“National Security” AKA “Economic Espionage” AKA “Technology Theft” AKA “Export Control” Export Control Training brought to you by: Scott Fong aka The Compliance Officer The Subcontracting Officer

1. Purpose of the Training Reason #1: Protect the UARC and the University Bad Press Loss of Exporting Privileges Organizational Civil and Criminal Penalties (lawsuits, fines up to $1 million, time in Jail) Unhappy Sponsors No More UARC → No More Jobs

1. Purpose of the Training Reason #2: Protect Yourself Personal Criminal and Civil Liabilities Criminal: Fines up to $1,000,000 and/or up to 10 years in jail (ITAR) for each violation Civil: Fines up to $500,000 for each violation

1. Purpose of the Training Reason #3: What one can do for one’s Country Following the law feels good. You can sleep better at night knowing that the FBI won’t come knocking on your door. Keeps dangerous technology out of the hands of those who would use it against the United States. Protects America’s military advantage in technological superiority. Ensures American know-how benefits American companies, employees, consumers, and economy.

1. Purpose of the Training Reason #4: Teach you to identify export concerns Intent is not to teach you how to be export control officers. Intent is to train you to identify situations when export control laws may or may not apply.

1. Purpose of the Training Reason #5: Establish the Goal of this training Our Goal today is to educate UARC staff on applicable laws, identify when project information may be export controlled, and instruct such staff to involve the UARC Compliance Officer before possible export controlled information is “exported”. [note italics]

2. What is “Controlled”? Export of certain goods, services, & information are controlled by three government agencies: U.S. Department of State Office of Defense Trade Controls (ODTC) U.S. Department of Commerce Bureau of Industry and Security (BIS) U.S. Department of the Treasury Office of Foreign Assets Control (OFAC)

International Traffic in Arms Regulation (ITAR) 2. What is “Controlled”? International Traffic in Arms Regulation (ITAR) Administered by the U.S. Department of State, Office of Defense Trade Controls Regulates the export of “defense articles” and “defense services” Defense Article: Any item or technical data* designated in U.S. Munitions List or those items: Specifically designed, developed, configured, adapted, or modified for a military application and does not have: 1) predominant civil applications, or 2) performance equivalent (form, fit, function) to an article or service used for civil applications (e.g. AA batteries). Specifically designed, developed, configured, adapted, or modified for a military application, and/OR* has significant military or intelligence applicability such that control under this subchapter is necessary. (e.g. GPS technology or Dialysis/Atomic triggers). *Technical data is “information which is required for the design, development, production, manufacture, assembly, operation, repair, testing, maintenance or modification of defense articles. This includes blueprints, drawings, photographs, plans, instructions, and documentation”.

2. What is “Controlled”? FAR Summary ITAR continued Defense Service: The furnishing of assistance or training in the design, development, engineering, manufacture, production, assembly, testing, repair, maintenance, modification, operation, demilitarization, destruction, processing, or use of Defense Articles. U.S. Munitions List – List of designated defense articles and defense services subject to ITAR export control Category XV of the U.S. Munitions List is of special concern to UARC personnel: Spacecraft Systems and Associated Equipment. FAR Summary List is not dispositive. A Commodity Jurisdiction Procedure exists to obtain a determination from the Office of Defense Trade Controls for articles or services not listed. Don’t forget the EAR and OFAC lists. When in doubt, contact your UARC Compliance Officer. For more information on ITAR, go to http://pmdtc.org/reference.htm.

2. What is “Controlled”? Export Administration Regulations (EAR) Administered by the U.S. Department of Commerce, Bureau of Industry and Security (BIS) Regulates the export of “dual-use items” and items with solely civil uses. Items subject to EAR are listed in the Commerce Control List (CCL) 10 categories of export controlled items in the CCL: Nuclear Materials, Facilities, & Equipment and Miscellaneous Materials, Chemicals, Microorganisms & Toxins Materials Processing Electronics Design, Development and Production Computers Telecommunications & Information Security (encryption) Sensors and Lasers Navigation and Avionics Marine Propulsion Systems, Space Vehicles and Related Equipment.

2. What is “Controlled”? EAR cont. The 10 CCL categories are further subdivided into 5 Product Groups: Systems, Equipment and Components Test, Inspection and Production Equipment Materials Software Technology Example: Computers are a category in the Commerce Control List. Computer exports are regulated on several levels, called Product Groups, by the EAR. It might be possible to export a Dell computer system for example (i.e. product groups A, C, and D), but not possible to export instructions/technical data on how to fabricate the computer and its parts (product group E), or the equipment necessary to manufacture or test the computer (product group B).

