Control website: http://orcr.vpr.arizona.edu/export-control/processes
With a DDTC Technical Assistance Agreement (TAA)
With a BIS Deemed Export license
When an agreement does not allow foreign nationals
When a non-disclosure agreement indicates certain controlled information will be discussed, exchanged, or stored on campus
With ITAR controlled research projects
In other words, in conjunction with any project or agreement that involves ITAR controlled technology, equipment or information!
There could be export control issues if you are –
Physically taking items with you on a trip such as
Encryption software products on your laptop
Blueprints, drawings, schematics
Other “tools of the trade”
Transferring controlled information to a foreign collaborator
The OFAC regulations affect activities in sanctioned countries such as:
The exchange of goods and services - Affects teaching, research collaborations, programs, attending or setting up conferences
Travel to the country and what you take
Doing business with certain people or entities
The bad news….
An EAR, ITAR, or OFAC license could be required – it depends on:
What you are taking,
Where you are going,
Who you will be collaborating with,
And your activities in that country
There are consequences if you violate the regulations!
Travel to most countries does not usually constitute an export control problem!
If you do need to work with EAR export controlled information, equipment, etc., there are license exceptions that can be used
Taking a “clean” laptop to mostcountries – no license required or exception needed
Issue if taking to Cuba, Syria, Iran, North Korea or Sudan
Items, software, and presentations should be evaluated before travel
TMP – “tools of the trade” (UA owned laptops, equipment)
BAG – baggage (personal laptops, equipment)
NOTE: License exceptions not available for ITAR items or
information – license required!
If you think the regulations have been violated, immediately notify the Export Control Officer
It is better to self-disclose than not say anything
Honest errors are acceptable but gross negligence is punishable
Violations are civil and criminal---Fines and jail time!
Criminal: $50K TO $10M per violation and 10 to 30 years imprisonment
Civil: $11K to $1M per violation
1. Augsburg College, Minneapolis, MN fined $9,000 for 4 trips to Cuba; attorney negotiated reduction in fine from $36,000
2. ING Bank settled for multiple violations - $619,000,000
3. University fined $100,000 for shipping to denied entity
Criminal: $50K to $1 million or 5 times value of export, whichever is greater, per violation, 10 years imprisonment
Civil: revocation of exporting privilege, fines $10K-$120K per violation
1. Bass-Pro - $510K for shipping guns without a license
2. ITT fined $100M for exporting night vision materials without license
3. Dr. Thomas Butler, Texas Tech – made fraudulent claims and unauthorized exports (plague bacteria)
Criminal: Up to $1 million per violation and 10 years imprisonment
Civil: seizure and forfeiture of article, revocation of exporting privilege, up to $500,000 fine per violation
Professor Roth (University of Tennessee) convicted on 9/3/08 and sentenced to four years imprisonment
Dr. Thomas Butler, a professor at Texas Tech, reported to the FBI that 30 vials of plague bacteria were missing and presumed stolen from his lab. The investigation proved that Dr. Butler had illegally exported the plague bacteria to Tanzania without a BIS export license. He was convicted of making false and fictitious statements to the FBI and making an unauthorized export to Tanzania.
Penalty: Dr. Butler was convicted of forty-seven counts of a sixty-nine count indictment that stemmed from BIS's investigation.
He was sentenced to two years in prison on March 10, 2004, and fired from Texas Tech.
Professor John Roth, University of Tennessee, was convicted of illegally exporting ITAR military technical data related to a USAF contract about advanced plasma technology for use on an unmanned air vehicle. He also gave information about the technology to an Iranian and a Chinese student without a license. Roth traveled to China and presented a lecture about the technology. When he returned, the FBI confiscated his laptop and flash drive.
Penalty: Dr. Roth was sentenced to 48 months in prison for violating the Arms Export Control Act by illegally exporting ITAR controlled technical information.