EXPORT CONTROLS: A UNIVERSITY CHALLENGE - PowerPoint PPT Presentation

1 / 50
About This Presentation
Title:

EXPORT CONTROLS: A UNIVERSITY CHALLENGE

Description:

Classify research - find ECCN (EAR) and/or check Munitions List (ITAR) ... Records must be kept 5 years (license valid 2 years) ... – PowerPoint PPT presentation

Number of Views:201
Avg rating:3.0/5.0
Slides: 51
Provided by: jnor87
Category:

less

Transcript and Presenter's Notes

Title: EXPORT CONTROLS: A UNIVERSITY CHALLENGE


1
EXPORT CONTROLS A UNIVERSITY CHALLENGE
  • Kay Ellis
  • Oklahoma State University
  • (405) 744-9995
  • mkellis_at_okstate.edu
  • http//www.research.okstate.edu

2
TOPICS TO BE COVERED
  • Overview of the basic regulations
  • The fundamental principles, including the need to
    publish
  • Use of foreign nationals
  • Issues related to dissemination/access
  • Working with the EARs
  • Licensing the technology

3
WHY REGULATIONS WERE IMPOSED
  • Prevent terrorism
  • Restricts exports of goods and technology that
    could contribute to the military potential of
    adversaries
  • Restricts exports of goods and technology that
    could hamper U.S. economic vitality
  • Prevent proliferation of weapons of mass
    destruction

4
THE ISSUES
  • Culture of free exchange and sharing
  • Culture of nationality blindness
  • Institutions generally decentralized and
    ill-adapted to controls and restrictions
  • Regulations hopelessly complicated, frequently
    changed
  • Licensing takes time and interrupts research
  • Departments of State/Commerce auditing
    universities for export control policies

5
OVERVIEW
  • Export controls cover
  • Any item in U.S. trade (goods, technology,
    information)
  • U.S. items wherever located, even internationally
  • Deemed exports
  • Excludes
  • Items in the public domain
  • Artistic or non-technical publications (maps,
    childrens books, sheet music, calendars, film)

6
THE BASIC REGULATIONS
  • International Traffic in Arms Regulations (ITAR)
    22 CFR Ch.1 Part 120)
  • U.S. Munitions List (USML) enumerates the defense
    articles and services which are controlled
  • Based primarily on whether an article or service
    is deemed to be inherently military in character
  • Licensing handled by the Directorate of Defense
    Trade Controls (DDTC)

7
THE BASIC REGULATIONS
  • Export Administration Regulations (EAR)
  • 15 CFR Parts 730-774)
  • -The Commerce Control List (CCL) contains
    commodities, technology, and software subject to
    the EAR identified by an Export Classification
    Control Number (ECCN)
  • - Licensing handled by Bureau of Industry and
    Security (BIS), formerly BXA
  • The inherent capabilities and design, not the end
    use, determines whether the item falls under the
    ITAR or the EAR

8
DIFFERENCES BETWEEN ITAR AND EAR
  • ITAR
  • covers military items (munitions and defense
    articles)
  • Includes most space related technologies because
    of application to missile technology
  • Includes technical data related to defense
    articles and services (furnishing assistance
    including design and use of defense articles)
  • Very strictnot much latitude, few exemptions

9
DIFFERENCES BETWEEN ITAR AND EAR
  • EAR
  • Covers dual use items
  • Regulates items designed for commercial purposes
    but that can have military applications
    (computers, pathogens, civilian aircraft, etc.)
  • Covers both the goods and the technology
  • DOC easier to work withmore exemptions available

10
DIFFERENCES BETWEEN ITAR AND EAR
  • ITAR proscribed list/sanctions (the T-7s)
  • Differ on ordinarily publishable (EAR) vs.
    published (ITAR)
  • ITAR has stricter proprietary review concerns

11
KEY ISSUES FOR UNIVERSITIES
  • Public Domain
  • Fundamental Research Exemption
  • Deemed Exports

12
PUBLIC DOMAIN
  • Includes information that is published and
    generally available to the public
  • Through sales at bookstands and stores
  • Through subscriptions available without
    restrictions
  • At libraries open or available to the public
  • Through patents
  • Through unlimited distribution at a conference,
    meeting seminar, trade show, generally accessible
    to the public in the U.S.
  • Includes technology and software that are
    educational and released by instruction in
    catalog courses and associated labs and
    Universities

13
NSDD-189
  • Fundamental research means 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 and from
    industrial development, design, production and
    product utilization, the results of which
    ordinarily are restricted for proprietary or
    national security reasons.

