1 david t. flynn nasa headquarters export administrator u.s. export control laws and regulations...
TRANSCRIPT
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David T. FlynnNASA Headquarters Export Administrator
U.S. Export Control Laws and Regulations & NASA’s Export Control Program
APPEL - International Program Management #14July 22, 2015
Export Control Awareness Video
What are Export Controls and why are they important?
How does NASA implement them?
Case Studies and Exercises
Questions
Agenda
Export Control Awareness Video
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Sharing technical data or technology
Shipping items to foreign persons or destinations
Requesting Foreign National Access, escorting foreign nationals, or hosting meetings/tours with foreign nationals
Producing Scientific and Technical Information (STI)
Obtaining licenses for exports
Disposing of NASA property
Traveling to foreign countries
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This Training Applies to You.
All roles at NASA may involve elements of export control, but especially if your job entails:
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What are Export Controls?
Export controls are restrictions applied by the U.S. government to the transfer of certain goods, services, software, technical data, and technology to foreign entities.
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What is an Export?
An export is the transfer of anything to a foreign person or a foreign destination by any means, anywhere, anytime.
An export can involve a commodity, software, technical data, technology, and/or providing a defense service.
Exposure is disclosure.
The International Traffic in Arms Regulations (ITAR)
22 CFR 120-130
Control the export of goods and technical data on the United States Munitions List (USML) and certain items on the Missile Technology Control Regime (MTCR) Annex.
USML items are mainly “military” in nature, with a limited number of “dual-use” items.
State Department is the authority
Export Control Regulations
The Export Administration Regulation (EAR)
15 CFR 730-774
Regulations which control the export of goods and technology on the Commerce Control List (CCL), including certain items on the Missile Technology Control Regime Annex.
Items on the CCL are typically referred to as “dual-use” items.
Commerce Department is the authority
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 – Surface Vessels of War and Special Naval Equipment
VII - Ground Vehicles
VIII - Aircraft and Related Articles
IX - Military Training Equipment and Training
X - Personal Protective Equipment
United States Munitions List (USML)
XI - Military Electronics
XII - Fire Control, Range Finder, Optical and Guidance and Control Equipment
XIII - Materials and Miscellaneous Articles
XIV - Toxicological Agents, Including Chemical Agents, Biological Agents, and Associated Equipment
XV - Spacecraft and Related Articles
XVI - Nuclear Weapons Related Articles
XVII - Classified Articles, Technical Data and Defense Services Not Otherwise Enumerated
XVIII - Directed Energy Weapons
XIX - Gas Turbine Engines and Associated Equipment
XX - Submersible Vessels and Related Articles
XXI - Articles, Technical Data, and Defense Services Not Otherwise Enumerated
Category 0 - Nuclear Materials, Facilities and Equipment and Misc.
Category 1 - Materials, Chemicals, Microorganisms and Toxins
Category 2 - Materials Processing
Category 3 - Electronics
Category 4 – Computers
Category 5 - Telecommunications
and Information Security
Category 6 - Lasers and Sensors
Category 7 - Navigation and Avionics
Category 8 - Marine
Category 9 - Propulsion Systems, Space Vehicles and Related Equipment
Commerce Control List (CCL)
Commerce Control List (CCL)Commerce Control Category List
0 Nuclear Materials, Facilities, And Equipment (and
Miscellaneous Items)
1 Materials, Chemicals, Microorganisms and Toxins
2 Materials Processing
3 *Electronics Design, Development, and Products
4 *Computers
5 Part 1 *Telecommunications
5 Part 2 Information Security
6 *Sensors and Lasers
7 *Navigation and Avionics
8 Marine
9 *Aerospace and Propulsion
Five Product GroupsA Systems, Equipment and
ComponentsB Test, Inspection and
Production EquipmentC MaterialD SoftwareE Technology
*Primary categories NASA handles.
9A004 is the ECCN for the International Space
Station. Use Supplement 1 to 15 CFR §774 for the full
list of ECCNs.
