Understanding Export Controls in Academic Research

1. UH Office of Export Controls (OEC) 1

2.  2008: ◦ Executive Policy E5.218 was promulgated; OTTED once handled export controls.  2011: ◦ OEC was established by the former Vice President for Research, Dr. James Gaines  2013: ◦ OEC was fully staffed with 3 full-time personnel; now organized under the Vice President for Research and Innovation, Dr. Vassilis Syrmos  2014: ◦ OEC website was re-launched: http://www.hawaii.edu/offices/export/ ◦ Rolling out new training to the UH System 2008: 2011: 2013: 2014: 2

3. Export Control Officer import regulation compliance from 1996 to 2007. Joined UH in 2007. Reviewed proposals, contracts, and grants at the UH Office of Research Services from 2007 to 2013. Joined the UH Office of Export Controls in 2013. Accredited export compliance professional in ITAR and EAR. Worked in the technology industry, doing export and 3

4. I) II) III) How to Identify Export Controls Scenarios IV) What to Avoid V) VI) UH Resources and Export Control Policy Developments Defining Export Controls Why Export Controls Apply to You Consequences 4

5. Defining Export Controls 5

6. Three Primary Sets of Relevant Regulations: US Dept. of Commerce Bureau of Industry and Security (BIS) US Dept. of Commerce US US Dept. of Dept. of State State US Dept. of Treasury US Dept. of Treasury Directorate of Defense Trade Controls (DDTC) Office of Foreign Assets Controls (OFAC) Export Administration Act Arms Export Control Act Trading with the Enemy Act, International Emergency Economic Powers Act, others Export Administration Regulations (EAR): 15 CFR § 730-744 International Traffic in Arms Regulations (ITAR): 22 CFR § 120- 130 U.S. Munitions List (USML), Debarred Parties Country-specific sanctions and regulations: 31 CFR § 500-599 Country Sanctions Programs and Specially Designated Nationals Commerce Control List (CCL), Parties of Concern 6

7. and regulations which control conditions under which certain strategically important information, technologies, and commodities (i.e., goods, items, equipment, etc., all of which are specifically identified in U.S. Laws and Regulations) [collectively referred to as “Export be transferred: 1) citizens); or 2) “Export Controls” are United States (US) laws strategically important information, technologies, and commodities (i.e., goods, items, equipment, etc., all of which are specifically identified in U.S. Laws and Regulations) [collectively referred to as “Export- -Controlled Information”], Controlled Information”], can overseas (outside of the US) to anyone (foreigners and US to a foreign national inside of the US. 7

8. IMPORTANT: IMPORTANT: **Export Controls apply to ALL just sponsored research! ALL activities, not **Includes RCUH activities as well. 8

9. The bottom line… Export controls are complicated! The regulations contain a whole lot of “moving parts” that require detailed analysis on a case-by-case basis. OFAC ITAR EAR 9

10. Why Export Controls Apply to You 10

11. responsibility for the identification of export control scenarios and putting protection measures in place to prevent violations... Principal Investigators ultimately have however, export control compliance is everyone’s responsibility. 11

12. How to Identify Export Controls Scenarios 12

13. How do I know if I have something that is export controlled? Step 1: Check ITAR’s US Munitions List (USML) Step 1: Check ITAR’s US Munitions List (USML) 13

14. Index of the USML http://www.pmddtc.state.gov/regulations_laws/documents/official_itar/2013/ITAR_Part_1 21.pdf Category I Category II Category III Category IV Category V Category VI Category VII Category VIII Category IX Category X Category XI Category XII Category XIII Category XIV Category XV Category XVI Category XVII Category XVIII Category XX Firearms, Close Assault Weapons, and Combat Shotguns Guns and Armament Ammunition/Ordnance Launch Vehicles, Guided Missiles, Ballistic Missiles, Rockets, Torpedoes, Bombs, and Mines Explosives and Energetic Materials, Propellants, Incendiary Agents, and Their Constituents Vessels of War and Special Naval Equipment Tanks and Military Vehicles Aircraft and Associated Equipment Military Training Equipment and Training Protective Personnel Equipment and Shelters Military Electronics Fire Control, Range Finder, Optical, and Guidance, and Control Equipment Auxiliary Military Equipment Toxicological Agents, Including Chemical Agents, Biological Agents, and Associated Equipment Spacecraft Systems and Associated Equipment Nuclear Weapons, Design, and Testing Related Items Classified Articles, Technical Data, and Defense Services Not Otherwise Enumerated Directed Energy Weapons Submersible Vessels, Oceanographic, and Associated Equipment Note: Current as of the date of this presentation. This list changes frequently. 14

