Export Controls

Educational Information Exclusion

The ITAR states that Export Control Laws do not apply to information this is "general scientific, mathematical or engineering principles commonly taught in schools, colleges and universities." •The EAR applies the Educational Information Exclusion when the educational information is released by instruction in catalog courses and associated teaching laboratories

U.S. Person

U.S. Citizen, Green Card Holders, Asylee or Refugee Designations, Incorporated to do business in the U.S.

Red Flags Continued: Openness Restrictions

Agreements that mark items/information •Proprietary/ not in public domain (NDA's CDA's) •Marked as "export controlled" •Contains publication restrictions •Restricts hiring of foreign nationals

U.S. Department of Energy

4th Regulatory Nuclear Regulatory Commission

DDTC

Directorate of Defense Trade Controls (State Dept.),

BIS

Bureau of Industry and Security (Commerce Dept.),

Red Flags Continued: Misc.

Controlled Software Access to encryption source code

International Traffic in Arms Regulations

Covers articles, services, and related technical data designated as defense articles and services contained in the USML - U.S. Munitions List

Deemed Export

Disclosure or transfer of export controlled items [including technology and information] to a foreign entity or individual within the U.S. is deemed to be an export to the home country of the foreign person. •May occur by such means as: • Tours of laboratories • Involvement of foreign persons in the research • Oral exchanges, emails, or visual inspection • Hosting a foreign researcher

Dual-Use commodities, software and technology

Dual use = civil (commercial) and military (proliferation) applications OFAC

Fundamental Research Exemption

Excludes from Export Control Laws most basic research at a research university •EAR definition: (Part 734.8) •"basic and applied research in science and engineering, where the resulting information is ordinarily published and shared broadly within the scientific community. Such research can be distinguished from proprietary research and from industrial development, design, production, and product utilization, the results of which ordinarily are restricted for proprietary reasons or specific national security reasons" •ITAR definition: (Part 120.11) •Fundamental research in science and engineering performed at an accredited institution of higher learning in the US

EAR

Export Administration Regulations and maintains the CCL - Commerce Control List (covers trade items)

10 CFR sec 110: Export and Import of Nuclear Equipment and Materials Regulations

General Authorization: Furnishing public information , Furnishing assistance/aid in emergency situations or to improve safety, Participation in open meetings sponsored by educational, scientific or technical organizations

Red Flags Continued: Pathogens and Toxins

Genetic Elements and genetically modified organisms (ECCN 1C353) •Genetically modified organisms that contain nucleic acid sequences associated with the pathogenicity of microorganism controlled by 1C351.a to .c, 1C352 and 1C354. •Genetically modified organisms that contain nucleic acid sequences coding for any of the "toxins" controlled by 1C351.d or "sub-units of toxins" thereof.

Temporary exports under the "Tools of Trade" license exception apply when the laptop, PDA, cell phone, data storage devices and encrypted software are:

Hand carried with you while you travel •Carried in your luggage or baggage that travels with you •Shipped no more than thirty days prior to your departure, or may be shipped to you at any time while you are outside the country Generally, no export license is required so long as you •Retain these items under your personal custody and effective control for the duration of your travel •Effective Control - means retaining physical possession of an item or maintaining it in a secure environment •Do not intend to keep these items in these countries for longer than 1 year and •You are not traveling to Cuba, Iran, North Korea, Sudan, or Syria

Red Flags Continued: Pathogens and Toxins

Human and Animal Pathogens (ECCN 1C351 & 1C352) •Dengue fever virus •Ebola virus •Foot and mouth disease virus •Botulinum toxins

Red Flags Continued: Misc.

ITAR Controlled Technology - Anything that could be used to create a weapon of mass destruction

U.S. Export Laws When do you need a license?

If something is on the U.S. Munitions List (USML) you must have a license unless there is an exception •If something is on the Commerce Control List (CCL) you may need a license depending on end user/use and if an exception does not apply •If Office of Foreign Assets Control (OFAC) regulations apply a license is required unless there is an exception (although it may be a general license)

Publicly Available Exclusion -- EAR

Information/software listed on the CCL that is generally accessible to the public through one of the following ways: •Fundamental Research in Science and Engineering per Part 734.8 (can even have been conducted/created outside of the United States) •Publication in periodicals, books, print, electronic, or any other media available for general distribution either free or at a cost not exceeding the cost of reproduction and distribution (may even have a reasonable profit) •Libraries open to the public/university libraries •Subscriptions which are available without restriction either free or at a cost not exceeding the cost of reproduction and distribution (again, reasonable profit is ok)Subscriptions which are available without restriction either free or at a cost not exceeding the cost of reproduction and distribution (again, reasonable profit is ok) •Published patents and open (published) patent applications available at any patent office •Unlimited distribution at conferences, meetings, seminars, trade shows or exhibitions in the US or abroad that are generally accessible to the public for a fee reasonably related to the cost, and where attendees may take notes; and/or •Websites which are accessible to all members of the public, free of charge, and where the institution does not have knowledge or control of who visits the site or downloads the information or software.

Public Domain Exclusion -- ITAR

Information/software listed on the US Munitions List and is generally accessible and available to the public through or at one of the following: •Fundamental research in science and engineering per Part 120.11 - performed at an accredited institution of higher learning in the US •Libraries open to the public •Sales at newsstands or bookstores and Subscriptions available without restriction •Published patents available at any patent office •Unlimited distribution at conferences, meetings, seminars, trade shows or exhibitions in the US that are generally available to the public •Websites that are accessible to all members of the public, free of charge, and where the university does not have knowledge or control over who visits the site or downloads the information or software

ITAR

International Traffic in Arms Regulations

Red Flags Continued: Pathogens and Toxins

International Traffic in Arms Regulations (ITAR) Category XIV: Toxicological Agents including Chemical, Biological Agents, and Associated Equipment •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.

Something is export controlled if

It is not protected under an approved "Exclusion" (Fundamental Research Exclusion - I am working on a sponsored project and I am restricted from publishing my results) •It is on the U.S. Munitions List •It is on the Commerce Control List •It is a Defense Service as defined by the ITAR •It is EAR 99

What destroys the Fundamental Research Exemption

Limitation on publication of results •other than a brief less than 90 day advanced review by sponsor •Limitation on hiring of foreign nationals

Specially Designated Nationals & Blocked Persons (SDN List)

List contains names of individuals and organizations deemed to represent restricted countries or know to be involved in terrorism and narcotics trafficking

OFAC

Office of Foreign Assets Controls (Treasury Dept.)

What is an Export?

Physically sending export controlled items to a foreign country. Transmitting export controlled information or software electronically or digitally to a foreign country or foreign person. Use of export controlled technology on behalf or for the benefit of a foreign person or foreign country (Defense Service). Deemed Export

Red Flags Continued: Pathogens and Toxins

Plant Pathogens (ECCN 1C354) •Puccinia striiformia (Puccinia glumarum) •Rathayibacter toxicus

Red Flags Continued: Misc.

Providing technical assistance on export controlled technology to foreign individuals/entities

SDN List

Specially Designated Nationals & Blocked Persons

10 CFR sec 810: Assistance to Foreign Atomic Energy Activities

Specific Authorization: List based controls, covers providing sensitive nuclear technology, providing training or assistance for certain nuclear and reactor related activities, design, construction, fabrication of components, etc.

Foreign Person

any U.S. Person effectively owned or controlled by a foreign interest, foreign businesses not incorporated in the U.S., individuals holding a work or student visa (F1, J1, H1B)

Sanctions List

embargoed countries