9 = Aerospace and Propulsion
A = Systems, Equipment and
Components
004 = Item number
9A004
Export Control Classification Number (ECCN)
The International Traffic in Arms Regulations (ITAR)
– Technical Data
Information which is required for the design, development, production, manufacture, assembly, operation, repair, testing, maintenance, or modification of “defense articles”; classified information related to defense articles; information covered by an invention secrecy order; software directly related to defense articles.
Technical Data and Technology
The Export Administration Regulation (EAR)
- Technology
Specific information necessary for the “development”, “production”, or “use” of a product. The information takes the form of “technical data” or “technical assistance”. Technology” is also specific information necessary for any of the following: operation, installation, maintenance, repair, overhaul, refurbishing, or other items specified in ECCNS on the CCL that control “technology”.
Does not include information concerning general scientific, mathematical or engineering principles commonly taught in schools, colleges and universities or information in the “public domain”. Does not include basic marketing information on function or purpose or general system descriptions of items.
Destinations:
Country
Company/Entity
Individual
Activities:
Defense service - the furnishing of assistance (including training) to foreign persons, whether in the United States or abroad in the design, development, engineering, manufacture, production, assembly, testing, repair, maintenance, modification, operation, demilitarization, destruction, processing, or use of defense articles.
Nuclear-missile-biological nonproliferation support
Controls Are Not Just the Lists
License – a written document issued by the Government permitting the transfer of specific goods, services, software or technology for a specific purpose to a specific entity.
License Exception/Exemption – authorization to transfer goods, services, software or technology without a license. The transfer must satisfy all conditions for use that are published in the appropriate regulations. NASA commonly uses this authorization in conjunction with an international Space Act agreement to accomplish its international programs
Technical Assistance Agreement – an agreement to perform a defense service or transfer certain technical data between U.S. and foreign parties. These agreements are reviewed and approved by State Department and are used by NASA contractors and NASA’s international partners/contractors to accomplish joint programs that involve ITAR controlled defense articles.
Other Authorizations – “No license required” under the EAR when there are no list, destinations, activity or entity based license requirements for a particular export transaction.
Types of Authorizations
123.4(a) & (b) – Temporary imports 123.16(b) – Exports of parts, components,
models 125.4(b)(1) – Technical data exports
directed by DOD 125.4(b)(3) – Technical data exports
directed by USG agency 125.4(b)(5) – Technical data exports for
lawfully exported articles 125.4(b)(7) – Technical data returned to
sender
125.4(b)(10) – Technical data disclosed to university employees
125.4(b)(11) – Technical data authorized by DTC written exemption
125.4(b)(13) – Publicly available data about defense articles
125.5(c) – Plant visits 126.4(a) – Exports by or for USG agency 126.4(c) – Imports/Exports for use by USG
agency abroad 126.5 – Canadian Exemptions
The ITAR in Civil Space; Commonly-used ITAR License Exemptions
Unless a license exemption exists for which the export qualifies, NASA seeks and obtains export licenses from State
GOV (15 CFR § 740.11) Governments & International Org.
GBS (15 CFR § 740.4) Country Group B Shipments
RPL (15 CFR § 740.10) Servicing and Replacement
LVS (15 CFR § 740.3) Limited Value Shipments
CIV (15 CFR § 740.5) Civil End-Users
APP (15 CFR § 740.7) Computers
TSU (15 CFR § 740.13) Technology & Software Unrestricted
TSR (15 CFR § 740.6) Technology & Software Restricted
TMP (15 CFR § 740.9) Temporary Imports & Exports
ENC (15 CFR § 740.17) Encryption Commodities & Software
STA (740.20) Strategic Trade Authorization
The EAR in Civil Space; Commonly-used EAR License Exceptions
CAUTION - Only use an exception after reading all conditions & provisions and ensuring it applies to your particular situation
Unless a license exception exists for which the export qualifies, NASA seeks and obtains export licenses from BIS
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Why Are They Important?
Due to NASA’s core mission with space, aeronautics, and science focus and international collaboration, the Agency has a unique responsibility to safeguard the sensitive technologies that are crucial for our national security and our missions.
