Lynn Titus Jr (Tye) Export Controls Administrator NDSU “Export Controls” Training Research Integrity and Compliance Office of Research and Creative Activity Lynn Titus Jr (Tye) Export Controls Administrator

NDSU Export Controls Web Site https://www. ndsu

NDSU Export Controls PowerPoints https://www.ndsu.edu/research/integrity_compliance/export_controls/

NDSU Export Controls CITI Courses “Free” https://www.citiprogram.org/ CITI offers the following export control courses (free) which discuss general and specific information to researchers. These are a great resources for faculty, post docs, and lab personnel, and they can print a certificate for each course that they complete. This is a great resource for documentation purposes for your department. Introduction to Export compliance (ID: 16800) Export Compliance for Researchers: Part I (ID: 16801) Export Compliance for Researchers: Part II (ID: 16802) Export Compliance for Research Administrators (ID: 16803) Export Compliance and Biosafety (ID: 16805) Export Compliance for Operational Departments (ID: 16806) Export Compliance for International Shipping (ID: 16807) Export Compliance and Purchasing (ID: 16808) Export Compliance and Collaboration (ID: 16810) Export Compliance and united States Sanctions Programs (ID: 16812)

“Deemed Exports” #1 Vulnerability For Most Universities

What Is A Deemed Export? A release or disclosure of technical data or source code to a foreign person inside the U.S. is “deemed” to be an export to that person’s country of citizenship and/or permanent residency Rationale: anyone in the U.S. on a temporary basis (i.e., a visa) will return to his/her home country, taking the information back In general, if you would need a license to send the technical data to that country, you need a license to release it to that person. Exceptions: EAR99 technology to persons from Cuba, Iran, etc. (NO LICENSE WILL BE ISSUED) Encryption software object code versus source code (NO LICENSE WILL BE ISSUED)

Increased Federal Focus on Universities “Deemed Exports in Research” What Export Controls Mean for Universities Increased Federal Focus on Universities No longer just corporate world Closer scrutiny on post-secondary institutions due to Research equipment, materials, and technology that is considered “controlled” The research technology being available and transferred to foreign persons.

Primary Government Agencies Department of Commerce Export Administration Regulation (EAR) Department of State International Traffic in Arms Regulations (ITAR) Department of Treasury Office of Foreign Assets Control (OFAC)

Foreign Persons can include: Who Is A Foreign Person? An individual who is not a U.S. citizen, permanent resident, or “protected person” Green card holder = U.S. person. H1B visa, TN visa, L1 visa (work visa’s) = foreign person. Foreign Persons can include: - Consultants - Customers - Contractors/subcontractors - Translators - Office and clerical personnel - Visitors (facility tours, attendance at meetings) - Employees - Foreign management, owners, etc.

When Might A “Deemed Export Occur? Employing foreign national engineers, researchers, systems administrators, designers Outsourcing research to universities Hosting vendors onsite (e.g., CNC machine tool maintenance personnel) Hosting foreign affiliate employees If you’re not careful with your data? Any time foreign people enter your facility!

Do I Need A “Deemed Export” License? INFORMATION SUBJECT TO A LICENCE? Technology/Technical data and software source Code Information “required” for the design, manufacture, production, use, etc. of a product Examples: blueprints, photographs, drawings, instruction manuals, math data, software source code (e.g., U.S. company developed software)

Do I Need A “Deemed Export” License? INFORMATION NOT SUBJECT TO A LICENCE? Public Domain information Non-Technical information

Do I Need A “Deemed Export” License? PUBLIC DOMAIN - PUBLISHED Public domain information is published and is generally accessible or available to the public: Through sales at news stands or bookstores Through subscriptions available without restriction to any individual who wishes to obtain or purchase the published Information At libraries open to the public or from which the public may obtain documents Through unlimited distribution at a conference, meeting, seminar, trade show, or exhibition generally accessible to the public Through patents available at any patent office

Do I Need A “Deemed Export” License? PUBLIC DOMAIN – FUNDAMENTAL RESEARCH Fundamental research in science and engineering at accredited institutions of higher learning in the U.S. where the resulting information is ordinarily published and shared broadly in the scientific community Research outsourced to a university Not for proprietary reasons Paid for by U.S. company? Are there publication restrictions? May not have to be published, as long as publication is the general expectation Through patents available at any patent office

Public Domain Exception Do I Need A “Deemed Export” License? Public Domain Exception Must be the same information that is published – no more Is there any value added to what was published? Example, telling someone to “read these three journal articles, and that should help solve your problem” adds value through identifying what is important/will solve the problem

Do I Need A “Deemed Export” License? Public Domain Exception - Inputs may be controlled Controlled technology or equipment may be required to do the research - Must truly be publicly available Cannot hide a copy in the basement at the local library Must be available for free or at reasonable cost for reproduction DDTC has (sort of) acknowledged that information on the internet is in the Public Domain (but not entirely)

Do I Need A “Deemed Export” License? NON-TECHNICAL INFORMATION Basic marketing information Pricing information Scheduling/availability Customer lists Basic system description

Common Compliance Questions Can I ask employees their citizenship? It is not illegal to ask citizenship in the U.S.: It is illegal to discriminate based on citizenship Complying with other laws and regulations is not discrimination, but you should have a plan in place to manage hiring processes to avoid inadvertent discrimination What if my employee gives me false documents? You are not responsible for fraud if you have reasonable procedures in place

Thank You!