U.S. Export Controls, Sanctions and Restricted Parties

1. U.S. Export Controls, Sanctions and Restricted Parties Awareness Overview 2011 Updated 7/8/11

2. U.S. Export Control Regulations • Federal regulations designed to advance the national security, foreign policy and economic interests of the United States • Regulate physical shipments as well as transmission of information regarding specified controlled technologies/technical data • Regulate exports to foreign nationals/foreign organizations whether they are “across the border” or in the United States

3. Potential Exports at UMB(or, why might this apply to me?) • Export controls cover materials and technologies that may be used in research here at UMB such as • Pathogens (toxins, viruses, bacteria, fungi) • “Medical countermeasures” • Robotics • Hardware, software • Dual use items (e.g., night vision goggles)

4. Potential Exports at UMB(or, why might this apply to me?) • UMB faculty collaborate globally through international sponsors, foreign subrecipients, foreign consultants • Foreign persons on campus (visiting scientists, employees on work visas, students) may have access to controlled information, equipment, or materials

5. How Export Controls Work • You plan to send or disclose a controlled item, technology or information to a non-U.S. person • Consult regulations • Type and specifications of controlled item • Purpose of use • Destination country • Destination person • Exclusion or exception applies; no general prohibition applies … OR … • A license application is required and submitted for U.S. government review and approval

6. UMB Export Control Policy • UMB is committed to full compliance with all applicable laws governing U.S. sanctions, embargoes, traffic in arms, and the export of goods, assets, technology and information (collectively, “Export Control”). All UMB personnel are subject to this policy. • Download the policy: http://www.ord.umaryland.edu/research%20docs/UMBExportControlPolicy0209.pdf

7. Export Control Regulations • Department of State: Arms Export Control Act • International Traffic in Arms Regulations (ITAR) • Covers military- and space-related technologies • U.S. Munitions List 22 CFR Part 121 • Department of Commerce: Export Administration Act • Export Administration Regulations (EAR) • Covers commercial technologies • Covers “dual use” technologies (i.e., commercial + military proliferation applications) • Commerce Control List 15 CFR Part 774 • More information: http://www.ord.umaryland.edu/exportcontrol/agencies_regs.html

8. Sanctions and Restricted Parties • The U.S. government may apply economic boycotts, trade embargoes or other actions against specific countries and/or specific activities (such as terrorism or trafficking) • Primarily administered by the Department of the Treasury, Office of Foreign Assets Control (OFAC) • The Departments of State, Commerce and Treasury maintain lists of individuals and entities denied export privileges and/or who are barred from financial and other transactions for reasons related to U.S. security, foreign policy or economics • Consolidated screening list • More information: http://www.ord.umaryland.edu/exportcontrol/restrictedpartyscreening.html

9. Foreign Persons (Foreign Nationals) • A person in the U.S. in non-immigrant status • Visa-holders, including H-1B, H-3, L-1, J-1, F-1, O-1 • A person unlawfully in the U.S. • A business or other entity not incorporated in the U.S. or a foreign government • Individuals (including U.S. citizens) who represent these entities • For export purposes, U.S. nationals are: • U.S. citizens • U.S. Permanent Residents (Green Card) • U.S. Asylum Grantees and Refugees (limited time period)

10. For compliance, • We need to understand • What information, technology or technical data may be involved • Who will receive the information, technology or technical data (individuals and entities) • Who will benefit from certain services provided • We need to ensure that the awards that fund our research allow unrestricted publication of results

11. How do I comply? • Know and recognize “red flags” • Find out what technologies/information in your work may be controlled • See “Dig Deeper”, later in these slides • Ask for “restricted party screening” for foreign persons, whether in your lab or overseas • Ask for advice before you export covered technology

12. Learn to Spot “Red Flags” • Restrictive terms in agreements • Who can participate in the work • What you can publish • When you can publish • How you can share or use results • Work done abroad • Sending abroad information, material or equipment • Electronic sharing of software or other technology including • Not publicly available • Encryption software • Defense article or service • Ultimate destination or use unknown (you send it overseas and the recipient sends it to someone else) • Sending, transmitting or disclosing to a sanctioned country or a person or organization on the restricted party lists

