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Export Control Workshop For:

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1 Export Control Workshop For:
National Council of University Research Administrators June Video Conference Todd Willis Senior Export Policy Analyst Deemed Exports and Electronic Division Bureau of Industry and Security U.S. Department of Commerce Introductory remarks Open with a story

2 Agenda Review of export controls: Deemed exports EAR
Commerce Control List (CCL) Commodity Classification Deemed exports Decision making sequence of analysis Issues: “Use” technology Export controls in the context of fundamental research Country of origin based on country of birth Licensing: Technology Control Plan

3 Export Controls Review
This is a summary of the overarching mission of BIS. BIS's regulations govern the export of most commercial items from the United States. BIS's regulations differ from the FTSR in that they are concerned with restricting exports that could be detrimental to U.S. national security, foreign policy or other economic interests. We accomplish this mission by establishing export controls and imposing license requirements for certain items. We also have the authority to enforce our regulations, so we have an law enforcement organization that also conducts outreach to companies, monitors shipments and investigates possible violations. It's no enough for the U.S. to have a strong and effective export control system We also work with other countries that might be key transit locations to help them to work to strengthen their laws and borders. Finally, we monitor exports of technologies and equipment that is needed to keep our defense capabilities strong.

4 Authority for Export Controls
Export Administration Act (EAA) of 1979, as amended International Emergency Economic Powers Act, as amended Although the Export Administration Act (EAA) expired on August 20, 2001, the Department of Commerce is acting under the authority conferred by Executive Order No of August 17, 2001, as extended by the Notice of August 7, Therein, the President, by reason of the expiration of the Act, invoked his authority, including authority under the International Emergency Economic Powers Act (IEEPA), to continue in effect the system of controls that had been maintained under the Act.

5 Export Administration Regulations (EAR)
Implement the Export Administration Act Apply to “dual-use” items Civil as well as military use Not primarily for weapons or military related use Broad jurisdiction but narrow controls The provisions in the EAR are intended to serve the national security and foreign policy interests of the United States and in some cases to carry out its international obligations. The Export Administration Act of 1979, as amended, has been in lapse since August 21, In the absence of an Export Administration Act, the U.S. dual-use export control system continues to be dependent on the President's invocation of emergency powers under the International Emergency Economic Powers Act. As demonstrated by recent events, having a modern, coherent, and effective system of dual-use export controls -- to prevent terrorists, rogue states, and proliferators of weapons of mass destruction from accessing sensitive U.S.-origin goods and technology -- is now more important than ever. The Administration supports legislation to create a streamlined and strengthened export control system that effectively promotes both U.S. national security and U.S. economic interests.

6 Department of Commerce Export Licensing Jurisdiction
Is the item subject to the Export Administration Regulations? Is the item not subject to the Export Administration Regulations? Export jurisdiction of another agency Publicly available technology De minimis “Dual-use” items include hardware, materials and associated production, development or use technologies Jurisdiction includes exports and reexports of U.S. origin items The provisions in the EAR are intended to serve the national security and foreign policy interests of the United States and in some cases to carry out its international obligations. The Export Administration Act of 1979, as amended, has been in lapse since August 21, In the absence of an Export Administration Act, the U.S. dual-use export control system continues to be dependent on the President's invocation of emergency powers under the International Emergency Economic Powers Act. As demonstrated by recent events, having a modern, coherent, and effective system of dual-use export controls -- to prevent terrorists, rogue states, and proliferators of weapons of mass destruction from accessing sensitive U.S.-origin goods and technology -- is now more important than ever. The Administration supports legislation to create a streamlined and strengthened export control system that effectively promotes both U.S. national security and U.S. economic interests.

