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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 ellisk@email.arizona.edu Stephen B. Hall Sr. Policy Analyst Department of Commerce

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export controls just the basics how to keep your faculty and researchers out of trouble

Export Controls: Just the BasicsHow to Keep Your Faculty and Researchers out of Trouble!

Kay Ellis

Director, Export Control Compliance

University of Arizona

(520) 626-2437 ellisk@email.arizona.edu

Stephen B. Hall

Sr. Policy Analyst

Department of Commerce

Office of Exporter Services

university commitment is key

University Commitment is Key!

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.

presentation overview

Export Regulations & Terms

PresentationOverview

Fundamental Research

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

what export regulations most likely affect your research projects
What export regulations most likely affect your research projects?
  • EAR: Export Administration Regulations; U.S. Department of Commerce – Bureau of Industry and Security
  • ITAR: International Traffic in Arms Regulations; U.S. Department of State – Directorate of Defense Trade Controls
  • OFAC: U.S. Department of Treasury – Office of Foreign Assets Control
controlled technologies
Controlled Technologies

COMMERCIAL APPLICATIONS

SPACE, ROCKETs & MILITARY APPLICATIONS

slide7

EAR

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)

ear commerce control list ccl categories

EAR Commerce Control List (CCL) 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, & Related Equipment

www.access.gpo.gov/bis/ear/ear_data.html

slide9
Stephen Hall

BIS,

Office of Exporter services

slide10

ITAR

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

long reach of the itar

Long Reach of the ITAR

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

itar u s munitions list usml

ITAR U.S. Munitions List (USML)

I Firearms, Close Assault Weapons and Combat Shotguns

II Guns and Armament

III Ammunition/Ordnance

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.)

http://www.pmddtc.state.gov/regulations_laws/itar.html

slide13

OFAC

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

www.treasury.gov/about/organizational-structure/offices/Pages/Office-of-Foreign-Assets-Control.aspx

terms export what is it and how can it occur

Terms: Export – what is it and how can it occur?

An export is the transfer of export controlled information, technical data, technology, commodities or software

Exports can occur in many ways:

Email

Mail, shipping

Face-to-Face

Visual inspection that reveals technical data

Conferences

Hand-carried items – laptop, memory devices

Affects non-U.S. citizens working on research

terms defense service

Terms: Defense Service

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.

slide18

Terms: Technical Data or Technology

  • Technical Data or Technology is information required for the design, development, production, manufacture, assembly, operation, repair, testing, maintenance or modification of an export controlled item.
  • The information can be in the form of
      • blueprints, drawings, models, photographs, plans, instructions and documentation; tech data
      • includes software related to an export controlled item
slide19

What’s not covered by the regulations?

  • Information in the public domain
  • Information excluded under the Fundamental Research Exclusion (FRE)
  • Basic marketing descriptions
  • Artistic or non-technical publications
published information available to the public

Published information available to the public:

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 research nsdd 189

Fundamental Research NSDD-189

“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.”

limits to fundamental research exclusion subject to export controls or other prohibitions
Limits to Fundamental Research Exclusion – Subject to Export Controls or Other Prohibitions
the fre can be lost if

The FRE can be lost if…

Sponsor approval required prior to publication

Publication of the results of the project restricted

Access and dissemination restrictions are in the contract (ITAR controlled)

non sponsored research

Non-Sponsored Research

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

putting it in perspective when is a license needed for a research project

Putting it in Perspective – when is a license needed for a research project?

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

so now you need a license

So now you need a License!

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

bona fide employee exemption itar

Bona fide Employee Exemption (ITAR)

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

bona fide employee exemption itar1

Bona fide Employee Exemption (ITAR)

Exemption ONLY applies to the specific university project personnel and not to the project sponsor or another third party!

technology control plan tcp

Technology Control Plan (TCP)

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

when do you need a tcp

When do you need a TCP?

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!

export controls travel and research outside the u s

Export Controls: Travel and Research Outside the U.S.

There could be export control issues if you are –

Physically taking items with you on a trip such as

Laptop

Encryption software products on your laptop

Cell phones/PDAs

Data/technology

Blueprints, drawings, schematics

Other “tools of the trade”

Shipping items

Transferring controlled information to a foreign collaborator

export controls travel and research outside the u s1

Export Controls: Travel and Research Outside the U.S.

The OFAC regulations affect activities in sanctioned countries such as:

Money transactions

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

what does this mean

What does this mean?

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!

what does this mean the good news

What does this mean? The good news…

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

ear exceptions

EAR Exceptions

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!

voluntary disclosures

Voluntary Disclosures

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!

the cost of noncompliance ofac

The Cost of Noncompliance - OFAC

Criminal: $50K TO $10M per violation and 10 to 30 years imprisonment

Civil: $11K to $1M per violation

Examples:

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

the cost of noncompliance ear

The Cost of Noncompliance - EAR

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

Examples:

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)

the cost of noncompliance itar

The Cost of Noncompliance - ITAR

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

the butler case

The Butler Case

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.

the roth case

The Roth Case

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.