13. Exclusions • Most research and teaching that takes place in the U.S. on campus can qualify for exclusions and/or exemptions

14. Fundamental Research Exclusion • Applies to research data and information • Applies to research performed on campus here in the U.S. and where there are NO RESTRICTIONS on publication or dissemination of the research results • Does NOT apply to • Physical goods • Encryption software • Research where there is no intention to publish the results • Research conducted outside of the United States

15. Full Time Employee Exception • Applied only under ITAR • Applies to release of unclassified information to a non-U.S. person who is a full-time, bona-fide employee, with a permanent abode in the U.S. during employment, provided the institution informs the employee in writing of export control restrictions • A certification for this purpose is available • Applies to technical data only, not assistance (e.g. training) or materials (e.g. controlled equipment, chemicals, and similar)

16. Registered Student Exception • Applies to educational information released by instruction in catalog courses and associated teaching laboratories • Applies to courses available globally on-line (“distance learning”) - but not to OFAC-embargoed countries • Does NOT apply to instruction or training regarding design, development, engineering, manufacture, assembly, testing and use of a defense article • Does not apply to encryption software • Dissertation research must meet the standards for "fundamental research" to qualify under this exception as "publicly available"

17. Public Domain (ITAR); Publicly Available (EAR) Exclusions • Applies to information generally accessible to the public through libraries, unrestricted subscriptions, bookstores, newsstands, published patent information, open conferences and meetings • Does NOT apply to instruction or training regarding design, development, engineering, manufacture, assembly, testing and use of a defense article or service, even if the information is in the public domain

18. Tool of the Trade • Temporary export of a “tool of the trade”, such as mass market software (e.g., Vista) and laptop, does not require a license if it is • Being used for the employers work • Remains under the control of the U.S. person at all times • Returned to the U.S. within one year • Does NOT apply to information, materials, equipment, software or technology that is a defense article or service • Restrictions apply to encryption software • Presumed illegal to take “tools of the trade” to embargoed countries

19. Defense articles/services defined: The intended use of the article or service after its export (i.e., for a military or civilian purpose) is not relevant in determining whether the export is subject to the ITAR controls. Defense article: 22 CFR 120.6 Any item or technical data listed on the United Stated Munitions List. This term includes technical data recorded or stored in any physical form, models, mockups or other items that reveal technical data directly relating to items on the United States Munitions List. It does not include basic marketing information on function or purpose or general system descriptions. Defense service:  22 CFR 120.9 Furnishing technical data or assistance (including training) to foreign persons (i.e., foreign nationals), whether in the United States or abroad in the design, development, engineering, manufacture, production, assembly, testing, repair, maintenance, modification, operation, demilitarization, destruction, processing or use of defense articles; or, military training of foreign units and forces. Technical data: 22 CFR 120.10 Information other than software which is required for the design, development, production, manufacture, assembly, operation, repair, testing, maintenance, or modification of defense articles, but does NOT include information concerning general scientific, mathematical or engineering principles commonly taught in schools, colleges and universities or information in the public domain (including the fundamental research exclusion)

20. Routine Compliance Areas at UMB

21. Visiting Scientists/Scholars http://www.ord.umaryland.edu/international_collaborations/index.html#VisitingScientist Visiting Scientist/Scholar Agreement Questionnaires • ORD reviews the questionnaire responses and screens the proposed visitor using restricted party screening software. • ORD contacts the PI if issues or concerns arise. • If no issues or concerns are noted, the agreement is signed.

22. Subrecipient Agreements • Department submits request in eSuRF • If the subaward will be made to a foreign entity, ORD • Screens the foreign organization, the responsible investigator and any other key individuals listed using the restricted party screening software • Reviews the scope of work to identify any export controlled technology/technical data • ORD contacts the PI if issues or concerns arise. • If no issues or concerns are noted, the subaward is issued.

