export control regulations campus compliance issues for consideration

Export Control RegulationsCampus

Compliance Issues for Consideration

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Why Is Compliance Important?

Possibility of Substantial Fines and Imprisonment for Violators

Civil & Criminal Penalties, for the Individual and the Institution

Limiting participation of foreign nationals in University research is not realistic and contrary to policy


Law and Regulations

Commerce Department

State Department

Treasury Department

Export Administration

Act

Arms Export Control Act

Trading with the Enemy Act, Int’l

Emergency Economic

Powers Act, & Others

Export Administration

Regulations (“EAR”)

15 C.F.R. Parts 700-799

International Traffic in Arms

Regulations (“ITAR”)

22 C.F.R. Parts 120-130

Iraq Sanctions Regulations,

Terrorism Sanctions

Regulations, & Others

31 C.F.R. Parts 500-599

Commerce Control List

U.S. Munitions List

List of Specially Designated Nationals &

Blocked Persons


What Is an Export?ITAR 120.17, EAR 734.2(b)

An actual shipment or transmission of items subject to the EAR or ITAR (commodity, technical data, or software) out of the United States

Releasing (including oral or visual disclosure) “technical data” or software “source code” to a “foreign person,” in the United States (“deemed export”)

“Foreign persons” is everyone other than a US citizen, a permanent resident alien, & certain ‘protected individuals’ (refugees and those with asylum); it includes any company not incorporated in the United States


EXAMPLES OF EXPORTS

SHIPPING OUT of US Physical Shipments or Hand

Carry Release of technical data or

software in a foreign country RELEASING INFO in US

Release of Source Code to a foreign national in the US

Release of Technical Data to a foreign national in the US

Inspections of U.S. Equipment and Facilities by a Foreign National


Examples of Items Covered by Category 3 - Electronics

Category ExampleSystems, Equip, Mass Spectrometers & Pulse Amplifiers

& Components

Test, Inspection, Equipment for the manufacturing of production &Prod Equip semiconductor devices or material

Materials Hetero-epitaxial materials consisting of a “substrate” having stacked epitaxially grown multiple layers of: silicon, germanium,or compounds of gallium or indium

Software Computer-aided design software designed for semiconductor devices or integrated circuits having any of the following: design rules or circuit verification rules, simulation of the physically laid out circuits, or lithographic processing simulators for design

Technology Technical data for the development of production of any of the above items


Examples of Items Covered by Category 1 Materials, Chem, Microorganisms, & Toxins

Category ExampleSystems, Equip, Chemical Agents, including tear gas containing 1%

& Components or less of CS or CN, except containers net wt <20grm

Test, Inspection, Electrolytic cells for fluorine production with a

&Prod Equip production capacity >250 g of fluorine per hour

Materials Chemical Precursors for toxic chemical agents

(1C350) (Examples:Benzilic acid; sodium bifluoride)

Human pathogens, zoonoses, and “toxins” (1C351)

(Examples: Rickettsia rickettsii, Chlamydia psittaci)Animal pathogens (1C352 (Example:goat pox virus)Plant pathogens (1C354) (Example: Puccinia graminis)

Software “Software” for process control that is specifically

configured to control or initiate “production” of chemicals controlled by 1C350

Technology Technical data for the development of production of any of the above items


What is Technical Data & Technology

ITAR 120.10, EAR 772.1 ITAR 120.10 defines “technical data” as

Information . . . required for the design, development production, manufacture, assembly, operation, repair, testing, maintenance, or modification of defense articles; Invention covered by secrecy order; and Software directly related to defense article

EAR 772.1 defines “technology” as Specific information necessary for the

“development,” “production,” or “use” of a product. “Technical data” may take forms such as blueprints, plans, diagrams, models, formulae, tables, engineering designs and specifications, manuals and instructions written or recorded on other media or devices such as disk, tape, read-only memories.


What is NOT Controlled:Technical Data & Software (ITAR 120.10, EAR

772.1)

What is not export controlled “technical data” or “software”? Publicly available technical data and software Published for sale, in libraries open to the public,

or through patents available at any patent office General scientific, mathematical, or engineering

principles commonly taught in colleges and universities

Through unlimited distribution at a conference, meeting, seminar, trade show, or exhibition (provided no previous government or industry restrictions on distribution applied)

Arise during or result from fundamental research, where no restrictions on publication or access accepted

Non-technical contract or business documents


What is NOT Fundamental Research?

Given this definition of fundamental research, university research will not be deemed to qualify as fundamental research if The university or research institution accepts any

restrictions on the publication of the information resulting from the research, other than limited prepublication reviews by research sponsors to prevent inadvertent divulging of proprietary information provided to the research by the sponsor or to ensure that publication will not compromise patent rights of the sponsor; or

The research is Federally-funded and specific access and dissemination controls regarding the resulting information have been accepted by the university or researcher.


