julie taubman research compliance officer (rco) graduate school and office of research and sponsored...
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Julie TaubmanResearch Compliance Officer (RCO)Graduate School and Office of Research and Sponsored ProgramsAppalachian State [email protected] or 828-262-7981http://www.orsp.appstate.edu/compliance/export-controls
Understand essential aspects of export controls
Recognize export control issuesContact RCO for assistance
Become familiar with our export control policy and procedures
What is an export? What are export controls? Exclusions to export controls Basics of exporting items and
technology The end user and the destination country
of the export International Travel Penalties for non-compliance Red Flags and Questions
A transfer of items, software or technology to a foreign person, foreign entity or foreign destination.
Technology includes information that can be used or adopted for the development, production or use of a good. Information can take the form of technical data or technical assistance.
Examples include but are not limited to: blue prints, sketches, models, drawings, software, manuals, training and technical services
A “deemed export” is an export of technology or source code to a foreign person in the U.S.
Examples of a deemed export of technology or source code:
Visual inspection of controlled technologyOral exchange of technical informationGuidance is given on the practice or application of a technology
The definition of foreign person includes: any foreign government, foreign corporation or organization that
is not incorporated or organized to do business in the U.S., and
anyone who is not a U.S. citizen or lawful permanent resident (a green card holder).
Shipment of physical items outside of U.S.Discussion of unpublished research at a
conference in the U.S. with foreign nationals present
Visit to a lab on campus by a foreign national scholar where technical data is displayed
Participation of foreign nationals in research
Receiving an email with technical data on a foreign national’s computer
Export controls are the set of laws, policies and regulations that prohibit the unlicensed export
ofcertain items, technology and software.
Exports are controlled for various reasons: Anti-terrorism Non-proliferation of weapons National security Crime control Regional stability Foreign policy purposes Multilateral agreements
Export Administration Regulations (EAR) for dual use items
Department of Commerce, Bureau of Industry and Security (BIS)
International Traffic in Arms Regulation (ITAR) for military items
Department of State Sanction Programs Department of Treasury, Office of Foreign
Assets Control (OFAC)
Triggered Spark Gaps can be used in both a medical device that breaks up kidney stones and as a detonations device for a nuclear weapon.
Almost, but there are some exclusions
Public Domain Exclusion Published information that is generally
accessible to the public does not require a license
Education/Teaching Exclusion Instruction in science, math and engineering
courses listed in course catalogues may be conducted without a license
Fundamental Research Exclusion “Basic and applied research in science and
engineering conducted in the U.S. where the resulting information is ordinarily published and shared broadly within the scientific community ” National Security Decision Directive 189
Applies to information and software, not to tangible items
The information or software must be generated within the U.S. Once it is generated in the U.S.,
the information and software can be disseminated outside of the U.S.
Fundamental Research Exclusion does not apply if a grant or contract includes clauses that: Give a sponsor the right to approve publication; or
Restrict participation of foreign nationals in the research
Appalachian State University will fulfill its mission of teaching, research, and service in a manner that complies with federal export control and embargo regulations, while also ensuring reasonable efforts to identify situations in which the University may claim exclusions or exemptions under public domain or fundamental research.
If a proposal includes clauses restricting: access to or publication of research and
technical data; and/or limiting participation of foreign nationals
in research effortResearcher and ORSP can work with the General Counsel in an attempt to remove or modify the restrictive clauses
Research that does not qualify for the Fundamental Research Exception requires a Technology Control Plan All relevant materials, items, software or
hardware, data, or technical information must be secured from use and/or observation by foreign nationals without an export license
A template of a Technology Control Plan is available on the Export Controls website
An export license is issued by an export agency and authorizes an export, reexport or other regulated activity as specified on the application.
Determining if an export requires
an export license
Who will receive the export? What is the export? Where is the export going? What will they do with the
export?
It is illegal to conduct business
with entities or individuals that
are barred by the government.
The recipient of any exchange
of information, items ormonies should be screenedthrough governmentrestricted party lists.
Submit a Request for Restricted Party Screening
Generally, any transactions with embargoed countries will be constrained or prohibited. Very little unauthorized (license or license exception) activity can happen with these destinations.
Comprehensive sanction programs against Cuba, Iran and Sudan
Limited sanction programs against Burma, North Korea and Syria
Submit an Export Assistance Form for Technology or Goods to RCO; or
Request classification from a vendor of the item
Microsoft Program
ECCN LIC
Windows XP Embedded 5D002 ENC
Windows XP Home Edition 5D992.b.1 NLR
Windows XP Professional 5D992.b.1 NLR
Windows XP SP1, SP2 5D992.b.1 NLR
Windows XP SP3 5D992.b.1 NLR
After classifying the item or technology withthe Commerce Control List of the EAR, the
itemor technology will have an Export ControlClassification Number (ECCN) which will list:
The reasons for control Designate any specific License Exceptions and Provide a List of Items Controlled
With this information, we can determine if an
Export license is required by consulting theCountry Chart
Processing an export license can take up to 6 months
Items that require an export license or are valued over $2500 require filing of Electronic Export Information (EEI) into the Automated Export System (AES) of the Census Bureau This provides the export with an
International Transaction Number (ITN) If you have a freight forwarder file for
you, prior to shipment confirm that they will provide you with the ITN
After you submit your Travel Authorization:1. Read the Export Control Briefing. Even if
you frequently travel internationally and have never had a problem, it is a good idea to understand export controls to prevent an unintentional violation.