14
NSDD-189
  • To the maximum extent possible, the products of
    fundamental research should remain unrestricted.
    Where national security requires control, the
    mechanism for control of information generated
    during federally-funded research in science,
    technology and engineering at colleges,
    universities and laboratories is classification.

15
DEEMED EXPORTS
  • Export controls cover transfers of good and
    technology within the U.S. to a foreign national
    who is not a U.S. citizen or permanent resident
    (green card holders)
  • Applies to technology transfers under the EAR and
    ITARs technical data and defense services
  • Unless the fundamental research exemption
    applies, a universitys transfer of controlled
    technology to a non-permanent resident foreign
    national may be controlled and/or prohibited
  • Non-immigrant visa holders must satisfy export
    controls (license may be required)
  • Examples - Visual inspection, E-mails, oral
    exchanges of information

16
ITAR AND THE FUNDAMENTAL RESEARCH EXEMPTION
  • Fundamental research exemption recognized, but
    limited, given jurisdiction over goods and
    technologies designed to kill
  • Covers information which is published and which
    is generally accessible or available to the
    public through a number of mechanisms including
  • Unrestricted publications

17
ITAR AND THE FUNDAMENTAL RESEARCH EXEMPTION
  • At an accredited institution of higher learning
    in the U.S. where the information is ordinarily
    published and shared broadly in the scientific
    community
  • Excludes information restricted for proprietary
    reasons or by specific government access and
    dissemination controls

18
ITAR AND THE FUNDAMENTAL RESEARCH EXEMPTION
  • Poses three significant issues
  • Ordinarily publishable or published
  • Proprietary information of sponsor
  • Access or dissemination control

19
EAR AND THE FUNDAMENTAL RESEARCH EXEMPTION
  • Exemptions significantly broader than ITAR
  • Prepublication review for inadvertent proprietary
    material does not trigger license
  • Prepublication review by a corporate sponsor or
    other restrictions on the publication of
    scientific and technical information generally
    invalidates the exemption
  • Access and dissemination controls normally do not
    trigger license as long as university follows
    national security controls imposed in the award
  • Some technologies (advanced encryption)
    ineligible for fundamental research exemption and
    require licenses

20
APPLICATION TO RESEARCH
  • Office of Foreign Assets Control (OFAC) May
    limit transfer of technology/assistance to OFACs
    list of embargoed countries
  • May need EAR or ITAR license before approved
  • Recently ruled providing editing services to a
    person/journal from embargoed country requires a
    license
  • Includes university agreements as well as
    arrangements between faculty members

21
APPLICATION TO RESEARCH
  • Export of research products
  • Underwater research vehicle could require ITAR
    license if designed for military applications
    would require Commerce Department authorization
    if designed for civilian purposes
  • Temporary transfer of research equipment abroad
  • Carrying scientific equipment to certain
    destinations for research may require
    authorization (e.g., Iran Syria, China, etc.)

22
APPLICATION TO RESEARCH
  • Software development
  • Software that is provided to the public for free
    may not require licenses, but proprietary
    software of controlled technology could require
    licensing
  • Encryption technology could require licenses or
    could be prohibited for transfers to certain
    foreign nationals/countries

23
APPLICATION TO RESEARCH
  • Government grants may limit access by foreign
    nationals
  • for any foreign nationals working on the project
  • determining whether a restriction is a specific
    access and dissemination control under the ITAR
    (which would invalidate the fundamental research
    exemption) particularly problematic
  • Restrictions on certain foreign nationals
    Agencies may preclude or limit access by foreign
    nationals to research based on the export control
    laws
  • May require prior approval
  • Under ITAR, no license available if a foreign
    national is from an embargoed country