15. USML Category USML Category Sub Sub Cat No. Cat No. Description Description XI: Military Electronics 3 Radar System, with capabilities such as: * (i) Search, * (ii) Acquisition, * (iii) Tracking, * (iv) Moving target indication, * (v) Imaging radar systems, (vi) Any ground air traffic control radar which is specifically designed or modified for military application. Asterisk (*) notes items designated “Significant Military Equipment” and additional requirements apply 15

16. How do I know if I have something that is export controlled? Step 2: Check EAR’s Commerce Control List Step 2: Check EAR’s Commerce Control List (CCL) (CCL) 16

17. Index of the CCL http://www.bis.doc.gov/index.php/regulations/commerce-control-list-ccl Category 0 Nuclear Materials, Facilities, and Equipment Category 1 Materials, Chemicals, Microorganisms, and Toxins Category 2 Materials Processing Category 3 Electronics Design, Development, and Production Category 4 Computers Category 5 Telecommunications, Information Security Category 6 Sensors and Lasers Category 7 Navigation and Avionics Category 8 Marine Category 9 Aerospace and Propulsion Note: Current as of the date of this presentation. This list changes frequently. 17

18. CCL CCL Category Category ECCN ECCN Description Description 6A: Sensors and Lasers, Equipment 6A006 “Magnetometers”, “magnetic gradiometers”, “intrinsic magnetic gradiometers”, underwater electric field sensors, “compensation systems”, and “specially designed” “components” therefor, as follows a.1. “Magnetometers” using “superconductive” (SQUID) “technology” and having any of the following: a.1.a. SQUID systems designed for stationary operation, without “specially designed” subsystems designed to reduce in-motion noise, and having a ‘sensitivity’ equal to or lower (better) than 50 fT (rms) per square root Hz at a frequency of 1 Hz; or a.1.b. SQUID systems having an in-motion-magnetometer ‘sensitivity’ lower (better) than 20 pT (rms) per square root Hz at a frequency of 1 Hz and “specially designed” to reduce in-motion noise 18

19. How do I know if I have something that is export controlled? Step 3: If it’s not a commodity or technology Step 3: If it’s not a commodity or technology enumerated on the USML or CCL, it is designated with an Export Control Commodity Classification Number enumerated on the USML or CCL, it is designated with an Export Control Commodity Classification Number (ECCN) called “EAR99” (ECCN) called “EAR99” 19

20. What do I do if I have something that is export controlled? Important: **Execute a Project-Specific Technology Control Plan (PSTCP) that describes what protection measures you and your research personnel will take to comply with export controls. Contact OEC for guidance. Important: 20

21. What do I do if I have something that is export controlled? ✓ If practical, restrict use to US citizens and US green card holders (i.e., permanent residents) only. ✓ If an export/deemed export must take place, contact OEC to find out if a government license is required. ◦ Not all EAR exports to all international destinations will require a license, however all ITAR exports will! ◦ If a license is required, work with OEC to complete a license application. 21

22. Email & FTP Email & FTP Purchasing Purchasing Shipments & Mailing Shipments & Mailing Visits & Exhibitions Visits & Exhibitions Meetings & Conferences Meetings & Conferences Travel Travel Phone Conversations Phone Conversations Visual Disclosure Visual Disclosure Do any of these apply to you? Do any of these apply to you? Most likely, yes, they do! Most likely, yes, they do! 22

23. Key Definitions: Key Definitions: A) Export B) Technical Data & Technology C) Deemed Export D) Foreign National 23

24. Key Definition: A) information, equipment, software, or the provision of services to a foreign person in the U.S. or abroad by any means. Key Definition: A) Export Transfer of controlled technology, Export: : 24

25. Key Definition: B) Technical information beyond basic marketing materials or general system descriptions about a controlled commodity. The terms do not refer to the controlled equipment or commodity itself, or to the type of information contained in publicly available user manuals. Key Definition: B) Technical Data & Technology Technical Data & Technology Rather, the terms technology and technical data mean specific information necessary for the development, production, manufacture, assembly, operation, repair, testing, maintenance, modification or use of a commodity. 25

26. Key Definition: Key Definition: B) B) Technical Data & Technology This information usually takes the form of blueprints, drawings, photographs, plans, diagrams, models, formulae, tables, engineering specifications, and documentation. Additionally, the deemed export rules apply to the transfer of such technical information to foreign nationals inside the US. Technical Data & Technology 26