Much of NASA’s advanced technology and hardware is either regulated by the International Traffic in Arms Regulations (ITAR) or by the Export Administration Regulations (EAR).
The Agency’s Export Control Program ensures that all NASA exports are conducted in accordance with United States export control laws and regulations.
NASA’s Export Control Operations Manual provides standard processes to implement the Export Control Program across all Centers.
All NASA employees have a responsibility to adhere to export control laws and regulations and follow the requirements and processes established by NASA’s Export Control Program.
Authorization Act 2000 (P.L. 106-391) Prohibits the export of satellites and related equipment to China Requires NASA to certify to Congress at least 15 days before any agreement with the PRC
that: the technology transfer is not detrimental to the U.S. space launch industry, and will not improve PRC ballistic missile or space launch capabilities
Continuing Appropriations Act, 2014 (P.L. 113-76) Prohibits NASA and OSTP use of funds to develop, design, plan, …or execute a bilateral
policy, program, order, or contract of any kind to participate, collaborate, or coordinate bilaterally in any way with China or any Chinese-owned company unless such activities are specifically authorized by law enacted after date of this enactment.
Also applies to funds used to effectuate the hosting of official Chinese visitors at NASA facilities
Grant Information Circular (GIC 12-01A)
Restrictions on China
Export Control Awareness Video
What are Export Controls and why are they important?
How does NASA implement them?
Case Studies and Exercises
Questions
Agenda
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NASA export control policies, requirements, and processes are stated in the following documents:
NASA’s Export Control Documents
NASA Export Control Policy Directive
NPD 2190.1B
NASA Export Control Procedural Requirements
NPR 2190.1B
NASA Export Control Operations Manual
NAII 2190.1
Policies
Requirements
Processes
In addition to Agency policies, requirements, and processes, NASA personnel are expected to adhere to Center-specific processes in place.
“It is NASA policy to ensure that exports and transfers of commodities, technical data, or software to foreign persons are carried out in accordance with United States export control laws and regulations, and Administration and NASA policy.”
- -NPD 2190.1, Section 1.a.
“We want to maximize the benefits of our international efforts while ensuring that we comply with U.S. export control laws and regulations. This is the personal responsibility of each employee.”
-NPR 2190.1B, Section P.1.
Compliance is Part of the NASA Mission
Compliance is everyone’s job at NASA
Organizations Involved in ECP
No exports of controlled items to any foreign entity under any NASA program unless the exporter is confident that such exports are in conformity with approved contracts or international agreements and U.S. export control laws and regulations
Generally, NASA exports to foreign entities are only conducted in furtherance of NASA international agreements or contracts
Key Concepts in NPR 2190.1B
NASA Project Managers have “export control” responsibilities under NPR 2190.1B
NASA program and project managers shall include "export control milestones" in their program and project plans and should collaborate with HEA/CEAs early in a project's life cycle (prior to the mission definition review) to identify and assess export-controlled technical data that will be provided to foreign partners, and other activities as appropriate, to ensure that export control matters are considered and resolved in advance of shipping or transfer dates.
