Session 4 Export Controls

Agencies that Govern Export Controls:

- Directorate of Defense Trade Controls (DDTC) Export Administration - (EAR) (15 CFR sec. 730-774) -Office of Foreign Asset Control (OFAC) - Nuclear Regulatory Commission (NRC)

Foreign Person

-Any person who is not a lawful permanent resident of the US -Any foreign corporation or other entity or group that is not incorporated or organized to do business in the US -Any foreign government

Myths

-Export control regulations apply only to military hardware or software -The government really doesn't enforce all of these regulations -Talk to Professor Roth, or the FBI -My equipment is "on loan" from another university, or collaborator, therefore they take care of all of this

Exemptions/Exclusions

-Fundamental Research -Public Domain/Fundamental Research ITAR: -Educational Information -Public Domain -Exemption for Disclosures to Bona Fide Full-time Employees (ITAR-regulated research only):

Possible Red Flags

-I would like to host a foreign visitor at the University -I would like to travel outside of the US -I would like to carry items outside of the US -I would like to ship items outside of the US -I would like to have foreign persons participate in research activities -I would like to participate in an international collaboration -I would like to accept restrictions on publication, foreign national participation, or involve proprietary information in my activity

Directorate of Defense Trade Controls (DDTC) -Military, State Dept

-International Traffic in Arms Regulations (ITAR) (22 CFR sec. 120-130) -US Munitions List (22 CFR Sec. 121) - Inherently military technologies

Exports

-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

Office of Foreign Asset Control (OFAC)-Economic, Treasury Dept

-Prohibits transactions and/or interactions with countries, entities and individuals subject to trade sanctions -Sanctions Programs -Specially Designated Nationals and Blocked Persons (SDN List)

U.S. Person

-US Citizen -Green Card holders -Aliens who are "Lawful Permanent Residents" -Other Protected Individuals -Designated an asylee or refugee -A temporary resident under amnesty provisions -Any entity incorporated to do business in the U.S.

Nuclear Regulatory Commission (NRC

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 -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.

Deemed Exports

A "deemed export" occurs when there is a "release in the United States of 'technology' or source code to a foreign person." Similarly, "release" is defined in the BIS Rules as "visual or other inspection by a foreign person of items that reveals 'technology' or source code subject to the EAR to a foreign person. -Transferring by a person in the United States of registration, control, or ownership of: • A spacecraft subject to the EAR that is not eligible for export under License Exception STA(i.e., spacecraft that provide space-based logistics, assembly or servicing of any spacecraft) to a person in or a national of any other country; or • Any other spacecraft subject to the EAR to a person in or a national of a Country Group D:5 country.

Bureau of Industry and Security (BIS)-Commerce, Commerce Dept

Export Administration Regulations (EAR) (15 CFR sec. 730-774) -Commerce Control List (CCL) (15 CFR sec. 774) -"Dual-Use" technologies (primary civil use) -Denied Persons List (DPL)

U.S. Export Control Regulations Some Common Exceptions

Export regulations have built in exemptions for certain types of activities and information: •Publicly Available -EAR •Public Domain --ITAR •Educational Information •Fundamental Research •Travel: Tools of the Trade

Public Domain/Fundamental Research ITAR:

ITAR definition: (Part 120.11)Public Domain: means information which is published and which is generally accessible or available to the public ...(8) through fundamental research in science and engineering at accredited institutions of higher learning in the U.S. where the resulting information is ordinarily published and shared broadly in the scientific community... The ITAR citation is 22 CFR § 120.11

Publicly Available Information--EAR- common exemptions

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. Note: Problem could occur if person answers questions related to patent, professor can't just answer questions just because patent exist.

Public Domain --ITAR- common exemptions

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

U.S. Export Control Regulations, summary

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

Tools of the Trade - common exemption

Temporary exports under the "Tools of Trade" license exception apply when the laptop, PDA, cell phone, data storage devices and encrypted software are: - Less than 1 year •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

Exemption for Disclosures to Bona Fide Full-time Employees (ITAR-regulated research only):

University release or disclosure of unclassified information to foreign nationals is exempt from export licensing if 1) the foreign national is the University's bona fide full-time regular employee, 2) the employee's permanent abode throughout the period of employment is in the U.S., 3) the employee is not a national of an embargoed country, and 4) the University informs the employee in writing that information disclosed may not be disclosed to other foreign nationals without governmental approval.

Fundamental Research

research in science, engineering or mathematics, the results of which ordinarily are published and shared broadly within the research community, and for which the researchers have no accepted restrictions for proprietary or national security reasons." EAR is 15 CFR § 734.8.

Educational Information

the sharing of information commonly taught (ITAR) or educational information released by instruction in catalog courses and associated teaching laboratories (EAR). Therefore, in general, no license is required to share information as part of a course being taught. Note, however, that the education exclusion does not apply to proprietary information and certain information deemed classified or sensitive by the federal government.

Public Domain

the sharing of technical data or information with a foreign national inside the U.S. as part of a class, laboratory, or conference or seminar, if the same technical data or information has already been widely published or is available in libraries or through newsstands, bookstores, subscriptions or free web sites or is disclosed in published patent applications.

Deemed Export -Examples

• Tours of laboratories• Involvement of foreign persons in the research • Oral exchanges, emails, or visual inspection • Hosting a foreign researcher

U.S. Export Control Regulations 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 persons

U.S. Export Control Regulations Red Flags Continued: Misc.

•Controlled Software •Access to encryption source code •ITAR Controlled Technology •Anything that could be used to create a weapon of mass destruction •Providing technical assistance on export controlled technology to foreign individuals/entities *For example if someone asks a questions about unpublished research during conference

Fundamental Research- common exemptions

•Exempts from Export Control Laws most research at a research university •EAR definition: (Part 734.8) •"research in science, engineering or mathematics, the results of which ordinarily are published and shared broadly within the research community, and for which the researchers have no accepted restrictions for proprietary or national security reasons." •ITAR definition: (Part 120.11) •Public Domain: means information which is published and which is generally accessible or available to the public ...(8) through fundamental research in science and engineering at accredited institutions of higher learning in the U.S. where the resulting information is ordinarily published and shared broadly in the scientific community...

U.S. Export Control Regulations 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 •Plant Pathogens (ECCN 1C354) •Pucciniastriiformia(Pucciniaglumarum) •Rathayibactertoxicus •Genetic Elements and genetically modified organisms (ECCN 1C353) •International Traffic in Arms Regulations (ITAR) Category XIV: Toxicological Agents including Chemical, Biological Agents, and Associated Equipment

U.S. Export Control Regulations: 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)

Fundamental Research-What destroys the Fundamental Research as common exemption

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

Educational Information- common exemptions

•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