7 Other Regulatory Agencies
U.S. Department of State - Directorate of Defense Trade Controls U.S. Department of Justice - Drug Enforcement Administration U.S. Department of Interior - Fish & Wildlife Service U.S. Department of Energy U.S. Nuclear Regulatory Commission U.S. Department of Treasury - Office of Foreign Assets Control U.S. Department of Commerce - Office of Patent & Trademarks U.S. Department of Agriculture U.S. Department of Health and Human Services - Food & Drug Administration State - licenses defense munitions and articles. Justice - narcotics and dangerous drugs Interior - endangered fish and wildlife, migratory birds, and bald and golden eagles energy - natural gas and electric power, and certain nuclear related activities by US persons NRC - nuclear equipment and materials

8 Export Control Regimes
Wassenaar Arrangement Supplement 1 to Part 743 Missile Technology Control Regime (MTCR) Supplement 1 to Part 740 (A:2) Australia Group (AG) Supplement 1 to Part 740 (A:3) Nuclear Suppliers Group (NSG) Supplement 1 to Part 740 (A:4)

9 “How is an Item Classified for Export Control Purposes?”
The Commerce Control List Export Control Classification Numbers Reasons for Control The Country Chart Classifying Items Technology & Software Controls

10 Structure of the Commerce Control List
Supplement 1 to Part 774 Alphabetical Index 10 Categories Entries (Export Control Classification Number) General Technology and Software Notes-Supplement No. 2

11 Export Control Classification Number “ECCN”
What items are controlled? Why BIS controls the product? Which destinations require a license?

12 STRUCTURE OF THE ECCN 3 A 001 3 CATEGORY A PRODUCT GROUP
001 TYPE OF CONTROL

13 Identify and Classify the Commodity:
Ten Categories (part 738.2(a)): 0-Nuclear 1-Materials, Chemical, “Microorganisms” and Toxins 2-Materials Processing (e.g. machine tools) 3-Electronics 4-Computers 5-Telecommunications and Information Security 6-Lasers and Sensors 7-Navigation and Avionics 8-Marine 9-Propulsion Systems, Space Vehicles and Related Equipment (e.g. aerospace)

14 Classify the Commodity:
Five Groups (part 738.2(b)): A - Equipment, Assemblies and Components B - Test, Inspection and Production Equipment C - Materials D - Software E - Technology

15 Numbering System 001-099 National Security 100-199 Missile Technology
Nuclear Nonproliferation Chemical & Biological Foreign Policy Short Supply/Crime Control Anti-Terrorism/United Nations

16 Reasons for Control AT = Anti-Terrorism NS = National Security
CB = Chemical & Biological Weapons CC = Crime Control EI = Encryption Items FC = Firearms Convention MT = Missile Technology NP = Nuclear Nonproliferation NS = National Security RS = Regional Stability SI = Significant Items SS = Short Supply UN = United Nations XP = High Performance Computers

17 3A292 3D292 3E292 Digital Oscilloscope Oscilloscope Software
Deemed Export ECCNs Digital Oscilloscope Analog-digital conversion, greater than 1 giga-sample per second, 8 bits or greater resolution, stores 256 or more samples 3D292 Oscilloscope Software The deemed export rule primarily affects technology and software. 3E292 Oscilloscope Technology Production, development or use technology is controlled

18 Items on the CCL, not on the CDC List
This is a summary of the overarching mission of BIS. BIS's regulations govern the export of most commercial items from the United States. BIS's regulations differ from the FTSR in that they are concerned with restricting exports that could be detrimental to U.S. national security, foreign policy or other economic interests. We accomplish this mission by establishing export controls and imposing license requirements for certain items. We also have the authority to enforce our regulations, so we have an law enforcement organization that also conducts outreach to companies, monitors shipments and investigates possible violations. It's no enough for the U.S. to have a strong and effective export control system We also work with other countries that might be key transit locations to help them to work to strengthen their laws and borders. Finally, we monitor exports of technologies and equipment that is needed to keep our defense capabilities strong.

