Export Control Regulations Campus Compliance Issues for Consideration

P:\bfn\bfnbvy\powerpt\ott export.ppt Why Is Compliance Important?  Possibility of Substantial Fines and Imprisonment for Violators  Civil & Criminal Penalties, for the Individual and the Institution  Limiting participation of foreign nationals in University research is not realistic and contrary to policy

P:\bfn\bfnbvy\powerpt\ott export.ppt Law and Regulations Commerce Department State DepartmentTreasury Department Export Administration Act Arms Export Control Act Trading with the Enemy Act, Int’l Emergency Economic Powers Act, & Others Export Administration Regulations (“EAR”) 15 C.F.R. Parts International Traffic in Arms Regulations (“ITAR”) 22 C.F.R. Parts Iraq Sanctions Regulations, Terrorism Sanctions Regulations, & Others 31 C.F.R. Parts Commerce Control ListU.S. Munitions ListList of Specially Designated Nationals & Blocked Persons

P:\bfn\bfnbvy\powerpt\ott export.ppt What Is an Export? ITAR , EAR 734.2(b)  An actual shipment or transmission of items subject to the EAR or ITAR (commodity, technical data, or software) out of the United States  Releasing (including oral or visual disclosure) “technical data” or software “source code” to a “foreign person,” in the United States (“deemed export”)  “Foreign persons” is everyone other than a US citizen, a permanent resident alien, & certain ‘protected individuals’ (refugees and those with asylum); it includes any company not incorporated in the United States

P:\bfn\bfnbvy\powerpt\ott export.ppt EXAMPLES OF EXPORTS SHIPPING OUT of US  Physical Shipments or Hand Carry  Release of technical data or software in a foreign country RELEASING INFO in US  Release of Source Code to a foreign national in the US  Release of Technical Data to a foreign national in the US  Inspections of U.S. Equipment and Facilities by a Foreign National

P:\bfn\bfnbvy\powerpt\ott export.ppt Examples of Items Covered by Category 3 - Electronics CategoryExample Systems, Equip, Mass Spectrometers & Pulse Amplifiers & Components Test, Inspection, Equipment for the manufacturing of production &Prod Equip semiconductor devices or material MaterialsHetero-epitaxial materials consisting of a “substrate” having stacked epitaxially grown multiple layers of: silicon, germanium,or compounds of gallium or indium SoftwareComputer-aided design software designed for semiconductor devices or integrated circuits having any of the following: design rules or circuit verification rules, simulation of the physically laid out circuits, or lithographic processing simulators for design TechnologyTechnical data for the development of production of any of the above items

P:\bfn\bfnbvy\powerpt\ott export.ppt Examples of Items Covered by Category 1 Materials, Chem, Microorganisms, & Toxins CategoryExample Systems, Equip, Chemical Agents, including tear gas containing 1% & Componentsor less of CS or CN, except containers net wt <20grm Test, Inspection, Electrolytic cells for fluorine production with a &Prod Equip production capacity >250 g of fluorine per hour MaterialsChemical Precursors for toxic chemical agents (1C350) (Examples:Benzilic acid; sodium bifluoride) Human pathogens, zoonoses, and “toxins” (1C351) (Examples: Rickettsia rickettsii, Chlamydia psittaci) Animal pathogens (1C352 (Example:goat pox virus) Plant pathogens (1C354) (Example: Puccinia graminis) Software“Software” for process control that is specifically configured to control or initiate “production” of chemicals controlled by 1C350 TechnologyTechnical data for the development of production of any of the above items

P:\bfn\bfnbvy\powerpt\ott export.ppt What is Technical Data & Technology ITAR , EAR  ITAR defines “technical data” as  Information... required for the design, development production, manufacture, assembly, operation, repair, testing, maintenance, or modification of defense articles; Invention covered by secrecy order; and Software directly related to defense article  EAR defines “technology” as  Specific information necessary for the “development,” “production,” or “use” of a product. “Technical data” may 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.

P:\bfn\bfnbvy\powerpt\ott export.ppt What is NOT Controlled: Technical Data & Software (ITAR , EAR 772.1) What is not export controlled “technical data” or “software”?  Publicly available technical data and software  Published for sale, in libraries open to the public, or through patents available at any patent office  General scientific, mathematical, or engineering principles commonly taught in colleges and universities  Through unlimited distribution at a conference, meeting, seminar, trade show, or exhibition (provided no previous government or industry restrictions on distribution applied)  Arise during or result from fundamental research, where no restrictions on publication or access accepted  Non-technical contract or business documents

P:\bfn\bfnbvy\powerpt\ott export.ppt What is NOT Fundamental Research?  Given this definition of fundamental research, university research will not be deemed to qualify as fundamental research if  The university or research institution accepts any restrictions on the publication of the information resulting from the research, other than limited prepublication reviews by research sponsors to prevent inadvertent divulging of proprietary information provided to the research by the sponsor or to ensure that publication will not compromise patent rights of the sponsor; or  The research is Federally-funded and specific access and dissemination controls regarding the resulting information have been accepted by the university or researcher.

