Export Control Regulations

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Export Control Regulations

• Campus 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

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Law and Regulations
Commerce Department State Department Treasury Department
Export Administration Act Arms Export Control Act Trading with the Enemy Act, Intl 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
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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

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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

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Examples of Items Covered by Category 3 -
Electronics
Category Example Systems, Equip, Mass
Spectrometers Pulse Amplifiers
Components Test, Inspection, Equipment for the
manufacturing of production Prod Equip
semiconductor devices or material Materials Heter
o-epitaxial materials consisting of a
substrate having stacked epitaxially grown
multiple layers of silicon, germanium,or
compounds of gallium or indium Software Comput
er-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 Techni
cal data for the development of production of
any of the above items
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Examples of Items Covered by Category 1
Materials, Chem, Microorganisms, Toxins

• Category Example
• Systems, Equip, Chemical Agents, including tear
  gas containing 1
• Components or less of CS or CN, except
  containers net wt lt20grm
• Test, Inspection, Electrolytic cells for
  fluorine production with a
• Prod Equip production capacity gt250 g of
  fluorine per hour
• Materials Chemical Precursors for toxic chemical
  agents
• (1C350) (ExamplesBenzilic acid sodium
  bifluoride)
• Human pathogens, zoonoses, and toxins
  (1C351)
• (Examples Rickettsia rickettsii, Chlamydia
  psittaci) Animal pathogens (1C352
  (Examplegoat 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

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What is Technical Data TechnologyITAR 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.

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What is NOT ControlledTechnical 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

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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.

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Elements of a Campus Export Compliance Plan
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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 EHS
  others?
• Train MSOs 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

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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

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Technical Data ExchangeFaculty 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

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Technical Data ExchangeFaculty 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

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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)

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Software Faculty Admin Dont 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

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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
  exporters 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
  individuals departure from the US, or at any
  time after departure

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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

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Research in Embargoed Countries

• 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.

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Faculty Getting the Message to Those that Need
It?

• Deans, Departments, ORU Who needs to know?
• Faculty Committees?
• Other?
• Written Materials Web Site What?