Include appropriate safeguards for commodities, technologies, and software exported pursuant to international agreements or contracts; controlled technical data & commodities should be marked or identified in accordance with the Transfer of Goods and Technical Data Clause of the relevant international agreement
Provide necessary information to HEA/CEAs for determination re: need for validated export licenses Meet all deadlines for submission of export licenses Include a Technology Transfer Control Plan (TTCP), where appropriate, for programs with international
involvement Support export control training for program/project personnel Maintain oversight of NASA-directed contractor export activities, including concurrence on the use of NASA-
authorized Exemptions, use of NASA-obtained Licenses, and requiring that copies of all export records (AES, GBLs, waybills, invoices) be submitted to NASA
Project Managers’ Responsibilities
NASA Contractors and Export Control NASA reviews licenses, general correspondence, commodity jurisdictions, and
agreements that industry submits to the Department of State and to the Department of Commerce, which are related to NASA”
NASA contractors, should be coordinating with NASA in advance of any license application that will further a NASA program
NPD/NPR 2190 is applicable to NASA contractors and grantees as required in their contracts or grants
Contractor is responsible for export compliance in the execution of contracted work (NFS 1825.1103-70 and 1852.225-70) Except when NASA directs or authorizes a contractor to effect exports using a
NASA-obtained IVL or GBL NFS Clause 1852.225-70 “Export Licenses” – required in all domestic contracts Contractors have responsibility to obtain any required licenses unless otherwise
agreed with NASA
NASA’s International Agreements - the basis for NASA foreign cooperative (or reimbursable) activity
Define the responsibilities of the parties, scope of the work to be performed, & the terms and conditions under which the cooperation will be effected
All NASA International Agreements contain a clause on transfers of controlled goods & data
NASA’s International Agreements do NOT trump export control laws & regulations
NASA’s International Agreements
An International Agreement does not replace a contractor’s need for a Technical Assistance Agreement
• ARC– Mary Williams/CEA– Gabe Lozano/ACEA– George Sloup/CEC
• AFRC– Dave Baptiste/CEA– Dave Samuels/CEC
• GSFC/WFF/IV&V/GISS/CSBF– Tom Weisz/CEA– Carolyn Lott/ACEA– David Schuman/CEC
• JPL/NMO– Robert Jones/CEA
• JPL/Caltech– Reed Wilcox/CEA– Rachael Skinner/ACEA
• JSC/WSTF– Ari Blum/CEA– Judy Elam/ACEA– Karen Walsemann/ACEA– Rebecca Bresnik/CEC
• KSC– Bill Roy/ CEA– Doug Lesho/ECS– Shelley Ford/CEC
• LaRC– Angela DiGiosaffatte/CEA– Eric Rissling/CEC
• GRC– Steve Fedor/CEA– Callie West/CEC
• MSFC/MAF– Rip Nabors/CEA– Vanita Brown/ACEA– Jim McGroary/CEC
• NSSC– John Cogley/CEA– Troy D. Taylor/CEC
• SSC– Ken Griffey/CEA – John Schreck/ACEA– Wendy Houser/CEC
Where Can I Get Help?
Call Washington:
David Flynn or Ken Hodgdon 202-358-1792
or -0535
http://oiir.hq.nasa.gov/nasaecp/contacts.html
Export Control Operations Manual
The Ops Manual is intended to answer the following questions concerning NASA’s Export Control Program (ECP):
What is an export and export control?
When is export necessary?
Who is authorized to approve an export in the Agency?
Where to find information and resources for questions?
How to conduct various export related activities?
Understand the authority and the necessity for the “export” - NASA/Foreign Partner Agreement, etc.
“Classify” the item(s) to be exported (hardware, software, technical data) and mark them.
Determine if the item is eligible for an “exception/exemption” to obtaining an export license, and if not,
Coordinate with your CEA and apply for and obtain an export license (through the Agency Export Administrator @ NASA Headquarters)
Cite exception/exemption/license authority on export paperwork and comply with requirements of regulations, license and/or agreement.
Before Effecting any Export
NASA seeks and obtains export licenses for . . .
the permanent transfer of hardware on the USML
for any export of information (technical data) required for the detailed design, development, manufacture, or production of a Defense Article
for any transfer of hardware or technical data involving a foreign person in or from a proscribed country.
Rules of Thumb
Export licenses can take 30 to 45 days to receive from the date of submission to regulatory authority (State or Commerce).
Allow 45 days for all critical path items.
For more sensitive items or technologies or for destinations of concern expect longer timeframes.
Rules of Thumb
Mark hardware, data and technical reports as you receive or prepare them. Alerts all who must handle the documents as to their responsibilities. Information contained (in this report/on this page) is subject
to the International Traffic in Arms Regulations.
Information contained (in this report/on this page) is subject to the Export Administration Regulations.
