Susan Wyatt Sedwick, PhD, CRA Associate Vice President for Research and Director, Office of Sponsored Projects Export Controls and Deemed Exports

Why do we have export controls?  Protect national security  Prevent terrorism and other illicit activities  Fulfill international obligations such as treaties  Restrict exports of goods and technologies that could contribute to the military potential of our adversaries  Advance US foreign policy and economic goals  Prevent proliferation of WMD

Risks for Universities  Collaborations/discussions with professional colleagues  Sharing of data, materials or software  Taking or shipping items or transferring technology that is controlled to a foreign country  Peer review for foreign nationals from sanctioned countries  Performing defense services  Visiting scientists  Travel to foreign countries including fieldwork  Technology and materials transfer  Faculty startup companies  I-129 Export Certification

Exports/Deemed Exports  An export is a transfer of controlled technology, information, equipment, software, or provision of defense services to a foreign person/entity in the US or abroad.  An export of controlled technology to a foreign person in the US is considered a deemed export.

Deemed Exports  Giving access to controlled information/ ”technology” restricted by EAR/ITAR by a foreign person in the US is deemed to be an export. (Deemed export is not a defined term in the ITAR)  Applies to a foreign faculty, research assistants and students  Applies to visiting foreign researchers  Can apply to U.S. citizens visiting or working in a foreign country  Does not apply to U.S. Citizens, permanent residents and those with US asylum protection in the US

Exclusions  Fundamental Research Exclusion  Educational Exclusion  Public Domain/Publicly Available Information

Fundamental Research  National Security Decision Directive (NSDD) 189, National Policy on the Transfer of Scientific, Technical and Engineering Information issued 9/21/85 established national policy for controlling the flow of this information produced in federally funded fundamental research at colleges, universities and laboratories.  Reaffirmed in letter from Condoleezza Rice, Asst. to the President for Security Affairs on 11/1/01.

Fundamental Research Basic and applied research in science and engineering, the results of which ordinarily are published and shared broadly within the scientific community, as distinguished from proprietary research and from industrial development, design, production and product utilization the results of which ordinarily are restricted for proprietary or national security reasons.

Educational Exclusion Applies when the information in question consists of general scientific, mathematical or engineering principles commonly taught in universities or information that is in the public domain (ITAR) or taught in catalog courses (EAR)

Public Domain/Publicly Available  Information in the Public Domain (ITAR)  Patents available at any patent office  Conferences generally accessible to the public  Libraries  Fundamental research in science and engineering  Foreign patent applications filed after US patent has been filed

Bona fide Employee Exclusion (ITAR)  Foreign persons who are full-time regular employees of US institutions of higher education with permanent abodes in US throughout employment  Does not apply to foreign nationals from prohibited countries  Does not apply to foreign graduate students  Must be informed in writing and agree not to transfer technology to another foreign national without a license  Does not apply to defense services

Software  Software Development  Encryption  Source code  Executable code  Availability on websites  Who signs software agreements at your institution?

I-129 Petition for Nonimmigrant Worker Export Control Certification  Form submitted to Citizenship and Immigration Services for temporary workers  Certification applies to the following visa categories:  H-1B – specialty occupation workers (primarily)  H1B1 – Chile/Singapore specialty occupation workers  L-1 – Intracompany transferees (L-1A and L-1B)  O-1A – Aliens of Extraordinary Ability

Certification “Under Penalty of Perjury”  …petitioner certifies that is has reviewed the EAR and ITAR and has determined that:  A license is not required from either US DOC or USDOS to release such technology or technical data to the foreign person; or  A license is required from the US DOC and/or US DOS to release such technology or technical data to the beneficiary and the petitioner will prevent access to the controlled technology or technical data by the beneficiary until and unless the petitioner has received the required license or other authorization to release it to the beneficiary

Considerations  Risk assessment is critical  Establish screening procedures (i.e. restricted party screening, review of anticipated  Awareness of and education on the new requirement  Internal accountability  Designate responsible parties – who will sign  License considerations  Internal audit  Guidance   NACUA NOTE of February 11, 2011 V. 9 No. 5

UT Austin Screening Questions  Is the individual:  from a terrorist supporting country (Cuba, Iran, Syria, North Korea or Sudan)  allowed access to any ITAR controlled equipment or encrypted software source code?  involved in a project covered by a Technology Control Plan or known to have export controlled elements?  Involved in a project that is known to be:  Proprietary in nature;  subject to publication or dissemination restrictions;  specifically designed for a military use; or  requires approval by the sponsor of foreign nationals

Effective Export Control Compliance  Top-level commitment statement  Empowered/Institutional Official(s) responsible for compliance  Expert legal counsel  Roles and responsibilities  Written policies and procedures  Training and awareness  Self-assessment  Audit

Technology Control Plans Technology Control Plan contains the following elements:  Institutional Commitment  Commodity Jurisdiction and Classification  Physical Security Plan  Information Security Plan  Personnel Screening/Training Policy  Self-Assessment  Educational Program  Termination Provisions

Responding to Potential Violations  Remove foreign persons/foreign nationals from access  Secure the export control restricted commodity, software, technology or technical data  Submit a voluntary disclosure

Enforcement Visits  Follow university protocol  Contact Institutional Official  Cooperate with the Agent  Determine if the Security Officer has been notified, if not, direct the Agent to the Security Officer  If possible ask that any interview or discussion be conducted with Institutional Official present

Contact Information Susan Wyatt Sedwick, Ph.D., CRA Associate Vice President for Research and Director, Office of Sponsored Projects University of Texas at Austin (512)