1. Where Innovation Is Tradition EXPORT CONTROL BASICS George Mason University Office of Research Integrity & Assurance (ORIA) Fall Semester 2014

2. Where Innovation Is Tradition Why does export compliance matter to me?  Mason’s 2014-24 Strategic Plan calls for the elevation of research and enhancement of standards of scholarship across disciplines.  Mason is striving to achieve the Carnegie Very High Research classification.  DoD/NASA research is an important component of this planned expansion and requires an understanding of export compliance.  Even if you are proposing fundamental research, recent changes to federal regulations require a new approach to proposals and contracting.

3. Where Innovation Is Tradition When do export controls apply to research? The following list of questions is designed to help you determine if export controls may apply to your research: 1.Does the research involve military, weapons, defense, chemical or biological weapons, encryption technology & software, space or other dual-use items or export restricted technologies? 2.Does the research involve collaboration with foreign colleagues (including graduate students) either here at Mason or abroad? 3.Does the research involve the transfer or shipment of equipment, materials or funding out of the United States? 4.Does any part of the research take place outside of the United States (e.g., field work)?

4. Where Innovation Is Tradition When do export controls apply to research? 5.Does any part of the research involve the receipt or use of export controlled items, software, or information provided by a third party? 6.Are there any contractual restrictions on publication, access to, or dissemination of the research results? 7.Does the research involve the shipment or transfer of materials or money, or any other type of collaboration with foreign nationals from a sanctioned country (i.e., Cuba, Iran, N. Korea, Sudan, or Syria) or a person listed on the SDN list? 8.Do you have any reason to believe that the end-user or the intended end-use of the item or information violates any existing export controls?

5. Where Innovation Is Tradition Overview of Export Control Basics US export control laws restrict the export of certain equipment, materials, software, information, and technology. In general, restrictions apply to:  Military/Defense/Intelligence Capabilities  Information Security or Encryption  Aviation or Avionics  Satellite, Rocket or Missile Technology  Biologics, Toxins and Chemicals  Nuclear Technology or Materials  Radar or Sonar Technology  Dual use items (for civil and military use)  ALL TRANSACTIONS with sanctioned countries Export controls apply to all international university activities, not just federal sponsored research projects involving controlled information or technology.

6. Where Innovation Is Tradition Why are export controls important to you? Following the events of 9/11, there has been a heightened level of awareness and scrutiny of all export activities with a concomitant emphasis on enforcement.  Federal agencies are increasingly focused on universities and their compliance with export regulations (Professor Roth case).  Non-compliance with export regulations can lead to substantial criminal and monetary penalties imposed on both individual researchers and institutions as well as denial of export privileges, loss of federal funding, and debarment.  Fines of up to $1 million per violation and prison sentences of up to 20 years per violation are possible.

7. Where Innovation Is Tradition Export Control Regulations There are 3 primary federal agencies that oversee and enforce Export Controls:  State Department: International Traffic in Arms Regulations (ITAR) – Governs military, weapons, and space related technologies  Commerce Department: Export Administration Regulations (EAR) – Governs technologies with dual uses (those with both military and commercial applications or strictly commercial applications)  Treasury Department: Office of Foreign Assets Control (OFAC) – Governs transactions with countries subject to embargo, boycott, or trade sanctions

8. Where Innovation Is Tradition What constitutes an export? An export occurs whenever materials, equipment, software, or technology is sent out of the United States.  An export can take any form, not just physical shipments, including written or oral communications, electronic or digital transmissions, hand carrying items out of the country, visual inspections or tours of facilities, or use of a service or technology for the benefit of a foreign person or entity.  If the item being released or exported is a “controlled item,” then an export license may be required before the transfer can legally occur.

9. Where Innovation Is Tradition Deemed Exports In addition to the physical transfer of items out of the country, the US government also actively regulates the release or transmission of controlled technology or information to foreign nationals within the United States (e.g., a foreign national graduate student). This is referred to as a “Deemed Export.”  Deemed exports are regulated by the same export controls as the actual transfer of items out of the United States.  Export of technical data to a foreign national in the United States is “deemed” an export to that person’s home country.  If a foreign person has access to a database, even for maintenance or repair purposes (which is often the case at Mason), then it cannot contain export-controlled data.

10. Where Innovation Is Tradition Definition of US Person US persons are:  US Citizens  Permanent resident aliens of the United States (i.e., green card holders)  In the United States with refugee or asylum status US persons are those businesses and organizations that are incorporated or organized to do business in the United States.

