Presentation on theme: "Virginia tech | Office of Export and Secure Research Compliance"— Presentation transcript:
1Virginia tech | Office of Export and Secure Research Compliance 4/13/2017August 25, 2010Export ComplianceJennifer P. May, J.D.Associate Director of ComplianceMU Office of Research
2Learning Objectives The Agencies: Who Sets the Rules? The Definitions: Who and What is Impacted?The Rules: What is Controlled?The Exclusions: Who and What is Not Impacted?The Research: How do we Protect this Work?The Enforcement: What Happens if we Break a Rule?The Rest: What else should we consider?
3We need to comply because… Growing foreign national employee and student populations involved in technology-related researchGrowing portfolio of defense-related research, both with government and industry sponsorsincreasing contractual restrictions on researchGrowing portfolio of international collaborationsFailure to comply with U.S. export and sanction laws can result in severe penalties
5U.S. Department of State Directorate of Defense Trade Controls International Traffic in Arms Regulations (ITAR)U.S. Munitions ListDefense ArticlesDefense ItemsTechnical Data about defense itemsDefense ServicesControls exports and temporary imports* for purposes of:U.S. national strategic objectivesDefense trade policiesArms embargoesTerrorism sanctions*The ATF controls permanent import of munitions
6U.S. Department of Commerce Bureau of Industry and Security Export Administration Regulations (EAR)Commerce Control List“Dual use” items and technologiesCommerce also houses:Patent and Trademark OfficePatents, trademarks, copyrightsBureau of the CensusTrade statistics
7Foreign Assets Control Regulations (FACR) Financial transactions U.S. Department of the Treasury Office of Foreign Assets ControlForeign Assets Control Regulations (FACR)Financial transactionsExportation or importation of goods and servicesBlocked propertyFor the purposes of:U.S. foreign policy goalsU.S. national security goalsEconomic and Trade SanctionsTargeted foreign countriesTerroristsInternational narcotics traffickersWMD proliferation activities
8U.S. Department of Energy Nuclear Regulatory Commission Export and Import of Nuclear Equipment and Materials Regulations (EINEMR)Nuclear equipment or material such as reactorsAssistance to Foreign Atomic Energy Activities Regulations (AFAEAR)Activities or training, directly or indirectly, involving nuclear technologyOther nuclear-related commodities and technology are under the export licensing authority of the Department of Commerce
9Disclosure of Information DFAR 252.204-7000 (Dec 1991) The Contractor shall not release to anyone outside the Contractor’s organization any unclassified information, regardless of medium (e.g., film, tape, document) pertaining to any part of this contract or any program related to this contract, unless—The Contracting Officer has given prior written approval; orThe information is otherwise in the public domain before the date of releaseRequests for approval shall identify the specific information to be released, the medium to be used, and the purpose of the release. The Contractor shall submit its request to the Contracting Officer at least 45 days before the proposed date for release.
10Export-Controlled Items DFAR 252.204-7008 (Apr 2010) The Contractor shall comply with all applicable laws and regulations regarding export-controlled items, including, but not limited to, the requirement for contractors to register with the Department of State in accordance with the ITAR. The Contractor shall consult with the Department of State regarding any questions relating to compliance with the ITAR and shall consult with the Department of Commerce regarding any questions relating to compliance with the EAR.The Contractor's responsibility to comply with all applicable laws and regulations regarding export-controlled items exists independent of, and is not established or limited by, the information provided by this clause. …The Contractor shall include the substance of this clause, … in all subcontracts. items.
11Export-Controlled Items DFAR 252.204-7008 (Apr 2010) from the federal register notice…“The clause puts all contractors, including universities performing contracts for fundamental research only, on notice that they are responsible for complying with all applicable export control laws and regulations.”