24
APPLICATION TO RESEARCH
  • Corporate grants may limit access by foreign
    nationals
  • Proprietary restrictions or restrictions on
    publication by corporate grant may invalidate
    fundamental research
  • Includes MTAs, Non-disclosure agreements
  • Try to remove restrictive clauses from
    agreements!!!!
  • Conferences
  • Potential restrictions on participants
  • Inability to co-sponsor with certain countries or
    groups (e.g., restrictions on co-sponsoring
    conference with Iranian government)
  • Transfer of defense services
  • Potential license requirements for work with
    foreign nationals

25
DETERMINING THE NEED FOR A LICENSE
  • QUESTIONS TO ASK
  • 1. What is the nationality of researchers
    INCLUDING both Professors and Research Assistants
    (grad students/post-docs)?
  • 2. Will the results be publicly available?
  • 3. Will there be restrictions?
  • a) on publications
  • b) on access
  • c) on dissemination
  • d) on proprietary information

26
DETERMINING THE NEED FOR A LICENSE
  • QUESTIONS TO ASK
  • 5. Will I be receiving any restricted
    information?
  • 6. Destination Is the research going
    overseas to a foreign company, government or
    individual?
  • 7. What do the end-users intend to do with the
    research results?

27
DETERMINING THE NEED FOR A LICENSE
  • STEPS TO TAKE
  • Classify the technology or goods involved (ITAR,
    EAR, OFAC, other?)
  • Determine if license is needed for the
    technology/end user/end use
  • Determine if license exemption is available
    (public domain, fundamental research, EAR
    exemption from CCL, etc.)

28
DETERMINING THE NEED FOR A LICENSE
  • Determine whether embargoes, prohibited parties,
    or destinations are involved
  • If no exemptions, determine what kind of license
    is needed
  • Technical Assistance Agreement
  • DSP-5
  • Deemed Export License (EAR)
  • License

29
DETERMINING THE NEED FOR A LICENSE
  • Apply promptly, licensing can take months!!
  • OURS website export control links
    http//www.research.okstate.edu
  • ITAR (State) requirements available at
  • http//www.pmdtc.org
  • EAR (Commerce) requirements available at
    http//www.bis.doc.gov
  • OFAC (Treasury) requirements available
    http//www.treas.gov/offices/eotffc/ofac/

30
THE EAR PROCESS IF EAR APPLIES, WHAT NEXT?
  • STEP 1 PI must classify the type of technology
    or science being developed on the Commerce
    Control List by determining the ECCN Export
    Control Classification Number
  • http//w3.access.gpo.gov/bis/ear/ear_data.html

31
COMMERCE CONTROL LIST
  • Contains lists of items subject to licensing
    authority of BIS
  • Each entry is called Export Control
    Classification Number (ECCN)
  • (Five alpha-numeric characters)
  • Items listed in terms of technical parameters

32
ECCN BREAKDOWNEXAMPLE 3D101
  • 3 Category
  • D Product Group
  • 1 Reason for Control
  • 0 Relates to Reasons for Control
  • 1 Used for Numerical Ordering

33
TEN CATEGORIES IN THE CCL (0 - 4)
  • 0. Nuclear Materials, Facilities Equipment
    Miscellaneous
  • 1. Materials, Chemicals, Microorganisms
    Toxins
  • 2. Materials Processing
  • 3. Electronics Design, Development and
    Production
  • 4. Computers

34
TEN CATEGORIES IN THE CCL (5 9)
  • 5. Telecommunications Information Security
  • 6. Sensors and Lasers
  • 7. Navigation and Avionics
  • 8. Marine (ships vessels)
  • 9. Propulsion Systems, Space Vehicles and
    Related Equipment

35
PRODUCT GROUPS
  • A Equipment, Assemblies Components
  • B Production, Test Inspection Equipment
  • C Materials (raw)
  • D Software
  • E Technology

36
FINDING THE ECCN
  • Review general characteristics (technical
    parameters) of items (research) to arrive at
    Category and Product Group
  • Match characteristics of item with ECCN and
    subparagraph
  • HINT Check the CCL alphabetical index

37
GENERAL PROHIBITIONS, PART 736
  • STEP 2 Check General Prohibitions
  • Prohibit certain exports, re-exports, and other
    conduct, without a license, license exception or
    determination that no license is required
  • General Prohibitions 1-10 apply to items having a
    specific ECCN
  • General Prohibitions 4-10 apply to items that are
    EAR99 (not found on the CCL)