Rules of Thumb
No exports to any foreign entity unless the exporter is confident that such exports are in compliance with approved contracts, international agreements, and U.S. export control laws and regulations
Data in the Public Domain is “uncontrolled” and “unlimited” dissemination (contractors may still need TAAs)
Data subject to Export Control is “restricted” dissemination
Knowing the difference, determining classification is key
Help is available CEAs, ECRs, HQ
Remember…
Every NASA employee and contractor is required to comply with U.S. export control laws and regulations and the NASA Export Control Program
Early planning with CEA a necessity
Know your partners and visitors
Identify export controlled technology and hardware
Get your documents, briefings, publications reviewed
Ask for training for your team, consult regularly with your CEA
Give us a call if you need help
Use the Export Control Operations Manual
Foreign Travel with NASA supplied computers or cell phones may require an export authorization and coordination with Center CIO
Remember…
NPR 2200.2C: Requirements for Documentation, Approval and Dissemination of NASA Scientific and Technical Information
This NPR outlines the forms, reviews, availability categories, and other requirements that you need to follow to publish STI.
http://www.sti.nasa.gov/
Export control review is a part of publication dissemination process
NASA Publishes
Centers approve all Non-Designated Area foreign visits; all Designated Area foreign national visits reviewed by Headquarters (Plus FN’s on NASA Exchange Visitor Program)
Export control is an integral part of review/approval process, because exports to Foreign Nationals within the U.S. are considered exports to their Home Country -- “deemed export” rule
Invitations to visitors from Designated Areas requires NASA HQ approval
Media visits require PAO approval
All requests must be entered into Identity Access and Management Tool (IdMax)
NASA Foreign Visits Policy
Designated Areas for Foreign Access Purposes
Afghanistan Bahrain Belarus Bhutan Burma Central
African Republic
China Congo Cuba Crimea
region of Ukraine
Cyprus Egypt Eritrea Guinea Haiti Hong Kong Iran Iraq Israel Ivory Coast Jordan Kyrgyzstan
SOURCES: Department of State has published restrictive guidance regarding these countries/entities, August 2011, ITAR Handbook notes, 22CFR §126.1, as amended through 80 FR 30614 (May 29, 2015); 15 CFR 746.8 and 740 Appendix D:4
Kuwait Lebanon Liberia Libya Macau (China) North Korea Oman Pakistan Qatar Saudi Arabia
Somalia Sri Lanka Sudan Syria Taiwan United Arab
Emirates Venezuela Vietnam Yemen Zimbabwe
Argentina
Australia
Austria
Belgium
Bulgaria
Canada
Croatia
Czech Republic
Denmark
Estonia
Finland
France
Germany
Greece
Hong Kong
Hungary
Iceland
Ireland
Italy
Japan
Korea (South)
Latvia
Lithuania
Luxembourg
Mexico
Netherlands
New Zealand
Norway
Poland
Portugal
Romania
Singapore
Slovakia
Slovenia
Spain
Sweden
Switzerland
Taiwan
Turkey
United Kingdom
Cooperating Governments
Export Control Reform Objective: Protecting U.S. National Security “Higher fence around a smaller yard” Must be multilateral to be effective
Unilateral controls must address legal or foreign policy objective
Dynamic control lists that are easily updated Reflect changing technology/availability
Transparent, predictable and timely processes Strengthen ability to comply, enforce
www.export.gov/ecr
Satellites Commercial Communication Satellites Lower-Performance Remote Sensing
Satellites Planetary Rovers Planetary and Interplanetary Probes
Related systems for the above Ground control systems Training simulators Test, inspection, and production equipment Non-critical software for production,
operation or maintenance Non-critical technology for development,
production, installation, operation or maintenance
Radiation hardened microelectronics
Items Transferred to EARCertain Spacecraft (Human-rated or robotic) without integrated propulsion
Orion MPCV – Crew Module Cygnus Others
Parts and components of satellite bus and payloads not listed on USML
Thousands of types of parts and subsystems
Hundreds of thousands of specific parts
Training on spacecraft access, ingress, and egress, including the operation of all spacecraft doors, hatches, and airlocks;
Physiological training (e.g., human-rated centrifuge training or parabolic flights, pressure suit or spacesuit training/operation);
Medical evaluation or assessment of the spaceflight passenger or participant;
Training for and operation by the passenger or participant of health and safety related hardware or emergency procedures;
Human Spaceflight Activities Not Subject to ITAR or EAR
Viewing of the interior and exterior of the spacecraft or terrestrial mock-ups;
Observing spacecraft operations (e.g., pre-flight checks, landing, in-flight status);
Training in spacecraft or terrestrial mock-ups for connecting to or operating passenger or participant equipment used for purposes other than operating the spacecraft; or
Training on donning, wearing or utilizing the passenger’s or participant’s flight suit, pressure suit or spacesuit, and personal equipment.