23. I-129 Non-immigrant Visa Petition http://www.ord.umaryland.edu/exportcontrol/uscis_form_i_129_info.html • USCIS Form I-129 - Part 6 Certification: The petitioner (the person signing the form) certifies that they have reviewed the export control regulations and that a license is not required, or is required and that the visa-holder will not have access to the controlled item/information until the license is obtained • Office of International Services and ORD will review the petition; information about what work/research the foreign person will do is required • Do not sign the petition (Form I-129) until you have heard from OIS/ORD that the review has been completed • Should any restricted party or export control issues arise, the matter will be discussed with the department (supervisor, PI, administrator, as appropriate)

24. Shipping • Be aware of the requirements for proper labeling and marking and receive proper certification. Contact EHS for information and training • Shipping tangible items outside of the United States usually requires an export license determination to correctly complete the shipping documentation. Contact ORD or EHS for information

25. Foreign Travel http://www.ord.umaryland.edu/exportcontrol/foreigntravel.html • Foreign travel to meetings or for other scientific exchange is generally exempt from export controls UNLESS the findings include detailed information regarding controlled items or technologies. • Research or education activities in embargoed countries are restricted • If you are taking UMB-owned equipment out of the country, be aware that some equipment (e.g., GPS, specialty software) may require a license. Contact ORD for a determination

26. Contact Information • Office of Research and Development Marjorie Forster, Assistant Vice President for Research and Global Health Initiatives 410-706-6631 mforster@umaryland.edu Janet Simons, Director, Research Policy 410-706-5632 jsimons@umaryland.edu • Environmental Health and Safety Jim Jaeger, Director 410-706-7055 jjaeger@af.umaryland.edu

27. More information http://www.ord.umaryland.edu/exportcontrol/index.html

28. Dig Deeper The following slides provide additional references, links and information about: • EAR • ITAR • Country Issues (Embargoes/Sanctions) • Violations and Penalties • Related Laws • Flowcharts and Questionnaires

29. Regulations • Export Administration Regulations (EAR) Department of Commerce export controls (15 CFR §§734-774) • International Traffic in Arms Regulations (ITAR) Department of State export controls (22 CFR §§120-130) • Foreign Assets Control Regulations (FACR) U.S. Treasury exchange controls (31 CFR §§500-599) • US Customs Service Regulations Automated Export Shipping documentation (15 CFR §§30-199) Look up a CFR reference: http://ecfr.gpoaccess.gov/cgi/t/text/text-idx?c=ecfr&tpl=%2Findex.tpl

30. EAR/Commerce Control List • Category 0 - Nuclear Materials, Facilities & Equipment (and Miscellaneous Items) • Category 1 - Materials, Chemicals, Microorganisms, and Toxins • Category 2 - Materials Processing • Category 3 - Electronics • Category 4 - Computers • Category 5 (Part 1) - Telecommunications • Category 5 (Part 2) - Information Security • Category 6 - Sensors and Lasers • Category 7 - Navigation and Avionics • Category 8 - Marine • Category 9 - Propulsion Systems, Space Vehicles and Related Equipment

31. EAR/Commerce Control List – Category 1 EXAMPLES of Category 1 controlled items • Gas masks, protective suits designed to protect against chemical warfare, tear gas, radioactive materials, biological agents • Chemicals that may be used as precursors for toxic chemical agents • Viruses • Rickettsia • Bacteria (e.g., Bacillus anthracis, Chlamydia psittaci, Francisella tularensis, Shigella dysenteriae) • Toxins (e.g., Botulinum toxins, Shiga toxin, Staphylococcus aureus toxins • Fungi • Vaccines against controlled items

32. ITAR/U.S. Munitions List Category I - Firearms, Close Assault Weapons and Combat Shotguns Category II - Guns and Armament Category III - Ammunition/Ordnance Category IV - Launch Vehicles, Guided Missiles, Ballistic Missiles, Rockets, Torpedoes, Bombs and Mines Category V - Explosives and Energetic Materials, Propellants, Incendiary Agents and Their Constituents. Category VI - Vessels of War and Special Naval Equipment. Category VII - Tanks and Military Vehicles Category VIII - Aircraft and Associated Equipment Category IX - Military Training Equipment and Training Category X - Protective Personnel Equipment and Shelters Category XI - Military Electronics Category XII - Fire Control, Range Finder, Optical and Guidance and Control Equipment Category XIII - Auxiliary Military Equipment Category XIV - Toxicological Agents, Including Chemical Agents, Biological Agents, and Associated Equipment. Category XV - Spacecraft Systems and Associated Equipment Category XVI - Nuclear Weapons, Design and Testing Related Items Category XVII - Classified Articles, Technical Data and Defense Services Not Otherwise Enumerated Category XVIII - Directed Energy Weapons Category XIX - [Reserved] Category XX - Submersible Vessels, Oceanographic and Associated Equipment Category XXI - Miscellaneous Articles