13Key Definitions: Export Sending or taking a tangible item outside of the U.S.Sending from one foreign country to another (aka ‘re-export) items or technology of U.S. origin (including some foreign- made items that incorporate U.S.-origin components or technology)Disclosing (including oral or visual disclosure) technical data, technology, or source code to a non-U.S. Person, in the U.S. or abroadProviding technical assistance, training, or defense services to a non-U.S. Person, whether in the United States or abroad22 CFR § and 15 CFR § 734.2
14Key Definitions: U.S. Person Persons who are permitted to access export controlled items without restrictions:U.S. CitizensAliens who are “Lawful Permanent Residents”Green Card holders*Other “Protected Individuals”*designated an asylee or refugeea temporary resident under amnesty provisionsAny entity incorporated to do business in the U.S.8 USC§1101(a)(20) and 8 USC§1324b(a)(3)
15Key Definitions: Foreign Person “Foreign Person” means everyone not a U.S. PersonAny foreign interest and any US Person effectively owned or controlled by a foreign interestIncludes foreign businesses not incorporated in the U.S. and persons representing other Foreign PersonsIncludes: H-1B Work Visa, F1 Study Visa, J1 Training Visa, E1 Investors Visa, TN Work Visa, L1 Intra-Company Transfer Visa, K and V Fiancée VisasEAR does not use the term foreign person, but rather foreign national – definition is the same as above
17Regulations International Traffic in Arms Regulations (ITAR) Export Administration Regulations (EAR)Office of Foreign Assets Control (OFAC) Sanctions ProgramsEAR and ITAR sanctions
18ITAR: U.S. Munitions List I – Firearms II – Artillery Projectors III – Ammunition IV – Launch Vehicles, etc... V – Explosives, Propellants, Incendiary Agents and Their Constituents VI – Vessels of War and Special Naval Equipment VII -Tanks and Military Vehicles VIII – Aircraft and Associated Equipment IX – Military Training Equipment X – Protective Personnel Equipment XI – Military Electronics XII – Fire Control, Range Finder, Optical and Guidance and Control EquipmentXIII – Auxiliary Military EquipmentXIV – Toxicological Agents and Equipment and Radiological EquipmentXV – Spacecraft Systems and Associated EquipmentXVI – Nuclear Weapons Design and Related EquipmentXVII – Classified Articles, Technical Data and Defense Services Not Otherwise EnumeratedXVIII – Directed Energy WeaponsXIX – ReservedXX – Submersible Vessels, Oceanographic and Associated EquipmentXXI – Miscellaneous Articles22 CFR §121
19ITAR: Exports Determination Export of U.S. Munitions List Items and Technologies restricted to all destinations.Very few, narrow exemptions or exceptions
20ITAR: Defense Article/Technical Data Any item or technical data designated on the U.S. Munitions ListTechnical DataInformation required for the design, development, production, manufacture, assembly, operation, repair, testing, maintenance OR modification of defense articlesDoes NOT Include:information in the public domain, orinformation concerning general scientific, mathematical or engineering principles commonly taught in schools, colleges and universities, orbasic marketing information on function or purpose or general system descriptions of defense articles22 CFR§120.6 and
21ITAR: Defense Services (1) “The furnishing of assistance (including training) to foreign persons, whether in the United States or abroad in the design, development, engineering, manufacture, production, assembly, testing, repair, maintenance, modification, operation, demilitarization, destruction, processing or use of defense articles;” or (2) “The furnishing to foreign persons of any technical data controlled under this subchapter (see § ), whether in the United States or abroad.” (3) “Military training of foreign units and forces, regular and irregular, including formal or informal instruction of foreign persons in the United States or abroad or by correspondence courses, technical, educational, or information publications and media of all kinds, training aid, orientation, training exercise, and military advice.”22 CFR§120.9
22EAR: Commerce Control List Categories0- Nuclear Materials, Facilities & Equipment & Miscellaneous1- Materials, Chemicals, Micro-organisms and Toxins2- Materials Processing3- Electronics Design, Development and Production4- Computers5- Telecommunications & Information Security6- Sensors and Lasers7- Navigation and Avionics8- Marine (ships & vessels)9- Propulsion Systems, Space Vehicles and Related Equipment
23EAR: Exports Determination Export Control Classification Number (ECCN)Technical performance characteristicsType of controlEnd userincluding nationalityEnd use
24Export can occur in the United States or abroad. EAR: “Deemed” ExportAny release of technology or source code subject to the EAR to a foreign national within the U.S or abroad.Such release shall be “deemed” to be an export to the country or countries of origin of the foreign national.Export can occur in the United States or abroad.15 CFR§734.2(b)
25EAR: TechnologySpecific information (or source code) necessary for the “development”, “production”, or “use” of a product listed on the Commerce Control ListEARUse: Operation, installation (including on-site installation), maintenance (checking), repair, overhaul and refurbishing of controlled itemsITARUse: Design, development, production, manufacture, assembly, operation, repair, testing, maintenance or modification of defense articles15 CFR§772