19 CCL Viruses NOT on Select Agent Lists
Teschen disease virus Western equine encephalitis virus White pox (aka Variola) Yellow fever virus Potato Andean latent tymovirus* Potato spindle tuber viroid* Chikungunya virus Dengue fever virus Hantaan virus* Herpes virus (Aujeszky's disease) Lymphocytic choriomeningitis virus Lyssa virus

20 CCL Bacteria NOT on Select Agent Lists
Bartonella quintana Chlamydia psittaci Salmonella typhi Shigella dysenteriae Vibrio cholerae Xanthonomas albilineas Xanthonomas campestris pv. citri* Clavibacter michiganensis subsp. sepedonicus*

21 CCL Fungi NOT on Select Agent Lists
Cochliobolus miyabeanus Colletotrichum coffeanum var. virulans Microcyclus ulei Puccinia graminis Puccinia striiformis Pyricularia grisea / Piricularia grisea Pyricularia oryzae / Piricularia oryzae

22 CCL toxins & GMOs NOT on Select Agent Lists
Aflatoxin Cholera toxin HT-2 toxin Microcystin Modeccin toxin Viscum Album Lectin 1 (Viscumin) Volkensin toxin S. aureus toxins C. perfringens toxins Microorganisms/ genetic elements w pathogenicity elements from 1C351, -2, -4*

23 Deemed Exports This is a summary of the overarching mission of BIS. BIS's regulations govern the export of most commercial items from the United States. BIS's regulations differ from the FTSR in that they are concerned with restricting exports that could be detrimental to U.S. national security, foreign policy or other economic interests. We accomplish this mission by establishing export controls and imposing license requirements for certain items. We also have the authority to enforce our regulations, so we have an law enforcement organization that also conducts outreach to companies, monitors shipments and investigates possible violations. It's no enough for the U.S. to have a strong and effective export control system We also work with other countries that might be key transit locations to help them to work to strengthen their laws and borders. Finally, we monitor exports of technologies and equipment that is needed to keep our defense capabilities strong.

24 What are “Deemed Exports”
The Export Administration Regulations (EAR) define a deemed export as the release of technology or source code subject to the EAR to a foreign national in the United States. Part 734.2(b)(2)(ii). Such release is “deemed” to be an export to the home country of the foreign national. Situations that can involve release of U.S technology or software include: - Tours of laboratories - Foreign national employees involved in certain research, development, and manufacturing activities - Foreign students or scholars conducting research - Hosting of foreign scientist

25 “Deemed Export” Concerns
The deemed export program, in place since 1994, remains an important mechanism to prevent the diversion of sensitive dual use technologies to countries and end users of concern. The deemed export program balances two concerns: The vital role of foreign nationals in U.S. industry and academia, contributing to the strength of our industrial base and our high-technology advantage, and ultimately our national security; Foreign countries seek to illegally acquire controlled U.S. technology that could be diverted to the development of weapons programs.

26 Deemed Export Licensing Trends
FY06 projected total based on 1/30/06 deemed export actuals Most Common Deemed Exports: Semiconductor & Electronics - Category 3 Telecommunications - Category 5 Computer Systems - Category 4

27 Breakdown of Largest Deemed Export License Holders
Top industries and license holders: Telecommunications (33%) Semiconductor Manufacturing (29%) High Performance Computers (23%) Aerospace & Material (7%) Others (8%)

28 FY05 Licenses by Industry and Country

29 Deemed Export Statistical Summary
In FY2005, the Bureau approved 89%, returned without action approximately 10%, and denied less than 1% of the total of 707 deemed export license applications. Almost 60% of the deemed export licenses processed are for PRC foreign nationals. Followed in descending order by foreign nationals from India (6.5%), Iran (4.5%), Russia (3.7%) and UK (2.7%). Most deemed export licenses are processed in 42 days. We expect a 10-15% increase in FY06 licenses based on current volume trends and the projected licensing renewal activity.