Elements of a CampusExport Compliance Plan


Shipping Items Out of the U.S.

Do NOT Ship Any Item Outside the U.S. without first checking the ITAR and EAR Lists to determine if the item is controlled; Secure License Approval or verify license exception PRIOR to Shipment for all controlled items

Identify knowledgeable campus ‘point of contact’

Create ‘export team’ of: mailing department; technology transfer/licensing personnel; EH&S; others?

Train MSO’s and Departmental Staff re: shipment of ‘things’

Identify projects with ‘deliverables’ to foreign countries at the proposal/award stage

Outreach to faculty in key departments


Keeping Contracts Free of Controls

Do NOT enter into secrecy agreements or otherwise agree to withhold results in project conducted at the University or that involve University facilities, students or staff

Train personnel who enter into UC agreements to not accept controls on access of dissemination: Sponsored Projects Material Management/Purchasing Licensing In Agreements, such as Software Others?

Train faculty on why this is important


Technical Data Exchange:Faculty “To Do” Actions

Make sure that technical data about export controlled commodities qualifies as “public domain” (ITAR term) or

“publicly available (EAR term), by any of the following means:

Published Information: in journals, books, open websites, or other media available to a community of persons interested in the subject; readily available at university libraries (See EAR 774, Supplement 1, Questions A(1) - A(6))

Published through release at open conferences and meetings

Educational Information released by instruction in catalog courses and associated teaching laboratories of the University

Fundamental Research where the resulting information is ordinarily published and shared broadly within the scientific community and where no contractual controls have been accepted


Technical Data Exchange:Faculty “Do Not Do”

Actions Do NOT enter into proprietary data agreements where

the commercial entity includes an ‘export’ control notice, or restricts dissemination to others on the basis of nationality or citizenship.

Do NOT sign the DD2345, Militarily Critical Technical Data Agreement, as a condition of attending a conference or receiving materials from the government

Do NOT accept data from a commercial contractor that is marked “export controlled”

Review any Confidentiality/Non-Disclosure Agreements to insure that UC and you are not assuming the burden of restricting dissemination based on citizenship status or securing licenses


Software: Faculty “To Do” Actions

Whenever possible, make University created software, “publicly available” If the source code of a software program is publicly

available, then the machine readable code compiled from the source code is software that is publicly available and, therefore, not subject to the EAR (See EAR 774, Supplement 1, Question G(1))

The cost of reproduction and distribution may include variable and fixed allocations of overhead and normal profit for the reproduction and distribution functions but may not include recovery for development, design, or acquisition, such that the provider does not receive a fee for the inherent value of the software. (See EAR 774, Supplement 1, Question G(2))

For encryption software, the source code and corresponding object code resulting from compiling such source code, may be posted on the internet where it may be downloaded by anyone, as long as Commerce is notified of the internet location or is provided a copy of the source code (See EAR, Part 740.13)


Software: Faculty & Admin

“Don’t Do” Actions Do not agree to software license restrictions on

access to or use of the software by nationals of certain countries, particularly those from Country Group D

restrictions on dissemination of the ‘direct product’ of the software

ask the software provider to identify the ECNN number that controls the software, and research the applicability of control, given the possibility that the software provider is being overly cautious and the software is not, in fact, controlled


What can you take with you overseas?

Exception TMP: “Tools of Trade”

Usual and reasonable kinds and quantities of tools of trade (commodities and software) for use by the exporter or employees of the exporter in a lawful enterprise

The tools of trade must remain under the effective control of the exporter or the exporter’s employee (retain physical possession of the item, locked in hotel safe, or guarded)

Encryption commodities and software may be pre-loaded on a laptop, handheld device or other computer or equipment

All tools of trade may accompany the individual departing from the US or may be shipped unaccompanied within one month before the individual’s departure from the US, or at any time after departure


License Exception TMPTemporary: “Tools of Trade”

All commodities and software, if not consumed or destroyed in the normal course of authorized temporary use abroad, be returned as soon as practicable but no later than one year after the date of export

No tools of the trade may be taken to Cuba or Sudan

Reference 15 CFR Part 740.9(a)(2)(i) for TMP “Tools of Trade” License Exception


Do NOT travel to Cuba, Iran, Iraq, Libya North Korea, Sudan,or Syria, for research or educational activities without first contacting the campus VC-Research to secure a license from the Office of Foreign Assets Control. These are embargoed countries. A general license for Cuba may cover you; all other countries require a specific license.

Research in Embargoed Countries


Faculty: Getting the Message to Those that

Need It? Deans, Departments, ORU: Who needs to know?

Faculty Committees?

Other?

Written Materials; Web Site; What?

export control regulations campus compliance issues for consideration

Documents

foreign national slide

export foreign persons

examples of items

us release of technical

consideration slide

policy slide

arms regulations itar

us release of source