26EAR: Technical Assistance and Data may take forms such as instruction, skills training, working knowledge, consulting services.Technical Datamay take forms such as blueprints, plans, diagrams, models, formulae, tables, engineering designs and specifications, manuals and instructions written or recorded on other media or devices such as disk, tape, read-only memories.15 CFR§772
27OFAC: What is a Sanctioned Transaction? Importation or exportation of goods or services of value to a sanctioned country, entity, or specially designated national.Engaging in a financial transaction with a sanctioned country, entity, or specially designated national.Travel to sanctioned countriesSanctioned transactions generally do not apply to activities with foreign nationals from sanctioned countries lawfully admitted to the US
28OFAC: Sanctioned Countries List Based SanctionsBalkansBelarusBurmaCote D’IvoireDemocratic Republic of CongoIraqLebanonLiberia: Former Liberian Regime of Charles TaylorSomaliaZimbabweAnti-TerrorismDiamond TradingCounter Narcotics TraffickingNon-ProliferationComprehensive SanctionsCubaIranSudanNorth KoreaSyria
29Other Restricted Parties Lists In addition to export and sanctioned countries, there are also restricted entities and individuals:Department of Commerce Denied Persons [BIS]Department of Commerce Entity List [BIS]Department of Commerce "Unverified" List [BIS]U.S. Treasury Department Specially Designated Nationals and Blocked Persons, including Cuba and Merchant Vessels, Iran, Iraq and Merchant Vessels, Sudan Blocked Vessels [OFAC]Department of State Designated Terrorist OrganizationsDepartment of State Terrorist Exclusion List (TEL)
30Other Countries of Concern STATE (ITAR 126.1)Policy of Denial: Belarus, Burma, China, Cuba, Eritrea, Iran, Lebanon, Liberia, North Korea, Sierra Leon, Sudan, Syria, VenezuelaCase-by-case Review: Afghanistan, Democratic Republic of the Congo, Haiti, Iraq, Libya, Vietnam, Somalia, and Sri Lanka
32Higher Learning Exclusions Virginia tech | Office of Export and Secure Research ComplianceFebruary 15, 2011Higher Learning ExclusionsMany university activities and research projects are NOT subject to export controls/ foreign national restrictions due to regulatory exclusions:Public Domain InformationEducational informationBona fide EmployeeFundamental research
33Public Domain or Publically Available Information Materials available in newspapers and libraries, presented at publicly available conferences, trade showsWebsites accessible to the public for free and without the host’s knowledge or control of who visits22 CFR § and 15 CFR §734.7
34Educational Information General science, math, and engineering commonly taught at schools and universities (ITAR)Information conveyed in courses listed in course catalogues and in their associated teaching labs of any academic institution (EAR)22 CFR § and 15 CFR §734.9
35“Bona fide Employees” (ITAR only) No license is required to share covered technical data with a foreign national whoIs not a national of certain countries;Is a full-time, bona fide MU employee;Has a permanent address in the US while employed; andIs advised in writing not to share covered technical data with any foreign nationals.NOTE: this does not apply to post-doctoral appointees or graduate/undergraduate students!22 CFR §125.4(b)(10)
36Fundamental ResearchBasic or applied research at an accredited institution of higher learning in the U.S.No publication restrictionsIf federally funded, no access or dissemination restrictions on resultsAs long as the above conditions are met, the results of your research are not subject to ITAR/EAR restrictions even if the subject area of the research appears on the USML or CCL.15 CFR §§734.2, 8 & 11 , CFR 22 CFR § a.8, and a.1
37I’m confused… Not all “exports” are controlled Information in the Public Domain is “uncontrolled” and is eligible for unrestricted disseminationInformation subject to Export Control is restricted for disseminationMay require a license, orMay be eligible for a license exception or exemption
39Conducting Restricted Research Student ParticipationTechnology Control PlanPhysical and Information SecurityPersonnel Screening and TrainingProject Close-Out
40Student Participation in Restricted Research MU Graduate School Policy Virginia tech | Office of Export and Secure Research ComplianceFebruary 15, 2011Student Participation in Restricted Research MU Graduate School PolicyResearch Must Be Open to Public DisclosureStudents are prohibited from using research (data, results, methods or other content) in their theses or dissertations that could restrict subsequent publication or public disclosure of these documents. Examples of restricted information include classified or proprietary materials.It is important to note that these restrictions do not apply to nonthesis or nondissertation research that is approved by the student's adviser and allowed by University of Missouri policies. Questions regarding the applicability of this policy to thesis or dissertation content should be referred to the Graduate School.