30 Sequence of Analysis U.S. Citizens/Green Card/Protected Immigrants
Published Educational Information Patents Fundamental Research (FR) EAR 99 License Exceptions License

31 Foreign Nationals Not Subject to the Deemed Export Rule
Any foreign national is subject to the deemed export rule except: A foreign national granted U.S. citizenship; A foreign national granted permanent residence status (i.e., “Green Card” holders); A foreign national granted status as a “protected individual” under 8 U.S.C. 1324b(a)(3). Protected individuals include political refugees and political asylum holders. By “asylum holder” we mean someone who has been officially granted political asylum, not an “asylee” who may just have applied for that status.

32 Third Country Foreign National Licensing Policy
Under current export licensing policy, a foreign national’s recently established citizenship or residency is used to determine the licensing requirements. BIS intends to retain this policy. Guidance on this can be found at: By “asylum holder” we mean someone who has been officially granted political asylum, not an “asylee” who may just have applied for that status.

33 Country of Origin (Permanent Residency)
Release of controlled technology to a foreign national of one country, say India, who has obtained permanent residency in another, say the U.K., is treated as if the technology transfer were being made to the U.K. and licensing requirements would be the same as for a British national in the U.K. If the former Indian national becomes a British citizen, transfers of technology would be viewed as transfers to the U.K.

34 Home Country (Dual Citizenship)
As a general principle, a foreign national’s most recently obtained citizenship governs the licensing requirement. If an Indian foreign national becomes a citizen of the U.K. but retains Indian citizenship, the most recent citizenship is with the U.K. and releases of technology would be viewed as releases to the U.K.

35 Technology Not Subject to the EAR
Publicly available (EAR 734.7) - Generally accessible to the interested public - Periodicals, books, print, electronic other media forms - Libraries (university, public etc) - Open patents Open conferences Fundamental Research (EAR 734.8) - Basic and applied research where resulting information is ordinarily published and broadly shared within scientific community Educational information (EAR 734.9) - Released by instruction in catalog courses - Associated teaching laboratories of academic institutions Patent information (EAR ) - Public information available on patent application

36 Scope of Fundamental Research
Confusion exists over the scope of fundamental research. Some research entities believe fundamental research regulatory language provides relief from all export licensing consideration.

37 Fundamental Research Regulatory Language
EAR information resulting from fundamental research is not subject to EAR licensing requirements: “Fundamental research is basic and applied research in science and engineering where the resulting information is ordinarily published and shared broadly within the scientific community.” This definition of fundamental research is echoed in NSDD-189, Presidential Policy Directive issued by President Reagan in 1985 and is still in effect today.

38 Fundamental Research Fundamental research only applies to information that “arises during or results from” the research. There is no “blanket exemption” for all information that is transferred in the context of such research. If there is preexisting export controlled technology required to conduct the research then deemed export licensing implications must be considered.

39 Fundamental Research World of Research INPUT OUTPUT
Uncontrolled Technologies Information resulting from fundamental Research x x x x x x x x x x x Preexisting Export Controlled Technologies x x x x x x x x INPUT OUTPUT

40 Technology Control Plan (TCP)
TCPs are a standard condition found in deemed export and technology exports licenses A TCP should contain the following essential elements: - Corporate commitment to export compliance - Physical security plan - Information security plan - Personnel screening procedures - Training and awareness program - Self evaluation program TCPs are a good practice for all holders of export controlled technology When we review a Technology Control Plan, we look at the following essential elements: Corp. commitment: i.e., CEO letter to employees Physical plan: i.e., badging, visitor plan, etc. Info Security: i.e., firewalls, electronic monitoring of databases with controlled technology, intranet systems, etc Personnel screening: i.e., hiring process, non disclosure statements, visa status, labor certification process, etc. Self-eval: i.e., internal audits Another important element is how a company classifies its technology and how it integrates this classification process into its personnel screening process.

41 www.bis.doc.gov BIS Web site Licensing Deemed Exports
Process Improvements Licensing Guidance (pdf) Frequently Asked Questions


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