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Export Control

NUramp
by

Sara Conrad

on 29 April 2010

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Transcript of Export Control

What are Export Controls? U.S. government regulations that govern the export and sharing of information of strategic technologies, equipment, hardware, software or providing technical assistance to Foreign Persons Restrictions on shipments
Restrictions on financial transactions
Key: disclosure of ‘technology’ disclosure of technology The government controls certain technologies that it considers to be strategically important for:
National Security Reasons
Nuclear Non-Proliferation Reasons
Missile Technology Controls
Anti-Terrorism
Chemical & Biological Controls
Regional Stability
Crime Control Measures
Anti-boycott Reasons
Why do we have Export Controls? Many items have dual-uses
For example, encryption technology of a computer program could be used to encrypt technical data that has military implications. Why would UNL care? Who oversees Export Control Regulations? Department of Commerce Department of State Department of Treasury EAR U.S. Department of Commerce
Export Administration Regulations (EAR)
Dual-use technologies
Huh? Primarily civilian uses but could also have military applications

Example:
high performance computers and encryption software

Determined on a country-by-country basis
Unlawful to export technical data out of the US or to disclose technical data in or outside the US to foreign persons of countries for which a license is required.

Commerce Control List (CCL) U.S. Department of State
International Traffic in Arms Regulations (ITAR)
Military technology ITAR Equipment, technologies and technical data that are primarily military in nature
Example:
Surface Chemistry of coatings for missile technologies

Unlawful under the ITAR to send controlled technical data to any foreign persons outside the United States or to disclose this information while in the U.S.
Also includes items that started out as having civil application but were later adapted or modified for military application.

U.S. Munitions List (USML) OFAC U.S. Department of Treasury
Office of Foreign Assests Control
Economic sanctions Trade sanctions, embargoes, restrictions on transfers to certain end-users, terrorism, anti-narcotics

Example: Cuba, Iran
Others... What is NOT controlled? Publicly available information Commonly taught principles Conferences, meetings, seminars, trade shows, or exhibitions Results from fundamental research where no restrictions on publication or access applied
Non-technical contract or business documents
Basic marketing information and general system descriptions
Export Control Regulations Fundamental Research Exclusion Fundamental research:
Research taking place in:

“Accredited Universities of higher learning conducting basic and applied research the results of which are intended to be published . . . and are not subject to access or publication restrictions.”

NOT restricted for proprietary reasons or are subject to government access or dissemination controls
Physical exports of hardware and technology
Technical exchanges occurring outside of the U.S.
Dealings with Prohibited Parties or Entities
Transactions involving Embargoed-Sanctioned Countries
It does not cover everything… Will not qualify as fundamental research if:

Accepts any restrictions on the publication of the information resulting from the research; or

Federally-funded and specific access and dissemination controls regarding the resulting information have been accepted by the university or researcher.

No side deals!
Pssttt.... here are some tips Do not enter into secrecy agreements or otherwise agree to withhold results in project
Do not accept proprietary information from another that is marked “Export Controlled”.  Have Confidentiality/ Non-Disclosure Agreements reviewed .
Do not provide citizenship, nationality, or visa status information for project staff to others or include such information in proposals. 
Do not agree to background checks or other arrangements where the external sponsor screens, clears, or otherwise approves project staff. 
Do not attend meetings where foreign nationals are prohibited from attending.  Do not sign the DD2345, Militarily Critical Technical Data Agreement, as a condition of attending a conference or receiving materials from the government.
It’s the law

Security around the world has changed
Consequences of non compliance can result in negative publicity, penalties, loss of exporting privileges, fines or imprisonment
Violations can range from $250,000 to $1 million per violation
Penalties by Regulating Office
Department of State (ITAR)
Criminal: up to $1,000,000 per violation and up to 10 years in prison
Civil: seizure and forfeiture of articles, revocation of exporting privileges, fines of up to $500,000 per violation

Department of Commerce (EAR)
Criminal: up to $1,000,000 and up to 20 years in prison
Administrative: loss of export privileges, fines up to $250,000 per violation or two times the value of the export, whichever is greater, per violation

Department of Treasury (OFAC)
Criminal violations: up to $1,000,000 per violation, up to 10 years imprisonment
Civil penalties: up to $1,000,000 or 2X the value of the export per violation and revocations of exporting privileges.
Violation of specific sanctions laws may add additional penalties Pop Quiz! What are Export Controls? Export controls are U.S. government regulations that govern the export of strategic technologies, equipment, hardware, software or providing technical or financial assistance to foreign persons
What is a foreign person? A foreign person is:
Any person who is not a lawful permanent resident (green card holder) or who is not a protected individual (granted asylum, refugee, or amnesty status)
Also includes any foreign corporation, business association, partnership, trust, society or any other entity or group not incorporated or organized to do business in the U.S.
Foreign governments and international organizations
Any U.S. Person representing a foreign entity
A foreign person is also referred to as a foreign national
What is an Export? An export is the transfer of export controlled information, commodities, or software either inside the U.S. (deemed export) or outside the U.S.
Exports can occur in many ways:
Email
Mail
Agent or broker acting on your behalf – i.e., a Freight Forwarder
Face-to-face
Website
Visual inspection that reveals technical data
Conference
Hand-carried items – laptop, memory devides, PDAs
What is Technical Data? Technical Data is information required for the design, development, production, manufacture, assembly, operation, repair, testing, maintenance or modification of an export controlled item
ITAR
The information can be in the form of Blueprints, drawings, models, photographs, plans, instructions and documentation as well as technical data
Includes software related to an export controlled system
What is Technical Assistance? Technical Assistance (defense service) means the furnishing of assistance (including training) to Foreign Persons
In the United States (deemed export)
Abroad (technology transfer)
In the design, development, engineering, manufacture, production, assembly, testing, repair, maintenance, modification, operation, destruction, processing, or use of defense articles
Example
Professor is performing basic and applied research that involves a scientific instrument for a space mission.

Fundamental Research

Professor wishes to travel to China to discuss scientific instrument’s design with foreign collaborators.

Discussion will need an export license.

FRE ends at the U.S. border, “technical assistance” = exports

Scientific instrument is listed in the Munitions List (ITAR)

NOT covered under Fundamental Research Exclusion (FRE)
Now what? What do I do if my research is subject to export control regulations? Contact Us! What is a Technology Control Plan (TCP)?

A document that ensures that the transfer of technical data and defense services are safeguarded from unauthorized access and dissemination
If necessary, apply for a license for foreign nationals (~45-60 days – with no guarantees of approval)

What is an export license?

A document issued by the US government permitting a foreign national to have access to controlled information
Sign to acknowledge responsibility to this policy There are instances in which we may accept export controlled background information and still perform Fundamental Research
Requires that controlled information be appropriately safeguarded (Technology Control Plan)
Export controlled background information may not be published along with research results
Export controlled information must be removed; or
Obtain authority to publish from cognizant government agency
However, when researchers are unable to publish anything meaningful, this may result in a de facto publication restriction What is needed for a license? On-line Application
Letter of explanation
Resume
Chronological resume
VISA
Passport, I-94
Statement of Work
Proposal
Technology Control Plan
Maintain records and licenses for at least 5 years from date of export or expiration of the license, whichever occurs last Other Regulated Activities Shipping, purchasing, traveling... It all depends on 4 questions:
What are you exporting?
Where are you exporting?
Who will be receiving it?
What will it be used for?
Constantly evolving...
http://www.nature.com/news/2010/100422/full/news.2010.197.html Examples... Dual-use Institute appropriate security measures
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