38
GENERAL PROHIBITIONS 1-3
  • Apply only if your item is classified under an
    ECCN
  • Export and re-export of controlled items to
    listed countries
  • Re-export and export from abroad of foreign-made
    items incorporating more than a de minimis amount
    of controlled U.S. Content
  • Re-export and export from abroad of the foreign
    produced direct product of U.S. technology and
    software

39
GENERAL PROHIBITIONS 4-10
  • Apply if your item is classified under a
    specific ECCN or is EAR 99 (items not found on
    the CCL- usually no license required)
  • Engaging in actions prohibited by a denial order
    (check denied persons list)
  • Export or re-export to prohibited end-uses or end
    users (e.g., chemical and biological warfare)
  • Export or re-export to embargoed or special
    destinations
  • Support of proliferation activities

40
GENERAL PROHIBITIONS, Continued
  • Intransit shipments and items to be unladen from
    vessels or aircraft
  • Violation of any order, terms, and conditions
  • Proceeding with transactions with knowledge that
    a violation has occurred or is about to occur
  • If Prohibitions dont apply, look for Exceptions

41
LICENSE OR EXCEPTION UNDER EAR?
  • STEP 3 Try to find the exception!
  • Using the CCL check reasons for control Look at
    the Reason for Control section directly under
    the category heading and License Requirements.--
    E.g. Reason for control NS, MT, AT
  • Match specific controls to Country Chart column
  • Look for an X in Commerce Country Chart

42
LICENSE OR EXCEPTION UNDER EAR, Continued
  • If an X is present, look under the License
    Exceptions category below the Control(s)
    section
  • If no license exception available, license must
    be obtained (4-6 weeks to process)

43
REASON FOR CONTROL
  • AT Anti-Terrorism
  • CB Chemical Biological weapons
  • CC Crime Control
  • CWChemical Weapons Convention
  • EI Encryption Item
  • FCFirearms Control
  • MTMissile Technology
  • NPNuclear Proliferation
  • NSNational Security
  • RSRegional Stability
  • SISignificant Item
  • SSShort Supply
  • UNUnited Nations
  • XPComputers

44
COMMON LICENSE EXCEPTIONS
  • LVS Limited Value Shipments
  • Pertains to Country Group B
  • Identified by LVS (value) on the CCL (e.g.
    LVS 5000)
  • GBS Country Group B
  • Identified by GBS Yes on the CCL
  • CIV Civil End-Users
  • Pertains to Country Group D-1
  • Identified by CIV Yes on the CCL
  • National Security controlled items only

45
COMMON LICENSE EXEPTIONS
  • TSR Restricted Technology and Software
  • Pertains to Country Group B
  • Identified by TSR Yes on the CCL
  • National Security Controlled Items only
  • Written Assurance Letter can be written stating
    software will not be released to nationals of
    certain country groups (e.g. D1 and E2)

46
SANCTIONS FOR 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

47
SANCTIONS FOR NONCOMPLIANCE
  • EAR
  • Criminal 50K to 1 million or 5 times value of
    export, whichever is greater, per violation, 10
    years imprisonment
  • Civil revocation f exporting privilege, fines
    10K-120K per violation
  • OFAC
  • Criminal up to 1 million per violation and 10
    years imprisonment
  • Civil 12 K to 55 K per violation

48
UNIVERSITY/PI RESPONSIBILITIES
  • Work with the staff in your college
  • Review your research for potential EAR/ITAR
    issues dont wait until the contract arrives!
  • Classify research - find ECCN (EAR) and/or check
    Munitions List (ITAR)
  • If you are planning to hire a foreign national,
    check the regulations to see if a license may be
    required
  • At the contract stage, check for restrictive
    clauses that would eliminate the Fundamental
    Research exemption

49
UNIVERSITY/PI RESPONSIBILITIES
  • Document exemptions
  • Records must be kept 5 years (license valid 2
    years)
  • Apply for a license BEFORE project
    begins--process can take 2-6 months or longer!
  • Honest errors are acceptable but gross negligence
    is punishable
  • Violations are civil and criminal---Fines and
    jail time!!!

50
(No Transcript)
Write a Comment
User Comments (0)
About PowerShow.com