UT Systemwide Compliance Academy

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Overview of U.S. Export Controls

October 26, 2011

Webinar Essentials 1. Session is currently being recorded, and will be available on our website at

http://www.utsystem.edu/compliance/SWCAcademy.html.

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Purpose

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Overview of U.S. Export Controls as applicable to colleges

and universities To create sensitivity to key concepts and critical points

Technology Control Plans

Tips on Visual Compliance

The Rationale For Export Controls

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Developed countries have a common interest in controlling

the international movement of arms, munitions, weapons of mass destruction, missile technology, nuclear reactor fuel and components, select agents, and certain advanced technologies

Export Control laws and regulations are some of the tools

used by the U.S. to comply with its international agreements and to meet its national security goals

Do Export Controls Apply to universities?

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Export control laws and regulations apply to everyone in the

U.S. and to U.S. persons anywhere in the world

Risk for Violations

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Civil penalties up to $500,000 per violation Federal felony – fines and imprisonment Debarment from federal contracting

Common Examples of Exports

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• Physical: Sending or taking equipment out of the U.S. for a research project

• Deemed Export: Discussing controlled technical data with a foreign citizen, whether in U.S. or abroad

• Electronic/Voice: Sending controlled technical data out of the U.S. by email, text, fax, etc.

Foreign Travel

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Anything you hand-carry, pack in your luggage, or have shipped

out of the U.S. is an export! There are license exemptions for “tools of trade” that cover

most items.

Common Examples of Controlled Items

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Anything with an obvious military use Anything intended for use in space, space launch, or for

ground control of space craft or satellites Nuclear reactor technology and materials Advanced composite materials Encryption software and devices Sonar, radar, LiDAR, laser, GPS, advanced computers,

advanced computer technology and software, thermal imaging cameras

Advanced electronics, components, and technology Select agents

Rule of Thumb

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Is it expensive? Is it cutting edge? Is it custom designed or built? Is it for military, space, or aerospace? Does it use or enable encryption?

If so, it is probably export controlled!

What is not controlled?

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Information and technology arising during or as a result of

Fundamental Research in science and engineering

Information presented in a catalog course (including associated teaching labs)

Information that has been published and is generally available to the public

What Exactly is “Fundamental Research”?

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• No restrictions on publication • No restrictions on the use of foreign

citizens • No specific national security

controls on the research or results

• Basic and applied research in science and engineering, the results of which ordinarily are published and shared broadly with the scientific community

Example Contract Clauses

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The following are examples of commonly encountered contract clauses in sponsored projects or grants that influence the export control classification determination

DFARS 252.204-7000 Publication Restriction

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DISCLOSURE OF INFORMATION (DEC 1991)

(a) 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—

(1) The Contracting Officer has given prior written approval; or

(2) The information is otherwise in the public domain before the date of release.

(b) Requests for approval shall identify the specific information to be released, the medium to be used, and the purpose for the release. The Contractor shall submit its request to the Contracting Officer at least 45 days before the proposed date for release.

(Emphasis Added)

Specific National Security Control

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Although the intent for the basic research is to be

unclassified, each Fellow must be able to obtain and maintain a Department of Defense security clearance…Fellows must be granted and maintain a final Secret clearance to receive program funding.

A “Follow the Law” Clause

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Subcontractor agrees to comply with all U.S. export control laws and regulations, specifically including but not limited to, the requirements of the Arms Export Control Act, 22 U.S.C. 2751-2794, including the International Traffic in Arms Regulation (ITAR), 22 C.F.R. 120 et seq.; and the Export Administration Act, 50 U.S.C. app. 2401-2420, including the Export Administration Regulations, 15 C.F.R. 730-774; including the requirement for obtaining any export license or agreement, if applicable. Without limiting the foregoing, Subcontractor agrees that it will not transfer any export controlled item, data, or services, to include transfer to foreign persons employed by or associated with, or under contract to Subcontractor or Subcontractor’s lower-tier subcontractors, without the authority of an export license, agreement, or applicable exemption or exception.

(Emphasis Added)

Academic Freedom

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Fundamental Research: No restrictions on working with foreign research assistants or collaborators – free to publish and discuss

Catalog Courses and Teaching Labs: No restrictions on information presented

• Published and Publically Available: No restrictions on working with foreign nationals using information that is published and in the public domain

Remember!

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Tangible items are always subject to control. Sending or taking equipment, devices, machines, software, or any other tangible item out of the country is an export and may require a license or license exception

U.S. and International Sanctions

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All Items Cuba, Iran, North Korea, Sudan, and Syria are subject to

comprehensive sanctions No exports to those countries Significant restrictions on collaborating with researchers in

those countries Military and Space The five countries above plus China, Burma, Venezuela, and

others are subject to sanctions that prohibit export of all military or space items and technology as well as certain commercial items and technologies

Denied Parties

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Lists of persons and organizations subject to sanctions or prohibitions

Doing business with a denied party whether in the U.S. or abroad could be a violation

Software programs can check names instantaneously – use it!

Mitigate the Risk

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If you are sending or taking equipment

(including a laptop) out of the country, assume that it is export controlled and check with the Export Control Officer

Make sure that grants and proposals are

reviewed for export control issues before PI starts work on a research project

Technology Control Plans

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If a project is not fundamental research a written plan is needed to ensure that controlled technology or technical data is not released to a foreign person

The Technology Control Plan (“TCP”) documents the plan It should be developed by the PI and reviewed and approved

by Export Controls and Information Security The project should not be approved until the TCP is in place

Elements of a TCP

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Basic information in every TCP: Identify the project (name, sponsor, account number) The personnel and citizenship of all who are allowed access The PI responsible for TCP compliance Description of the project and applicable control (EAR or

ITAR) Location(s) where the work will be performed Project start and end date Signature block for each person covered by the TCP

Elements of a TCP

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The body of the TCP Briefing on export controls Physical security Description of the secure area and means of access control Plan for marking controlled data and/or prototypes Plan to prevent foreign person access (locked office, locked storage,

address maintenance and cleaning staff)

Information security No network access, laptop control, thumb drives Encryption at rest Encrypted email Dedicated computer to the project

Elements of a TCP

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Additional elements Provision to screen additional personnel and update TCP Reference to training resources Provision for compliance assessment and audit Address project termination and data disposition

TCP Record Keeping

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Copy should be kept by PI, Export Control Officer, and in the project file

A copy should be kept for five years following project termination

Audit results should be kept in the file along with documentation of corrective actions

Project termination should be documented together with documentation of data disposition

Tips on Using Visual Compliance

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Common Issues Country Alerts for China, Cuba, Iran, Syria, Sudan, etc. Similar names – “hits” How to resolve “hits” Use of the “comments” field

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Summary on Visual Compliance

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Always fill in the “Comments” field with a note to reference your search

Full name, date of birth, and CV are very helpful Understand that you will always get a country alert for

China, Iran, Cuba, etc. Document your search (keep a copy)

The Steps for Compliance

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1. Is this Fundamental Research? • If not, a TCP may be needed

2. Will there be a physical or electronic export?

• Classify the item (EAR/ITAR) • License or license exception

3. Check End-use/end-users!

• Use the software

4. Is foreign travel involved? • Classify the items • Check for BAG or TMP exemptions

5. Document your process.

6. Trust but verify – audit!

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Questions?