Export Controls: Overview and Update

1. Export Controls:Overview and Update Lorraine A. McConnell November 14, 2006

2. Outline • Introduction, Overview and Update • Key Issues for Universities • Determining the Need for a License • Practical Exercises • Export Control Assistance • Questions and Answers

3. Introduction • Except for certain, limited types of research university researchers and the academic community have not traditionally been impacted by export control regulations. “Fundamental research” has been used to exempt most university activities. • In the post 9/11 world, control regulations impact a wider range of researchers and research activities.

4. Overview: Key Export Control Agencies Three U.S. Export Control and Licensing Programs: 1) U.S. Department of Commerce (Bureau of Industry and Security {BIS}) controls dual-use items (goods and technology with both civilian and military uses). Export Administration Regulations (EAR) – Commerce Control List 2) U.S. Department of State (Office of Defense Trade Controls) controls defense articles, defense services, and related technical data (including most space related articles). International Traffic in Arms Regulations (ITAR) – US Munitions List • U.S. Department of the Treasury oversees U.S. trade embargoes (Office of Foreign Assets Control) and enforces all three programs at U.S. borders (Customs Service) List of specifically designated nations, nationals, and individuals

5. Overview: Purpose of Export Regulations • Prevent terrorism • Prevent proliferation of weapons of mass destruction (biological, chemical and nuclear) • Assist in Compliance with US Trade agreements and sanctions • Restrict exports of goods and technology that might aid our adversaries

6. Overview: Export Controls Cover • ANY shipment, transfer or transmission out of the United States by any means (carried on your person or in luggage): • Goods (testing kits, equipment, hardware and materials) • Technology (Technical information and data) • Software/codes (commercial or custom) • Deemed Export (Disclosure of specific information and specific types of services to foreign nationals inside the U.S. • U.S. items wherever located, even internationally

7. Overview: Export illustrations • An actual shipment (or transmission) of items subject to the EAR or ITAR out of the U.S. • Includes the following biologicals: viruses, bacteria, toxins, sub-units of toxins, plant pathogens, genetic elements, (be careful) or pathogens, select agents, genetic elements of select agents, biosafety cabinets, fermenters. • Disclosing (including oral or visual) “technical data” or “technology” (including software source code) to a “foreign person”, whether in the U.S. (deemed export) or abroad. • Performing technical assistance, training, or other “defense services” for, or on behalf of, a “foreign person” (including foreign corporations) whether in the U.S. (deemed export) or abroad. • Re-exporting from foreign countries U.S. origin goods, technical data, goods incorporating U.S. components, goods manufactured from U.S. technology, “technical data”, or software.

8. Overview: Consequences of illegal Export • EAR • Criminal: $50K to $1 million or 5 times value of export, whichever is greater, per violation, 10 years imprisonment • Civil: revocation of 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 • 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 • Real life example • Texas Tech University – Microbiologist receives 2 yr prison sentence and fines of $58,375

9. Overview: Basic Regulations EAR • 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

12. Overview: Basic Regulations ITAR • International Traffic in Arms Regulations (ITAR) – 22 CFR Parts 120 – 130) • U.S. Munitions List (USML) enumerates the defense articles and services (furnishing technical assistance - includes design, engineering and use of defense articles) 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)

14. Overview: Basic Regulations OFAC Department of Treasury Office of Foreign Asset Control (OFAC) – Economic sanctions focus on end-user or country and may limit transfer of technologies/assistance to OFAC’s list of embargoed countries • In certain cases, OFAC regulations “trump” other government agencies such as the BIS (for example, shipping items to Iran) • OFAC has a “Specially Designated Nationals and Blocked Persons List” • Prohibits payments or providing “value” to nationals of sanctioned countries and certain entities

16. Key Issues For Universities • National Security vs. Academic Freedom • Exemptions & Exclusions • Fundamental Research • Non-Fundamental Research Concerns • Employment Exemption • Employment Exclusion • Education Exclusion • Public Domain Exclusion • Troublesome Clauses • Applications to Research • University/PI Responsibilities

17. Key Issues: National Security vs. Academic Freedom • Finding the appropriate balance between national security and traditional practices that support public access to all University activities. • Researchers need to be aware that these laws may apply to research whether sponsored or not • Important to understand the extent to which the regulations do NOT affect normal university activities

18. Key Issues: Exemptions and Exclusions • Fundamental Research Exemption (ITAR, EAR) • Deemed Export • Employment Exemption (ITAR only) • Education Exclusion (ITAR, EAR) • Public Domain Exclusion

19. But what about the Fundamental Research Exemption?

20. Key Issues: Fundamental Research Exemption • Generally permits US universities to allow foreign members of their communities (e.g. students, faculty and visitors) to participate in research involving export-controlled information on campuses in the U.S. without obtaining a deemed export license. • Does NOT permit the transfer of export-controlled materials or items abroad, even to research collaborators. • University based research is not considered “fundamental research” if the university or its researchers accept restrictions on the publication of the results of the project.