41Technology Control Plan Institutional CommitmentCommodity Jurisdiction and ClassificationPhysical Security PlanInformation Security PlanPersonnel Screening ProceduresProject Completion RequirementsAnnual Self-assessment Certification
42Physical and Information Security Minimum “one lock” principle for securing controlled itemsRestricted work area – prevent visual and oral disclosure, key control, custodian services escortsStorage and MarkingComputer, Data Storage and TransmissionEncryption or Password Protection, recommend at least 12 characters including #s & special characters
43Personnel Screening and Training All personnel with access to controlled items:are screened for nationality and restricted party listsare required to attend export trainingIncludes graduate students, undergraduate students, technicians, and IT managersScreening must include:subcontractorsconsultantsinternational suppliers
44Project CloseoutCloseout procedures for destruction or returning of items to sponsorPost-award monitoring of award activity (adding personnel, change in SOW, etc.)
46Penalties for Violations ITAR (Defense-related)Criminal Fines: up to $1M and 20 years in prisonCivil Fines: up to $500K and ForfeituresDebarment/Loss of Federal FundingEAR/FACR (Dual-Use / Sanctions)Denial of export privilegesDebarmentCivil Fines: up to $250K or 5X value of exportsPenalties can apply to you (as an individual) and to the university!
47Enforcement Actions ITAR EAR Classified Professor sentenced to 4 yrs in prisonUniversity currently under criminal investigation1 CY08 university directed disclosure10 CY09 university voluntary disclosuresEARUniversity nearing settlement over EAR99 violations with Chinese entityClassifiedUniversity currently under investigation for classified material spillage
48J. Reece Roth Emeritus Professor of Electrical and Computer Engineering University of Tennessee Sentenced to 4 years in prison for “illegally exporting military technical information relating to plasma technology designed to be deployed on the wings of drones operating as a weapons or surveillance systems.”Evidence included exports of technical data to foreign national graduate students in his lab.Monday, October 3, 2011 – U.S. Supreme Court denied certiorari.
50ShippingAny item valued at $2500 or greater may require an Electronic Export Information submission to the Bureau of CensusMany items require export licenses or other government approvals to ship outside of the USConsult your Office of Research prior to shipping or taking UMSL property outside of the United States
51Travel Commerce and State have regulations that affect: Physically taking items with you on a trip such asLaptopsEncryption products on your laptopData/technologyBlueprints, drawings, schematicsSupplying certain technologies/data at a “closed” conference or meetingNote-taking not allowedNot open to all technically qualified members of the public
52TravelThe Office of Foreign Assets Control (OFAC) has regulations that affect:Money transactions and the exchange of goods and services in certain countries – providing “value”Travel to sanctioned countriesDoing business with certain people or entitiesCommerce, State, and OFAC have “lists”
53TravelA license could be required depending on what you are taking and the country you are traveling toA license or technical assistance agreement would be required if you were providing a “defense service” to a foreign personA defense service means the furnishing of assistance (including training) to a foreign person relative to a defense article. It also includes furnishing any technical data relative to a defense article.There are consequences if you violate the regulations!
54TravelIn most cases, if you need to work abroad, a license exception or exemption is available!EAR: “TMP” or “BAG”An exception/exemption is not needed if you are taking a “clean” laptop to countries other than Cuba, Syria, Iran, North Korea, or SudanItems, software should be evaluated before travelConsider reviewing State Department advisories prior to travel for information on your destination.