Human Spaceflight Activities Not Subject to ITAR or EAR
Changes in the regulations will cause evaluation on impacts to existing programs
Indications are that the changes will be beneficial to NASA and our international and domestic partners
Cooperation with agencies of Cooperating Governments greatly facilitated for items moved to Commerce regulation with access to more license exceptions
Even more important to work with Center Export Administrator to understand the export control constraints on your program/project
What do these changes mean?
Export Control Awareness Video?
What Are Export Controls and why are they important?
How does NASA implement them?
Case Studies and Exercises
Questions
Agenda
Mars Science Laboratory Mars Science Laboratory includes
international involvement from 13 countries with instrument contributions from 5
13 Separate International Agreements were in place to develop and launch the Mars Science Laboratory
Initially ITAR Category XV Spacecraft
10 Export Licenses and 30 Technical Assistance Agreements used for the fabrication and launch of the Mars Science Laboratory
Contains plutonium-powered radio-isotopic thermoelectric generator
On Nov 10, 2014 this moved to EAR jurisdiction
Mars 2020 International Partners Centro de Astrobiologia, Instituto
Nacional de Tecnica Aeroespacial, Spain, providing Mars Environmental Dynamics Analyzer (MEDA)
Norwegian Defense Research Establishment (FFI) providing the Radar Imager for Mars' Subsurface Experiment (RIMFAX)
CNES’s Institut de Recherche en Astrophysique et Plane’tologie (CNES/IRAP), France, contributing to SuperCam
All three partners are considered “Agencies of Cooperating Governments”
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Orion MPCV
International agreement with Canada, ESA, Japan and Russian Federation
ISS is subject to EAR as 9A004
Technical data required for the detailed design, development, manufacturing, or production of the ISS was subject to the ITAR Category XV
License exception GOV used for hardware destined to ISS less than 45 days before launch
License exemption 126.4(a) used for technical data shared with international partners
On Nov 10, 2014 technology moved to EAR jurisdiction
International Space Station
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ISS and Export Reform
Most astronaut training not subject to export controls
Telemetry data on the operational health of ISS not subject to export controls
Tools, accessories, and technology for the repair/maintenance of ISS eligible for license exception to CSA, JAXA, and ESA
Russia is NOT a Cooperating Government that is eligible for license exceptions like CSA, JAXA, or ESA
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An export can involve:
a. A commodity
b. Software
c. Technical data/technology
d. Providing a defense service
e. All of the above
Knowledge Check
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Prior to exporting, you must obtain:
a. A requirement and an export authorization
b. An export authorization and a license
c. A requirement and permission from the Administrator
d. None of the above
Knowledge Check
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True or False?
A license, a license exemption, license exception, and No License Required (NLR) are all export authorizations.
a. True
b. False
Knowledge Check
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Which Department controls the transfer of goods and technologies under the Export Administration Regulations (EAR)?
a. Department of State (DOS)
b. Department of Commerce (DOC)
Knowledge Check
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Knowledge Check
Who is responsible for export control compliance?
a. The NASA Administrator
b. Mission Directorates
c. Center Directors
d. Program/Project Managers
e. Me
f. All of the above
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Knowledge Check
Who should you contact with export control questions?
a. Headquarters
b. Regulatory Agency
c. Your organization’s Export Control Representative, if available, or your Center Export Control Staff
d. The NASA Administrator
