Export Controls, Classified & Restricted Projects, & the Research Administrator

1. Export Controls, Classified &Restricted Projects, &the Research Administrator

2. Operations Security • OPSEC is a process that identifies critical information to determine if friendly actions can be observed by adversary intelligence systems, determines if information obtained by adversaries could be interpreted to be useful to them, and then executes selected measures that eliminate or reduce adversary exploitation of friendly critical information.

3. Academic Freedom • The freedom to conduct research, teach, speak and publish, subject to the norms and standards of scholarly inquiry, without interference or penalty, wherever the search for truth and understanding may lead.

4. OSU Environment • International Students & Faculty • Visiting Scholars & Industry Colleagues • Open Campus • Brilliant Minds • OSU Researchers are contributing to the defense of our Nation.

5. OPSEC - What Can You Do • Participate in Security Education Opportunities • Be Aware • Be Alert • Report Suspicious Behavior

6. Classified Research Suzette Lavoie, College of Engineering, Architecture, & Technology

7. True or False? • Oklahoma State UniversityPerforms Classified Research

8. FALSE • Oklahoma State University does NOT have a Facility Clearance to allow the award of a classified contract • The majority of U.S. universities decline to accept classified research contracts • The majority of U.S. universities decline to admit they perform classified research

9. Responsibility for OSU Classified Research • The responsibility for managing classified research at OSU has been assigned to the OSU Center for Innovation and Economic Development (OSU CIED)

10. OSU Classified Research • Proposals & Awards that require access to Classified Information are required to be proposed and awarded through the OSU CIED • The OSU CIED Facility Clearance Level is Top Secret. The OSU CIED storage capability is Secret.

11. Identifying Potential Classified Contracts • Title 48-Federal Acquisition Regulations SystemChapter 1-Federal Acquisition RegulationsPart 4-Administrative MattersSubpart 4.4-Safeguarding Classified Information Within Industry Sec. 4.404 Prescribing Contract clause: • The contracting officer shall insert the clause at (FAR) 52.204-2, Security Requirements, in solicitations and contracts when the contract may require access to classified information… • If a cost contract for research and development with an educational institution is contemplated, the contracting officer shall use the clause with its Alternate I

12. Contract Negotiation Exception to Classified Clauses • Please delete • Only applicable when contract involves access to classified information • University does not perform classified research

13. DD254 • Department of Defense Contract Security Classification Specification • FAR Section 4.403 requires a DD254 for all solicitations and contracts when contractors or prospective contractors may require access to classified information • Provides to the contractor the security requirements and the classification guidance that would be necessary to perform on the classified contract

14. DD254 Sample

15. Preparing a Proposal for Classified Research • Contact OSU CIED Industrial Security Staff as soon as possible • Budgetary Costs to Consider • Work Area Renovations maybe Required • Personnel Security Clearance Processing Time(Currently 18 months for a Top Secret clearance to be obtained) • Only U.S. Citizens may be granted a Personnel Security Clearance

16. Performance of Classified Work, as Consultants to External Organizations • It is the standard practice for OSU CIED not to provide clearances on behalf of faculty or other personnel who require such clearances solely to satisfy outside consulting obligations to external organizations. In such cases, the Government Agency or private company for which the individual is consulting usually initiates and sponsors the individual’s security clearance.

17. Performance of Classified Work, as Consultants to External Organizations • Cleared Faculty members or staff must be assigned to an active OSU CIED classified contract • Individual Faculty members or staff may serve on classified projects as consultants to the Federal government, commercial contractors, or other outside organizations. OSU CIED does not keep records of these project, nor monitor them.

18. Industrial Security Definitions • Classified Information • Official information, including foreign classified information, which requires protection in the interest of national defense and which has been so designated by appropriate authority • Classified Contract • Any contract that requires or will require access to classified information by the contractor or his employees in performance of the contract. (A contract may be a classified contract even though the contract document is not classified.)

19. Industrial Security Definitions • Contractor • Any individual, company, corporation or educational activity that has entered into a security agreement with the government or who has a contract to perform work, services or produce a product for the government or a prime contractor doing business with the government. • National Industrial Security Program Operating Manual (NISPOM) • This manual implements the National Industrial Security Program by prescribing the requirements, restrictions and other safeguards to prevent unauthorized disclosure of classified information.