11. Where Innovation Is Tradition Treatment of University Research The vast majority of RESEARCH conducted at universities is exempt from export controls under three exclusions found separately in the ITAR and the EAR:  Public domain/publicly available exclusions  Fundamental research exclusions  Educational information exclusions Although most university research is exempt from export controls under these exclusions, Mason must meet the specific definitions found in the relevant regulations. Unlike some universities, Mason does accept research which is subject to export controls!

12. Where Innovation Is Tradition Fundamental Research Exclusion  Applies to any basic or applied research in science or engineering at accredited institutions of higher learning in the United States where the resulting information is ordinarily published and broadly shared in the scientific community.  Does not apply to research if publication of the results is restricted for proprietary reasons or specific US government access and dissemination controls. There cannot be any restrictions on publication or dissemination to foreign persons!  The fundamental research exclusion only covers the results of research. It does not cover actual materials, items or technologies used in the research. It also does not cover hardware, software, or any physical items. Export controls may still apply to these items.

13. Where Innovation Is Tradition Educational Information Exclusion  Covers information concerning general scientific, mathematical, or engineering principles commonly taught in schools, colleges, and universities or information in the public domain.  Information that qualifies as “educational information” is not subject to export controls and no export license is required to share information with foreign nationals in the United States or abroad.

14. Where Innovation Is Tradition EAR Publicly Available Exclusion Information is “published” when it becomes generally accessible to the interested public in any form, including:  Periodicals, books, print, electronic, or any other media available for general distribution  Ready availability at libraries  Patents and open (published) patent applications available at any patent office  Release at open conference, meeting, seminar, or other open gathering  Software and electronic information freely accessible to the public (except ECCN 5D002/encryption)

15. Where Innovation Is Tradition ITAR Public Domain Exclusion Information which is published and generally accessible or available to the public:  Through sales at newsstands and bookstores;  Through subscriptions which are available without restriction;  Through second class mailing privileges;  At libraries open to the public;  Through patents available at any patent office;  Through unlimited distribution at a conference, meeting, seminar, trade show or exhibition, generally accessible to the public, in the United States;  Through public release (i.e., unlimited distribution) in any form (e.g., not necessarily in published form) after approval by the cognizant U.S. government department or agency (see also §125.4(b)(13) of this subchapter)

16. Where Innovation Is Tradition Economic Embargoes  The United States currently maintains broad-based economic embargoes against: Cuba, Iran, North Korea, Sudan, and Syria  These embargoes are not identical, but generally restrict ALL TRANSACTIONS with these countries  For example, a US person cannot : Sell pencils to Iran, or Travel to Cuba without a license (may be general or specific)  Informational materials exemption applies Includes publications, films, posters, phonographs, microfilms, microfiche, tapes, compact disks, CD ROMS, artworks, and wire feeds Materials must already be in existence and cannot be created to send to a sanctioned countr y  Mason Policies: Travel policy requires ORIA approval prior to travel to any sanctioned country No Mason laptop may be taken to a sanctioned country VPN access is not permitted from sanctioned countrie s

17. Where Innovation Is Tradition End User/End Use Restrictions  Exports to certain end uses or end users may require a license.  Primary reason – support of US policy of nonproliferation of nuclear, missile, chemical, and biological weapons and US antiterrorism policy.  Consult the restrictive lists published by US government export agencies: the Commerce Department maintains a Denied Parties List and an Entities List (15 C.F.R. 744, 764) (different license requirements for different parties); the Treasury Department maintains a Specially Designated Nationals List; and the State Department maintains a list of Debarred Parties.  Visual Compliance checks all of these lists and more.

18. Where Innovation Is Tradition Specially Designated Nationals  Cannot enter into transactions with persons designated as SDNs or entities that are owned or controlled by SDNs (“know your customer” requirement)  SDN list published on OFAC website (http://www.treas.gov/offices/enforcement/ofac/sdn/)http://www.treas.gov/offices/enforcement/ofac/sdn/  SDN funds that come under control of US persons must be blocked and held in interest-bearing accounts.  SDN compliance issues: Designations in friendly third-countries and increasingly in the US Increased Focus on Anti-Terrorism and WMD Continued difficulties with resolving false hits

19. Where Innovation Is Tradition Export Licenses An Export License is a document issued by the US government granting you the right to export a specific product, technology, or software to a specific country under a set of defined conditions. Whether your research will require a license is driven by:  The nature of the item or information;  Any underlying contract or grant;  Where the information or item is going;  To whom the information or item is going; and  How it will be utilized by the end-user.

