Export Controls: An Overview

1. Export Controls: An Overview

2. What are Export Controls? • US laws that regulate the distribution to foreign nationals and foreign countries of strategically important technology, services and information for reasons of foreign policy and national security.

3. Why Does UF Care About Export Controls? • The unauthorized transfer of export controlled items to foreign nationals/ foreign persons or transactions with sanctioned countries, individuals or entities may violate Export Control Laws.

4. What is an Export? • Transfer of controlled technology, information, equipment, software or services to a foreign person in the US or abroad. • An export to a foreign person in the US is considered a deemed export.

5. Responsible Agencies • State Department • International Traffic in Arms Regulations (ITAR) • Commerce Department • Export Administration Regulations (EAR) • Treasury Department • Office of Foreign Assets Control (OFAC) • Other Agencies • DOE, NRC, DHS, Customs

6. The Good, The Bad and The Ugly • In general export controls have little or no impact on most of university research • May place restrictions on research and/or require a license, unless an exclusion applies • Violations lead to administrative, civil and criminal penalties

7. The Good (Activities not Subject to EC) • Fundamental Research • Employment Exclusion (ITAR only) • Educational Information • Public Domain/Publicly Available Information • Humanitarian/Informational • National Security Controls

8. Fundamental Research Exclusion • “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. • per NSDD 189

9. Employment Exclusion • Applies when a foreign person is a full-time, bona fide university employee with a permanent address in the US while employed.

10. Education Exclusion Applies when the information in question consists of general scientific, mathematical or engineering principles commonly taught in universities or information that is in the public domain.

11. Public Domain/Publicly Available Information Applies when the information is already in the public domain and does not have restrictions on who may access.

12. Humanitarian/Informational • Humanitarian Projects (OFAC) Country specific restrictions. • Information and Informational Materials Books, movies, music, etc. ‘in being’ at time of transaction.

13. National Security If the project is funded by the US Federal Government and there are security controls in place the project is not subject to export controls as long as the parties comply with the specific security controls.

14. The Bad (Activities Subject to EC) Many university activities aresubject to export controls and the exclusions may not always apply. • Proprietary Research • Development • ‘Use Technology’ • International Projects • Defense Services • Prohibited Activities

15. Penalties for Export Control Violation • Administrative penalties • Monetary fines • Jail time

16. UF Process • Proposal Processing Check List (step 1) • Items of concern in agreements and solicitations • Publication restrictions • Foreign national restrictions • Technical Review (step 2) • PI reviews regulations • PI discusses with DSR additional questions • PI certifies as to whether or not export control applies • If Export Control Applies (step 3) • PI, Department, DSR and general counsel (if necessary) work out appropriate technology control plan for project in question

17. DSR Export Control Strategy • Minimize the number of awards with export control restrictions • Ensure that cost of security for a sponsored project is borne by the Sponsor • Adequately protect those awards that have export control restrictions to prevent violations.

18. My Project is Subject to EC, Now What? • Actions Required for Your Sponsored Project • Export Control Training • Commodity Jurisdiction/Classification • Technology Control Plan Coordinate with DSR and General Counsel

19. The Technology Control Plan • Technology Control Plan contains the following elements: • Institutional Commitment • Commodity Jurisdiction and Classification • Physical Security Plan • Information Security Plan • Personnel Screening/Training Policy • Self-Assessment

20. Who’s Who in DSR Export Controls • Empowered Official: • Dr. Tom Walsh, Director Sponsored Research and Compliance (352) 392-3516 • Export Control Legal Liaison: • Amy Hass, Assistant General Counsel (352) 392-1358 • DSR Export Control Contact: • Brandi Boniface, Assistant Director (352) 392-5867

21. Managing the Export Controlled Project • What can trigger an export control review? • What if an export control violation occurs? • What if I am contacted by an enforcement agency?

22. What Can Trigger an EC Review • Change of project scope • Change of project personnel/parties (e.g., subcontractors, grad students) • Foreign travel • Visiting foreign scientists/others • Shipping export controlled equipment, materials or software overseas without a license or other required approval • Notification of a potential export control violation

23. What if an EC Violation Occurs • Remove foreign persons/foreign nationals from access • Secure the export control restricted commodity, software, technology or technical data • Contact DSR

24. What if I am Contacted by an Enforcement Agency? • Ask to see the Agent’s badge of authority • Cooperate with the Agent • Determine if the Security Officer has been notified, if not, direct the Agent to the Security Officer • Cindy Holmes (352) 392-9330 • Contact DSR • If Possible ask that any interview or discussion be conducted with Security Officer and DSR

25. Future Trends • More export control restrictions • DoD may develop DFAR Clauses that will identify EC restricted research (mainly ITAR) • Widespread China-specific restrictions for many EAR-restricted technologies • More projects that will be considered export control restricted • Audits by enforcement agencies

26. Export Control Glossary • CCL – Commerce Control List • EAR – Export Administration Regulations Department of Commerce/dual use technologies • ECCN – Export Control Classification Number • ITAR – International Trafficking in Arms Regulations Department of State/Military Technology and Defense Services • OFAC – Office of Financial Assets Control Department of the Treasury/Financial Dealings with Sanctioned/Embargoed Countries • TCP – Technology Control Plan • USML – United States Munitions List

27. Government Resources • State Department (ITAR) http://www.pmdtc.org/reference.htm • Commerce Department (EAR) http://www.bxa.doc.gov/licensing/ExportingBasics.htm • Treasury (OFAC) http://www.treas.gov/offices/enforcement/ofac/sanctions/index.html • OIG Report on Deemed Exports http://www.oig.doc.gov/oig/reports/2004/BIS-IPE-16176-03-2004.pdf

28. Organization Websites • Council on Governmental Relations http://www.cogr.edu • Association of American Universities http://www.aau.edu • SRA International http://www.srainternational.org/sra03/index.cfm • NCURA http://www.ncura.edu/ • Society for International Affairs http://www.siaed.org/

29. Closing • Questions • Contact Information Brandi Kay Boniface, CRA Amy Hass, Esq. Assistant Director for Research Assistant General Counsel University of Florida University of Florida 211 Grinter Hall 123 Tigert Hall Gainesville, FL 32611-5500 Gainesville, FL 32611-3157 (352) 392-5876 (352) 392-1358 Boniface@ufl.eduamhass@ufl.edu http://rgp.ufl.edu/research/compliance.html#conduct