2. Please obtain Foreign Travel Insurance from the Office of International Education and Development.
Since export controls apply to items that are hand carried abroad, it is important to read the Laptop Briefing. In order to take a laptop abroad with you, you’ll need to:
Classify the laptop, software and stored data to show it does not need a license; or
For Appalachian owned items, determine if a Temporary Export Exception (TMP) applies, and submit a One Time Certification
For personal Items, determine if a Baggage Exception (BAG) applies.
New York Times (10/24/06) At U.S. Borders, Laptops Have No Right to Privacy
“One member who responded to our survey said she has been waiting for a year to get her laptop and its contents back,” said Susan Gurley, the group’s executive director. “She said it was randomly seized. And since she hasn’t been arrested, I assume she was just a regular business traveler, not a criminal.”
Appeals are under way in some cases, but the law is clear. “They [Customs] don’t need probable cause to perform these searches under the current law. They can do it without suspicion or without really revealing their motivations,” said Tim Kane, a Washington lawyer who is researching the matter for corporate clients.
Example of a letter from NASA:
DATETo: CUSTOMS OFFICIALSSUBJECT: HANDCARRY OF LAPTOP COMPUTER1. The individual named in this letter is a ____________________employee carrying a(______________________-owned /personally-owned) laptop computer authorizedfor temporary export under EAR Licensing Exception 740.9(a)(2)(i) TMP – Toolsof the Trade. Software loaded on the laptop is authorized for export under NLR.Data files on the laptop (do/do not) contain technical data as defined by US exportregulations and (do/do not) require authorization for export. The total value of thistemporary export is under $ 5000.002. The following information is provided:a. Individual Hand Carrying Laptop Computer: Name/Employee Numberb. Description of Laptop Computer: Make/Model Number/Serial Number…..
Failure to comply with export controls has heavy penalties: Criminal penalties:
▪ $250,00 fine for individuals and/or 10 years imprisonment;
▪ $1 million fine for businesses Civil penalties:
▪ $250,000 per transaction
In 2006 GAO study warns that the Departments of State and Commerce “have not fully assessed the potential for transfers of export-controlled information to foreign nationals in the course of U.S. university research.” The study urged closer attention to
available data on foreign students at U.S. universities.
Dr. J. Reece Roth, former University of Tennessee Professor Convicted of illegal exporting defense articles
John Carrington, previous State Senator and President of a Fingerprint Lab Received 12 months probation and a
$850,000 criminal penalty for the illegal export of crime control equipment to China through intermediaries in Italy and Hong Kong
Research in the following areas: Engineering Space sciences Computer Science Biomedical research with lasers Research with encrypted software Research with controlled chemicals,
biological agents, and toxins
Shipments of equipment to a foreign country
Training or collaboration with foreign nationals
Research activities performed in an embargoed country
Reference to export controlled technologies in an award document
Restrictions on publication rights Restrictions on foreign participation
The customer is reluctant to offer information regarding end use.
The product is incompatible with the technical level of the country to which it is being shipped, such as semiconductor manufacturing technology being shipped to a country that has no electronics industry.
The customer is unfamiliar with the terminology of a field but still requests technical data.
E-mails from domains such as Yahoo, Gmail, etc, when it would appear that the requestor should have a .edu or business.com e-mail address
Julie Taubman, Research Compliance Officer
Empowered Official: Dr. Edelma Huntley, Chief Research Officer
Susan McCracken, Director of Office of Research and Sponsored Programs
Charlotte Smith, Assistant Director of Office of Research and Sponsored Programs
How do export controls apply to a foreign student working on a sponsored project?
As long as the sponsored project doesn’t have limitations on the free publication of the results and no foreign national or national security restrictions, foreign nationals may support the fundamental research (basic and applied research) of the project.
What do you do if you don’t know the recipient of your export well or have suspicions that they may re-export to another country or another person?
If you are suspicious about an end user, one way to protect yourself and the University is to ask them to sign an End-User Certificate.
A Destination Control Statement may also be included with an export to combat re-exports.
Thanks for coming to Export Controls 101!
Thanks to NASA Kennedy Space Center for allowing us to use their
letter to Customs for the carrying of a laptop.
The certification material for laptops is adapted from the basic design and content of Stanford University’s Export ControlsPage. We appreciate Stanford in granting us to permission to
use itscontent for the benefit of Appalachian State University.