27. Key Definition: Key Definition: C) C) Deemed Export: The release of technology or technical data about controlled commodities or software to a foreign national in the US is known as a deemed export since a transfer of technology or technical data to the foreign person is deemed to be an export to the home country of the foreign national. Deemed Export: deemed export, 27

28. Key Definition: Key Definition: D) D) Foreign National: Someone who is not a US citizen, green card holder (i.e., permanent resident), or political asylee/refugee. Foreign National: 28

29. Proper Management of an Export Control Scenario Classify commodities or technology Execute a PSTCP Keep records Identify licensing requirement Communicate potential changes Read license provisos Closeout the license before expiry Apply for license (2-6 mos.) Obtain license (good 2-4 yrs.) 29

30. A Few Special Considerations: A Few Special Considerations: A) Encryption Technology B) Services C) Ship Operations D) Air & Space E) Export Control Reform F) Hand carrying G) Unsolicited Requests 30

31. A Few Special Considerations: A Few Special Considerations: A) A) Encryption Technology: Encryption software and source code is controlled both by ITAR and EAR. Strong encryption frequently requires licenses to export and is special export exemptions (e.g. fundamental research) are not available for encryption. Encryption Technology: 31

32. A Few Special Considerations: A Few Special Considerations: B) B) Services: The furnishing of assistance (including training) to foreign persons, whether in the US or abroad in the design, development, engineering, manufacture, production, assembly, testing, repair, maintenance, modification, operation, demilitarization, or the furnishing to foreign persons of any technical data, whether in the US or abroad. Services: destruction, processing or use of defense articles; 32

33. A Few Special Considerations: A Few Special Considerations: C) C) Ship Operations: Ship Operations: US borders are 12 nautical miles from the coast • Special concerns arise regarding foreign nationals on board ships containing ITAR/EAR controlled commodities and/or technology • 33

34. A Few Special Considerations: A Few Special Considerations: D) D) Air & Space: There are a lot of developing technologies that are of concern for universities with respect to export controls. Some examples include: rockets*, satellites, unmanned aerial vehicles (drones). These technologies are still under tight controls. Air & Space: * The Missile Technology Control Annex in the USML (121.16) details controls on rockets. 34

35. A Few Special Considerations: A Few Special Considerations: D) D) Air & Space: Air & Space: Export Control Reform New rules in ITAR and EAR this year regarding satellites and spacecraft. Some items have moved from ITAR to EAR and are now controlled differently. Export Control Reform If your satellite and spacecraft technology used to be on the USML, you may want to review the USML and CCL now. 35

36. A Few Special Considerations: E) Export Control Reform A Few Special Considerations: E) Export Control Reform – – items staying on USML items staying on USML Satellites and spacecraft with unique military and intelligence functions: nuclear detection, intelligence collection, missile tracking, anti-satellite or space-based weapons, classified operation or equipment, and navigation Man-rated habitats Certain remove sensing with military applications Ground control equipment performing a uniquely military function Certain space qualified atomic clocks High performance altitude determination and control systems Certain space based thermoinic converters or generators Certain specified antennas having particular capabilities Certain space qualified optics with particular properties Space qualified FPAs having particular peak response wavelength Space qualified mechanical cryocooler Space qualified active vibration suppression Certain optical bench assemblies Certain non-communication space qualified directed energy systems Space-based kinetic or charged particle energy systems Certain thrusters for orbit adjustment Control moment gyroscopes Certain space qualified MIMICs Certain space qualified oscillators Certain high performing star trackers 36

37. A Few Special Considerations: A Few Special Considerations: F F) ) Hand carrying: Hand carrying: **Tips** Tips**– – 1) 2) Avoid it. Shipping is much wiser. If you must, hand carry only what you need. Scrub your laptop, smart phone, and other devices of things you don’t need to take. Prepare an international “No Cost” invoice before you go. See template on our website, under Forms. Obey all US and foreign export and customs requirements. Make necessary declarations. 3) 4) 37

38. G) Unsolicited Requests Principal Investigators who hold a US security clearance must contact OEC if they receive unsolicited contact or requests from individuals they do not know. Unsolicited requests are a serious red flag. 38

39. Examples of Export Controls Scenarios Examples of Export Controls Scenarios - - #1 #1 UCLA Professor (citizen of Iran) UH Camera manufacturer in Belgium Professor Emails strong encryption source code (ENC) UH Grad Student (citizen of Brazil) 39