2. What is “Controlled”? EAR Summary EAR Cont. EAR Summary All items of US origin or design, regardless of actual geographical location, is subject to the EAR unless there is a listed exclusion, or item is subject to the jurisdiction of another federal department or agency (e.g. U.S. Department of State) Commerce Control List can be extremely confusing to find the ECCN (Export Control Classification Number) for the technology you wish to export. Even if you are certain the item is not listed on the CCL, there are still 10 additional General Prohibitions to consider before exporting without obtaining a license from BIS. On top of this, there are specific persons, organizations, and countries to which you cannot export. Conclusion: Do not conduct your own EAR export determination without help from the UARC Compliance Officer and/or BIS. Don’t forget the FAR and OFAC lists. When in doubt, contact your UARC Compliance Officer. For more information, go to: http://www.access.gpo.gov/bis/ear/ear_data.html

2. What is “Controlled”? U.S. Department of the Treasury Office of Foreign Assets Control (OFAC) Enforces economic and trade sanctions and embargoes against targeted foreign countries, terrorists, international narcotics traffickers, and those engaged in the proliferation of weapons of mass destruction. Specially Designated Nationals (SDN) & Blocked Persons List (updated frequently) Some sanctioned countries include: Burma, Cuba, Iran, Liberia, North Korea, Sudan, Syria, and Zimbabwe. Summary: Even if the EAR and FAR do not prohibit export, 1) verify the OFAC SDN List and sanctioned country lists do not include the foreign entity receiving the proposed export, and if they do, then 2) ensure the scope of the sanction/embargo doesn’t include the technology to be sent. Coordinate all foreign exports through your UARC Compliance Officer. For more information, go to: http://www.treas.gov/offices/enforcement/ofac/

3. What is an “Export”? An “export” occurs anytime an item or information is exchanged Physical shipment or electronic transmission (phone, fax, email) to foreign destinations or foreign persons Releasing information in any format accessible to foreign persons (formal or informal conversations, pictures, internet, etc.) Performing technical assistance, training, repair, or other services for, or on behalf of, foreign persons or entities, whether in the U.S. or abroad. Shipping items or data of U.S. origin from one foreign country to another foreign country (a “re-export”). Sending money to a sanctioned foreign country. Shipping or transferring items/data to another U.S. person with knowledge that an export violation will occur is tantamount to a prohibited export (“end use”).

3. What is an “Export”? U.S. Persons vs. Foreign Persons U.S. persons are: Lawful Permanent Residents (U.S. citizen/national, legal immigrants w/green card) Protected Individuals (in the U.S. as a designated asylee/refugee, or temporary resident under amnesty), unless such protected individuals fail to apply for citizenship w/in 6 months of eligibility, or have not been naturalized w/in 2 years of application. Entities incorporated to do business in the U.S. Foreign Persons are everyone else. Foreign businesses doing business in the U.S. but not incorporated in the U.S. are foreign persons. Dual-Citizens Generally, the individual will be treated as a foreign national of the most sensitive country to which they hold citizenship. Dual-citizens who hold U.S. citizenship are sometimes treated as U.S. persons, depending on the applicable law or agency.

3. What is an “Export”? Deemed Exports - Nothing leaves the country, but information is impermissibly exchanged within our borders in violation of export laws. A “deemed export” is: A release within the U.S., Of technology or source code, Which is subject to export regulations, To a foreign person*. (* such a release is “deemed” to be an export to the home country of the foreign person.) Examples of Deemed Exports: Tours of laboratories Foreign nationals employed in certain R&D (e.g. Alt II tasks) Foreign students/scholars conducting research Hosting foreign scientists “Discussing” Alt II work with foreign persons

3. What is an “Export”? Summary: Providing access to, or assistance with, controlled items or information to foreign persons without authorization from the appropriate branch of U.S. government is illegal. Exporting within U.S. borders is possible, called “deemed exports”, and subject to the same penalties as shipping outside U.S. borders. Foreign businesses and corporations are considered “foreign persons”. Shipping an item or providing information or a service to someone with knowledge that an export violation will occur is a violation of export control laws.

4. Exclusions and Licenses Exclusions – Types of technical data/information not subject to export controls Public Domain - publicly available information and software, published for sale, in public libraries, open conferences, and any work cleared by U.S. government agency for unlimited public release. (e.g. non-proprietary information) Educational Information – general scientific, mathematical, or engineering principles commonly taught in colleges and universities. Patents – FAR: information contained in patents available at any patent office; EAR: information in a patent application and authorized for filing in foreign countries by US Patent and Trademark Office. Fundamental Research – this exemption only applies to: Technical data that arises during or results from fundamental research (basic and applied), the results of which are ordinarily published and shared broadly within the scientific community, and have no restrictions on publication, dissemination, or access (other than for protection of proprietary information).

4. Exclusions and Licenses If no exception or exclusion applies, then a license is required for the export or deemed export of controlled items, information, or services. Obtained from BIS or ODTC as applicable. Coordinated by UARC compliance officer, UC Office of the President, and Sponsor (NASA). Can take several weeks to several months to obtain a license.

5. Conclusion By now, the following should be apparent: Alt I Tasks: Export control laws do not apply fundamental research (technology readiness level (TRL) still low) no access or foreign national restrictions work cleared by NASA for unlimited public release Alt II Tasks: Might include export controlled items Export controlled items/data will be identified in the task if known (current export determination not always available) In general, foreign nationals are not allowed on task without prior approval and a technology control plan Publication/dissemination/release of information restricted by NASA A Data Management Resource (DMR) is provided to all UARC task managers detailing specific data handling requirements for each task.

Contact Info UARC Compliance Officer Scott Fong Phone: 650-604-1284 Fax: 650-604-0500 Email: scott.fong@adm.ucsc.edu NASA Research Park Building 19, Room 1088 P.O. Box 7, M/S 19-26 Moffett Field, CA 94035