21. Key Issues: Deemed Export • The EAR defines a deemed export as the release of technology or source code subject to the EAR to a foreign national (no green card) in the U.S. • Such release is “deemed” to be an export to the home country of the foreign national. • Situations that can involve release of U.S. technology or software include: • Tours of laboratories • Foreign students or professors conducting research • Hosting foreign scientists • Emails, visual inspection, oral exchanges • Unless the fundamental research exemption applies, a university’s transfer of controlled technology to a non-permanent resident foreign national may be controlled and/or prohibited

22. Key Issues: Employment Exemption • ITAR – Bona Fide Employee Exemption (ITAR125.4(10) • Disclosures of unclassified technical data in the U.S. by U.S. institutions of higher learning to foreign persons who are their bona fide and full time regular employees

23. Key Issues: Employment Exemption (cont.) • Applies only if the employee’s permanent abode throughout the period of employment is in the United States • Applies only if the employee is NOT a national of a country to which exports are prohibited (section 126.1 ITAR) • Applies only if the institution informs the individual in writing that the technical data may not be transferred to other foreign persons without the prior written approval of the Directorate of Defense Trade Controls. • The Bona Fide employee portion typically applies to full time regular employees which does not include student and may not include postdoctoral researcher (depending on their funding source)

24. Key Issues: Education Exclusion • Applies to both U.S. and abroad locations: • Teaching foreign nationals general science, engineering and math commonly taught at the university • Conveying to foreign nationals information through listed courses in course catalogues and in the associated teaching laboratories • The EAR exclusion does NOT apply to controlled information shared outside the classroom or teaching lab of an academic institution

25. Key Issues: Public Domain Exclusion • Public Domain (ITAR) and publicly available (EAR) • 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

26. Key Issues: Troublesome Areas • COGR/AAU reported to the White House Office of Science and Technology Policy (OSTP) that “troublesome clauses restricting publication and participation by foreign nationals in research awards continued to be a significant problem for universities.” http://www.aau.edu/research/Rpt4.8.04.pdf

27. Key Issues: Troublesome Areas • Corporate contract may limit access by foreign nationals • Proprietary restrictions or restrictions on publication by corporate contract 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

28. Key Issues: Troublesome Areas • Government grants/contracts 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

29. Key Issues: Applications to Research • Government grants/contracts 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

30. Key Issues: Applications to Research Shipping • Shipping equipment, technology, software, computers, etc.,outside the U.S. may require a license

31. Key Issues: Applications to Research Travel • Taking equipment, computers, etc., out of the country may require a license • The Office of Foreign Asset Controls (OFAC) has restrictions • The Departments of Commerce, State and OFAC have denied entities/persons lists

32. Key Issues: Applications to Research Equipment Use • “Use” of controlled equipment by a foreign national may require a license even if Fundamental Research Exemption is applicable. • The transfer of controlled technology or source code of a controlled item to a FN may require a license, NOT the normal operation or use of the item or piece of equipment

33. Key Issues: Applications to Research Software • 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

34. Key Issues: University/PI Responsibilities • Review your research for potential EAR/ITAR issues don’t wait until the contract arrives! • Check to see if equipment/supplies to be purchased is controlled under EAR/ITAR – find the ECCN • 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 • 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!!!

35. Determining the Need for a License: The EAR Process • Does activity qualify as an Export? • Is the item subject to EAR? • Handout #1

37. Determining the Need for a License: The EAR Process • Export Control Decision Tree • Handout #2

39. Determining the Need for a License • 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

40. Determining the Need for a License: 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

41. Determining the Need for a License: ECCN BREAKDOWN EXAMPLE: 3D101 • 3– Category • D – Product Group • 1 – Reason for Control • 0 – Relates to Reasons for Control • 1 – Used for Numerical Ordering

42. Determining the Need for a License: Commerce Control List (CCL) Categories: 0. Nuclear Materials, Facilities & Equipment, and Miscellaneous • Materials, Chemicals, Microorganisms & Toxins • Materials Processing (i.e., making plastics, metals) • Electronics Development • Computer (development and programs) • Telecommunications and Information Security • Sensors and Lasers • Navigation and Avionics • Marine • Propulsion Systems, Space Vehicles and Related Equipment

43. Determining the Need for a License:CCL Product Groups • A = Equipment, Assemblies & Components • B =Production, Test & Inspection Equipment • C = Materials (raw) • D = Software • E = Technology

44. Determining the Need for a License: Reasons for Control • 001-099 National Security • 100-199 Missile Technology • 200-299 Nuclear Proliferation • 300-399 Chemical & Biological • 900-999 Foreign Policy • 980-989 Short Supply / Crime Control • 990-999 Anti-Terrorism/ United Nations

45. Determining the Need for a License: Finding the ECCN • Review general characteristics (technical parameters) of items to arrive at Category and Product Group • Match characteristics of item with ECCN and subparagraph • HINT: Check the CCL alphabetical index

46. I found the ECCN!

47. Determining the Need for a License: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)

48. Determining the Need for a License:GENERAL PROHIBITIONS, PART 736 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

49. EAR 90-what???

50. Determining the Need for a License:GENERAL PROHIBITIONS, PART 736 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/entities lists) • 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