33. ITAR/USML – Category XIV EXAMPLES of Category XIV controlled items • (a) Nerve agents (as specified) • (b) Biological agents and biologically derived substances specifically developed, configured, adapted, or modified for the purpose of increasing their capability to produce casualties in humans or livestock, degrade equipment or damage crops • Medical countermeasures, to include pre- and post-treatments, vaccines, antidotes and medical diagnostics, specifically designed or modified for use with the chemical agents listed in paragraph (a) of this category and vaccines with the sole purpose of protecting against biological agents identified in paragraph (b) of this category. • Technical data and defense services related to the defense articles enumerated in this category

34. Country Issues • For export purposes, the United States is: • 50 States and District of Columbia • Puerto Rico • U.S. Virgin Islands • Guam • American Samoa • Northern Mariana Islands • OFAC embargoed countries: Cuba, Iran, Myanmar (Burma), North Korea, Sudan, and Syria • Assume that any transaction, including financial, will require a general or specific license from OFAC. • License exemptions are very limited for these countries.

35. Country Issues - OFAC • List Based Sanctions (OFAC) • Balkans • Belarus • Burma • Cote D’Ivoire • Democratic Republic of Congo • Iraq • Lebanon-Persons Undermining the sovereignty of Lebanon • Liberia-Former Liberian Regime of Charles Taylor • Somalia • Zimbabwe • Anti-Terrorism • Diamond Trading • Counter Narcotics Trafficking • Non-Proliferation

36. Country Issues -ITAR-prohibited Export Destinations • Afghanistan • Belarus • Burma (Myanmar) • China • Cote d'Ivoire • Cuba • Cyprus • Democratic Republic of Congo • Eritrea • Haiti • Iran • Iraq • Lebanon • Liberia • Libya • North Korea • Sierra Leone • Somalia • Sri Lanka • Sudan • Syria • Venezuela • Vietnam • Yemen • Zimbabwe

37. Country Issues - EAR • EAR/Commerce Control List • Export restrictions are determined by the technology or product to be exported and the country of destination • EAR Part 744 – Supplement 4 – Entity List • Lists certain entities subject to license requirements for specified items • Examples: Kitro Corporation (Canada); 54th Research Institute of China, Northwestern Polytechnical University (China); Ben Gurion University (Israel); Pyramid Technologies (U.A.E.)

38. Penalties for Violation • Denial of export privileges • Seizure and forfeiture • Suspension; debarment • ITAR: Civil penalty up to $500,000 fine for each violation • ITAR: Criminal penalty, willful violation, up to $1,000,000 fine and/or imprisonment not more than 10 years • EAR: Civil penalty up to $500,000 fine for each violation • EAR: Criminal penalty, fine of up to five times the value of the exports or reexports involved or $50,000, whichever is greater and/or imprisonment not more than 5 years; in more egregious cases of willful violation, fine of up to $250,000 and/or imprisonment not more than 10 years • Negative publicity • UMB: Disciplinary action up to termination and dismissal

39. Related Laws • Trading with the Enemy Act (1917) authorized the use of economic sanctions against foreign nations, citizens and nationals of foreign countries, or other persons aiding a foreign country and is the oldest such statute still in use by the United States. 50 U.S.C. App. §§§§ 1-44 • International Emergency Economic Powers Act (1977), 50 U.S.C. §§ 1701-1707 • USA PATRIOT Act (Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001) – makes it a crime to provide material support to a foreign organization engaged in terrorist activity.

40. Flowcharts & Questionnaires • Export Control Decision Flowchart:http://www.ord.umaryland.edu/exportcontrol/flowchart.html • Stanford University’s Decision Tree • Download the Export Control Questionnaire:http://www.ord.umaryland.edu/exportcontrol/ExpContForm_Rev010609.pdf