20. Where Innovation Is Tradition Export Control Reform  A major goal of the Obama administration Focus our resources on the threats that matter most Help us work more effectively with our allies in the field Bring transparency and coherence to a field of regulation which has long been lacking both  Moving certain defense items from the USML to the CCL  Coordinating definitions between ITAR and EAR  Developmental items produced under DoD funding may be subject to the ITAR (regardless of fundamental research) unless these items are identified in the relevant DoD agreement as being developed for both civil and military applications. If you are applying for DoD funding and believe that the items have both civil and military applications, you should explicitly include this in your statement of work.

21. Where Innovation Is Tradition New DFARs Clauses Biggest impact at Mason are new DFARS clauses:  Revised 252.204-7000 clause: Contracting Officer must scope and negotiate fundamental research in writing; used to be able to drop a clause; may increase the number of export-controlled projects.  New 252.204-7012 clause: Creates significant new IT security and cyber incident reporting requirements.

22. Where Innovation Is Tradition How do I help ensure compliance?  Review your research for potential export control or economic sanctions issues. If your work may be subject to export controls or economic sanctions, contact ORIA as early as possible (obtaining a license can take 1 to 12 months).  If you are planning to review or use export-controlled information or technology from outside the University, contact ORIA to ensure a technology control plan is in place.  If you are planning to hire a foreign national or will be working with foreign collaborators on export-controlled research, you must determine if an export license is required. If required, the license must be obtained before work can proceed.  If you will be traveling internationally, request a “clean” laptop from the Patriot Computers loaner program.  If you will be engaging in any transaction involving a sanctioned country, contact ORIA to determine compliance requirements.

23. Where Innovation Is Tradition How do I help ensure compliance? If your research involves export-controlled items/information:  Contact the Office of Sponsored Programs to ensure that all publication and access restrictions are negotiated appropriately to preserve the fundamental research exclusion, if desired.  Before hiring or involving a foreign national in research involving export-controlled items, you will be required to develop a plan for securing the information and controlling access by foreign nationals.  Before traveling abroad, contact ORIA for special restrictions on traveling with export-controlled items/information.

24. Where Innovation Is Tradition How do I help ensure compliance? If your research involves export-controlled items/information:  When shipping export-controlled items outside the United States, please contact ORIA for any export compliance review. Include the appropriate licensing information (e.g., license number, license exception symbol, or No License Required) on all export documents.  Maintain original records of all export documents for five (5) years.  Continue to follow any access or control provisions throughout the life of the project and beyond (as required).

25. Where Innovation Is Tradition Export Compliance Checklist Seek export compliance advice when:  Traveling overseas on Mason business (e.g., conferences, field work)  Collaborating with foreign nationals (here or abroad)  Allowing participation of foreign nationals in research  Offering visits or tours of research facilities to foreign nationals  Entering into transactions involving sanctioned countries or entities (e.g., subcontracting sponsored research)  Sponsoring scholars from sanctioned countries  Providing services (e.g., consulting or training) to foreign persons (here or abroad) or to problematic end users, especially from a sanctioned country  Shipping items out of the United States (including project deliverables)  Establishing or working with international joint ventures  Carrying data on university laptops outside the United States

26. Where Innovation Is Tradition Getting Help Determining when an export license is required can be challenging. Mason’s Office of Research Integrity & Assurance is here to help you navigate the regulations to ensure compliance with these laws. Shannon MacMichael Director of Export Compliance and Secure Research (703) 993-2308 smacmich@gmu.edu http://oria.gmu.edu/export-control/

27. Where Innovation Is Tradition Legal References Exclusions applicable to universities:  Public domain/public available exclusions: 22 CFR §§120.10 and 120.11 (ITAR); 15 CFR §§ 734.3(b) and 734.7 (EAR)  Fundamental research exclusions: 22 CFR §§ 120.10 and 120.11 (ITAR); 15 CFR §§ 734.3(b)(3) and 734.8 (EAR)  Educational information exclusions: 22 CFR § 120.10 (ITAR); 15 CFR §§ 734.3(b) and 734.9 (EAR)