P:\bfn\bfnbvy\powerpt\ott export.ppt Elements of a Campus Export Compliance Plan

P:\bfn\bfnbvy\powerpt\ott export.ppt Shipping Items Out of the U.S.  Do NOT Ship Any Item Outside the U.S. without first checking the ITAR and EAR Lists to determine if the item is controlled; Secure License Approval or verify license exception PRIOR to Shipment for all controlled items  Identify knowledgeable campus ‘point of contact’  Create ‘export team’ of: mailing department; technology transfer/licensing personnel; EH&S; others?  Train MSO’s and Departmental Staff re: shipment of ‘things’  Identify projects with ‘deliverables’ to foreign countries at the proposal/award stage  Outreach to faculty in key departments

P:\bfn\bfnbvy\powerpt\ott export.ppt Keeping Contracts Free of Controls  Do NOT enter into secrecy agreements or otherwise agree to withhold results in project conducted at the University or that involve University facilities, students or staff  Train personnel who enter into UC agreements to not accept controls on access of dissemination:  Sponsored Projects  Material Management/Purchasing  Licensing In Agreements, such as Software  Others?  Train faculty on why this is important

P:\bfn\bfnbvy\powerpt\ott export.ppt Technical Data Exchange: Faculty “To Do” Actions Make sure that technical data about export controlled commodities qualifies as “public domain” (ITAR term) or “publicly available (EAR term), by any of the following means:  Published Information: in journals, books, open websites, or other media available to a community of persons interested in the subject; readily available at university libraries (See EAR 774, Supplement 1, Questions A(1) - A(6))  Published through release at open conferences and meetings  Educational Information released by instruction in catalog courses and associated teaching laboratories of the University  Fundamental Research where the resulting information is ordinarily published and shared broadly within the scientific community and where no contractual controls have been accepted

P:\bfn\bfnbvy\powerpt\ott export.ppt Technical Data Exchange: Faculty “Do Not Do” Actions  Do NOT enter into proprietary data agreements where the commercial entity includes an ‘export’ control notice, or restricts dissemination to others on the basis of nationality or citizenship.  Do NOT sign the DD2345, Militarily Critical Technical Data Agreement, as a condition of attending a conference or receiving materials from the government  Do NOT accept data from a commercial contractor that is marked “export controlled”  Review any Confidentiality/Non-Disclosure Agreements to insure that UC and you are not assuming the burden of restricting dissemination based on citizenship status or securing licenses

P:\bfn\bfnbvy\powerpt\ott export.ppt Software: Faculty “To Do” Actions  Whenever possible, make University created software, “publicly available”  If the source code of a software program is publicly available, then the machine readable code compiled from the source code is software that is publicly available and, therefore, not subject to the EAR (See EAR 774, Supplement 1, Question G(1))  The cost of reproduction and distribution may include variable and fixed allocations of overhead and normal profit for the reproduction and distribution functions but may not include recovery for development, design, or acquisition, such that the provider does not receive a fee for the inherent value of the software. (See EAR 774, Supplement 1, Question G(2))  For encryption software, the source code and corresponding object code resulting from compiling such source code, may be posted on the internet where it may be downloaded by anyone, as long as Commerce is notified of the internet location or is provided a copy of the source code (See EAR, Part )

P:\bfn\bfnbvy\powerpt\ott export.ppt Software: Faculty & Admin “Don’t Do” Actions  Do not agree to software license restrictions on  access to or use of the software by nationals of certain countries, particularly those from Country Group D  restrictions on dissemination of the ‘direct product’ of the software  ask the software provider to identify the ECNN number that controls the software, and research the applicability of control, given the possibility that the software provider is being overly cautious and the software is not, in fact, controlled

P:\bfn\bfnbvy\powerpt\ott export.ppt What can you take with you overseas? Exception TMP: “Tools of Trade”  Usual and reasonable kinds and quantities of tools of trade (commodities and software) for use by the exporter or employees of the exporter in a lawful enterprise  The tools of trade must remain under the effective control of the exporter or the exporter’s employee (retain physical possession of the item, locked in hotel safe, or guarded)  Encryption commodities and software may be pre-loaded on a laptop, handheld device or other computer or equipment  All tools of trade may accompany the individual departing from the US or may be shipped unaccompanied within one month before the individual’s departure from the US, or at any time after departure

P:\bfn\bfnbvy\powerpt\ott export.ppt License Exception TMP Temporary: “Tools of Trade”  All commodities and software, if not consumed or destroyed in the normal course of authorized temporary use abroad, be returned as soon as practicable but no later than one year after the date of export  No tools of the trade may be taken to Cuba or Sudan  Reference 15 CFR Part 740.9(a)(2)(i) for TMP “Tools of Trade” License Exception

P:\bfn\bfnbvy\powerpt\ott export.ppt  Do NOT travel to Cuba, Iran, Iraq, Libya North Korea, Sudan,or Syria, for research or educational activities without first contacting the campus VC- Research to secure a license from the Office of Foreign Assets Control. These are embargoed countries. A general license for Cuba may cover you; all other countries require a specific license. Research in Embargoed Countries

P:\bfn\bfnbvy\powerpt\ott export.ppt Faculty: Getting the Message to Those that Need It?  Deans, Departments, ORU: Who needs to know?  Faculty Committees?  Other?  Written Materials; Web Site; What?