20. Industrial Security Definitions • Facility Security Clearance • An administrative determination that, form a security viewpoint, a facility is eligible for access to classified information of a certain category (e.g., Confidential, Secret, or Top Secret) • Personnel Security Clearance • An administrative determination by DOD based on an individual’s personal history and National Agency Check or background investigation that the individual is eligible, from a security point of view, for access to classified information of the same or lower category as the level of the personnel security clearance begin granted

21. Industrial Security Definitions • Need-to-know • A determination made by the possessor of classified information that a prospective recipient, in the interest f national defense, has a requirement for access to, knowledge of or possession of the classified information in order to perform tasks or services essential to fulfillment of a classified contract or program approved by a user agency

22. OSU Classified Research Contacts • Facility Security Officer (FSO) Joseph W. Alexander, President, OSU CIED • FSO Assistants: Shawna Goodwin, OSU CIED shawna.goodwin@okstate.edu 405.744.2325 Suzette Lavoie, CEAT suzette.lavoie@okstate.edu 405.744.9497

23. National Security Decision Directive 189(NSDD 189 - September 21, 1985) • It is U.S. policy…that, to the maximum extent possible, the products of fundamental research remain unrestricted. It is also U.S. policy…that, where the national security requires control, the mechanism for control of information generated during federally-funded research in science, technology & engineering at colleges, universities & laboratories is classification… • Accordingly, when the government needs to control federally –funded research results, it will classify the information, otherwise the information will remain unrestricted

24. “Education is the cheap defense of nations.” Edmund Burke (1729-1797)

25. Suzette Lavoie Research Administration Officer College of Engineering, Architecture & Technology 201 ATRC 405.744.9497 suzette.lavoie@okstate.edu

26. Export Controls Putting the Pieces Together Jada Bruner Gailey, University Research Services

27. Reasons for the Regulations • Prevent terrorism • Restrict exports of goods & technology that could help our enemies • Restrict exports that could hamper U.S. economic vitality • Prevent proliferation of weapons of mass destruction

28. What is EAR? • Export Administration Regulations15 CFR §§ 700-799. • U.S. Department of Commerce, Bureau of Industry and Security (BIS)

29. What is ITAR? • International Traffic in Arms Regulations22 CFR §§ 120-130 • U.S. Department of State through the Directorate of Defense Trade Controls (DDTC)

30. What is OFAC? • Office of Foreign Assets Control, U.S. Department of the Treasury • Title 31 U.S. CFR, Chapter V & various Executive Orders • Trading with the Enemy Act (TWEA), 50 U.S.C. app. §§ 1-44 • International Emergency Economic Powers Act (IEEPA), 50 U.S.C. §§ 1701-06 • Antiterrorism & Effective Death Penalty Act, 8 U.S.C. 219, 18 U.S.C. 2332d & 18 U.S.C. 2339b • Foreign Narcotics Kingpin Designation Act, Pub. L No. 106-120, tit. VIII Stat 1606, 1626-1636 • Syria Accountability & Lebanese Sovereignty Restoration Act, Pub. L No. 108-175

31. What is an export? • An export is an actual shipment or transmission of items, services, or technical data subject to either the EAR or the ITAR out of the U.S., or release of technology, software, or technical data subject to either EAR or ITAR to a foreign national in the U.S.

32. How is an export made? • Technology, software, or technical data is “released” for export through: • Visual inspection by foreign national of U.S. origin equipment and facilities; • Oral exchange of information in the U.S. or abroad; • Transfer or shipment via any means (physical or electric) to a foreign entity; • Providing a service, or the application to situations abroad of personal knowledge or technical experience acquired in the U.S.

33. What is a “Deemed” export? • Release of technology or source code subject to the EAR to a foreign national in the U.S. is “deemed” to be an export to the home country of the foreign national under the EAR.

34. What is “technology”? • Technology is specific information necessary for the development, production, or use of a Commerce Department product controlled for export. • “Use” is defined as operation, installation (including on-site installation), maintenance (checking), repair, overhaul and refurbishing.