40. Examples of Export Controls Scenarios Examples of Export Controls Scenarios - - #2 #2 Camera manufacturer in Belgium UH Professor Travels with laptop containing design for infrared camera (ITAR) 40

41. Examples of Export Controls Scenarios Examples of Export Controls Scenarios - - #3 #3 Foreign research non-profit on Maui UH Professor Meeting to discuss development of unmanned aerial vehicles for tracking wildlife (EAR) 41

42. Examples of Export Controls Scenarios Examples of Export Controls Scenarios - - #4 #4 UH Professor at a Chinese University Professor Wants to discard old sensors; gives them to colleague during visit in US (EAR) 42

43. Examples of Export Controls Scenarios Examples of Export Controls Scenarios - - #5 #5 International collaboration with university in China. Visiting scholars from China will work at UH in laboratories doing ITAR research. UH Visiting Professor from China Professor Provides a key to the lab door 43

44. Exclusions and Exemptions in Export Control Regulations: Exclusions and Exemptions in Export Control Regulations: A) Fundamental Research B) Educational Information C) Public Domain D) Bona Fide Full-Time University Employee Must read the fine print, and confirm with OEC before using. 44

45. Exclusions and Exemptions: Exclusions and Exemptions: A) A) Fundamental Research: Fundamental Research: The US export control regulations (15 CFR § 734.8(a) and (b), and 22 CFR § 120.11) provide for a Fundamental Research Exclusion (FRE) from the licensing requirements for information arising during or resulting from fundamental research conducted at an accredited institution of higher learning located in the US. If research or other activity controlled for export is eligible for the FRE, and not otherwise restricted by ITAR or OFAC regulations, foreign nationals located in the US may participate in the research. It is important to note that even though the research results ("output data") may be eligible for the FRE and accessible to foreign nationals; information received from the sponsor ("input data") may still be restricted to US persons only, depending on its export classification. 45

46. Exclusions and Exemptions: Exclusions and Exemptions: A) In general, the FRE is destroyed if UH accepts any contract clause that:  forbids the participation of foreign nationals  gives the sponsor the right to approve publications resulting from the research; or  otherwise operates to restrict participation in research and/or access to and disclosure of research results A) Fundamental Research: Fundamental Research: “Side deals” between a principal investigator (PI) and sponsor to comply with such requirements, even though it may not be stated in the research contract, may also destroy the FRE and expose both the PI and the UH to penalties for export control violations. Such side deals may also violate other UH policies. Under EAR, the FRE is not available for certain types of encryption, as detailed in 15 CFR § 734.8(a). 46

47. Exclusions and Exemptions: Exclusions and Exemptions: B) B) Educational Information: Educational Information: The ITAR exempts from export controls information concerning general scientific, mathematical, or engineering principles commonly taught in schools, colleges and universities, per 22 CFR § 120.11(a)(5). The EAR also contains an exemption from export controls, per 15 CFR § 734.9, for information that is “educational”– i.e., information released by instruction in catalog-listed courses at the university, including through lectures, instruction in teaching laboratories, and inclusion in course materials. The EAR’s “educational information” exemption also extends to software, with the exception of certain encryption software. 47

48. Exclusions and Exemptions: Exclusions and Exemptions: C) C) Public Domain: This exemption represents the broadest exclusion under the EAR and ITAR. Specifically, it allows both deemed exports as well as exports from the US of information and software that is already published, with the exception of certain encryption software. Public Domain: 48

49. Exclusions and Exemptions: Exclusions and Exemptions: C) C) Public Domain: Public Domain: While the EAR and the ITAR define “publish” somewhat differently, essentially under both regulatory regimes information becomes published when it is generally accessible to the interested public in any form such as: readily available at libraries open to the public or at university libraries; in patents and published patent applications available at any patent office; released at an open conference, meeting, seminar, trade show, other open gathering; or published in periodicals, books, print, electronic, or other media available for general distribution (including websites that provide free uncontrolled access) or for distribution 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.     49

50. Exclusions and Exemptions: Exclusions and Exemptions: D) D) Bona Fide Full The US export regulations (22 CFR § 125.4(b)(10)(i-iii) and 15 CFR § 140.13(f), for releases of ITAR-controlled technical data or EAR-controlled technology or source code to bona fide full-time regular employees of UH. Bona Fide Full- -Time University Employee: Time University Employee: 50