35. Subject to EAR? • The primary focus of EAR is to control the export of “dual-use” technologies • All items in the U.S., EXCEPT: • Publicly available technology & software (excluding encryption) • Items subject to the exclusive jurisdiction of another Federal Department or Agency • Literary publications, such as newspapers or literary works (non-technical in nature) • Information resulting from fundamental research & educational information

36. Subject to EAR? • Items outside the U.S. • U.S. origin items wherever located • Certain foreign-made items, if: • The value of the U.S. content exceeds the de minimis percentage • The foreign-product item is the direct product of U.S. technology or software • Activities of U.S. and Foreign Persons • Related to proliferation • Prohibited by an order issued under the EAR • Technical assistance with respect to encryption commodities or software

37. Subject to the EAR? (See 734.2-5) NO Exit the EAR YES Is your item classified under an ECCN on the CCL? NO ECCN EAR99 Do General Prohibitions 4-10 apply? Do General Prohibitions 4-10 apply? NO No License Required (NLR) Is there an “X” in the box? NO NO YES YES YES Use License Exception Is a License Exception available? YES NO Submit an application for license

38. Is a license needed? • What are you exporting? • Where are you exporting? • Who will receive your item? • What will your item be used for?

39. What are you exporting? • Key = does the item you are intending to export have a specific Export Control Classification Number (ECCN) • All ECCNs are listed in the Commerce Control List (CCL) http://www.access.gpo.gov/bis/ear/ear_data.html#ccl

40. EAR99 • If your item is controlled but not listed on the CCL, it is designated as EAR99. • EAR99 items generally consist of low-technology consumer goods and do not require a license in many situations.

41. Where are you exporting? • Restrictions vary from country to country • The most restricted destinations are embargoed countries (i.e., Cuba, Iran, Libya, North Korea, Sudan, & Syria) • Is there an “X” in the box?

42. Who will receive your item? • Certain individuals & organizations are prohibited from receiving U.S. exports • Others may only receive goods if they have been licensed. http://www.bis.doc.gov

43. Is a license required? • No License Required (NLR) • License Exception • License

44. Subject to ITAR? • An article or service is deemed to be inherently military in character • Found on the U.S. Munitions List (USML) • Not much latitude, few exemptions • Includes: • Most space related technologies • Technical data related to defense articles & services

45. What are defense articles? • Any item or technical data on the USML • The USML is a list of categories of items, defense articles, & related technology designated as defense or military related. http://www.fas.org/spp/starwars/offdocs/itar/p121.htm

46. What are defense services? • This includes furnishing of assistance to foreign persons, whether or not in the U.S., with respect to defense articles, & the furnishing of any technical data associated with a defense article

47. Differences EAR ITAR Covers military items Will deny a license for exports/sales of defense services or articles to certain countries Research must already be published Stricter proprietary review concerns Has exemption for foreign nationals if full-time regular employee of a university Prepublication review/ approval invalidates the fundamental research exemption • Covers dual-use items • Regulates items designed for commercial purposes but that can have military applications • Covers goods, test equipment, materials, & the technology & software • Differs on “ordinarily publishable vs. published • Not as many license restrictions to certain countries • More exemptions available

48. Key Issues for Universities • Public Domain • Information should be published & generally available to the public • Through sales at bookstands & stores • Through subscriptions available without restrictions • At libraries open or available to the public • Through patents • Through unlimited distribution at conference, seminar, trade show, generally accessible to the public • Includes technology & software that are educational & released by instruction in catalog courses & associated labs & universities

49. Key Issues for Universities • Deemed Exports • Information released to a foreign national in the U.S. • Tours of laboratories • Foreign students or professors conducting research • Hosting foreign scientists • E-mails, visual inspections, oral exchanges • Unless the fundamental research exclusion applies, a university’s transfer of controlled technology to a non-permanent resident foreign national may require a license &/or be prohibited

50. Key Issues for Universities • Technology Control Plans • Ensures that controlled technology is secured from use and observation by unlicensed non-U.S. citizens • Outlines the procedures to be taken to handle and safeguard controlled technology • Project Director/Principal Investigator is responsible for developing a written TCP