1 Office of Research and Sponsored Programs U.S. Export Control Laws

2 What is an “export”?  Exports: The shipment or transfer of items, information or software outside the U.S. or; the release or software outside the U.S. or; the release or sharing of restricted technology or data – orally or sharing of restricted technology or data – orally or in writing – with foreign nationals inside or outside in writing – with foreign nationals inside or outside the U.S. the U.S. Items – Tangible things, equipment or hardware Items – Tangible things, equipment or hardware Information = “Technical Data” such as models, formulae, Information = “Technical Data” such as models, formulae, engineering designs, or; technical assistance such as training or engineering designs, or; technical assistance such as training or instruction. instruction. Software – Computer programs or microprograms in Software – Computer programs or microprograms in either “Source Code” (programming statements) or either “Source Code” (programming statements) or “Object Code” (machine-readable instructions). “Object Code” (machine-readable instructions).

3 Tangible vs. “Deemed Exports”  An “export” is a tangible shipment of an item, information or software outside of the U.S. software outside of the U.S.  A “deemed export” is a "release” of information or software code to a foreign person in the U.S. code to a foreign person in the U.S. Transmitting the technology to a foreign national, an individual other Transmitting the technology to a foreign national, an individual other than a U.S. citizen or permanent resident, within the United States. than a U.S. citizen or permanent resident, within the United States. Foreign national – a person residing in the U.S. who is not a lawful Foreign national – a person residing in the U.S. who is not a lawful permanent resident. permanent resident. Also includes any foreign corporation, business association, Also includes any foreign corporation, business association, partnership, trust, society, or any other group not incorporated to partnership, trust, society, or any other group not incorporated to do business in the U.S., and any international organization, foreign do business in the U.S., and any international organization, foreign government, or diplomatic entity. government, or diplomatic entity. Can be oral or written disclosure, or through visual inspection Can be oral or written disclosure, or through visual inspection

4 More on “Deemed Exports”  For an immigrant alien who possesses a green card for permanent residence in the U.S.: For the purposes of export control regulations, such an individual is a “U.S.” person and can be allowed access to export controlled information without an export license.  For a UT employee who is an immigrant alien who does not posses a green card for permanent residence in the U.S.: Only ITAR provides a limited exemption to disclose technical data at MSU to full- time foreign employees under specific conditions.

5 What are Export Controls?  Export controls are federal laws that regulate the export of sensitive that regulate the export of sensitive technologies, equipment, software, technologies, equipment, software, biological agents, and related data biological agents, and related data and services to anyone, including and services to anyone, including U.S. citizens, or to foreign U.S. citizens, or to foreign nationals or representatives of a nationals or representatives of a foreign entity on U.S. soil for foreign entity on U.S. soil for reasons of national security and reasons of national security and protection of trade. protection of trade.

6 Export Control Objectives  Deny our adversaries the means to advance their military potential their military potential  Implement foreign policy objectives  Prevent Terrorism  Inhibit the proliferation of Weapons of Mass Destruction of Mass Destruction  Fulfill Multilateral Obligations (UN sanctions, (UN sanctions, various trade various trade agreements). agreements).

7 Why are These Laws Important?  Violations of trade sanctions and export controls can result in criminal penalties: can result in criminal penalties: Heavy Institutional Fines (up to $1 M per violation) Individual Prison Terms (up to 20 years per violation)

8 Enforcement of Control Laws  Department of Commerce – Export Administration Regulations (EAR) Regulations (EAR)  Department of State – International Traffic in Arms Regulations (ITAR) Regulations (ITAR)  Department of Treasury, Office of Foreign Assets Control (OFAC) – Restricts exports and imports Control (OFAC) – Restricts exports and imports through economic sanctions against certain through economic sanctions against certain countries countries

9 E xport A dministration R egulations (EAR)  Enforced by Bureau of Industry & Security (BIS)  Governs export and re-export of all U.S. origin items, information and/or software  Covers “dual use” items, information and software designed for commercial purposes but having military applications  Exports organized into 10 discrete categories on Commodity Control List (CCL)  Captures many common areas of university research

10 Commodity Control List Ten Specific Categories:  Nuclear materials, facilities, equipment research  Chemicals and toxins  Materials processing, i.e., making plastics, metals  Electronics development  Computer development and programs  Telecommunications  Information security (encryption)  Sensors and lasers  Navigation and avionics  Propulsion systems and space vehicles  EAR99 – catch-all (subject to EAR, but not CCL listed)

11 EAR Licensing Continuum Not on CCL/EAR 99 - No License Required Except to Embargoed Countries On CCL/No License Required to Country of Export On CCL – License Required to Country of Export, but License Exception Available On CCL – No License Exception Available - License Required Less Restrictive More Restrictive

12 I nternational T raffic in A rms R egulations  (ITAR) enforced by State Department’s Directorate of Defense Trade Controls (DDTC) Defense Trade Controls (DDTC)  Transfer and export of technologies relating to military applications (including satellite technologies) listed on the applications (including satellite technologies) listed on the U.S. Munitions List. U.S. Munitions List.  Examples: Electronic equipment, systems, or software Electronic equipment, systems, or software Technical data related to manufacture or production Technical data related to manufacture or production Classified information security systems Classified information security systems

13 22 CFR 121: Munitions Firearms Firearms Artillery projections Artillery projections Ammunition Ammunition Launch vehicles, guided missiles, ballistic missiles, rockets, torpedoes, bombs & mines Launch vehicles, guided missiles, ballistic missiles, rockets, torpedoes, bombs & mines Explosives, propellants & incendiary agents Explosives, propellants & incendiary agents Vessels of war & special naval equipment Vessels of war & special naval equipment Tanks & military vehicles Tanks & military vehicles Aircraft & assoc. equipment Aircraft & assoc. equipment Military training equipment Military training equipment Protective personnel equipment Protective personnel equipment Military electronics*** Military electronics*** Fire control, range finder, optical & guidance & control equipment Fire control, range finder, optical & guidance & control equipment Auxiliary military equipment*** Auxiliary military equipment*** Toxicological agents & equip. & radiological equip. Toxicological agents & equip. & radiological equip. Spacecraft systems & equipment*** Spacecraft systems & equipment*** Nuclear weapons design & test equipment Nuclear weapons design & test equipment Submersible vessels, oceanographic & associated equipment Submersible vessels, oceanographic & associated equipment Misc. articles*** Misc. articles*** ***Significant items of interest to research institutions

14 Prohibited Countries From 22 CFR 126.1: “It is the policy of the United States to deny licenses, other approvals, exports and imports of defense articles and defense services, destined for or originating in certain countries.” Applicable Countries Afghanistan Liberia Armenia North Korea Azerbaijan Syria Belarus Tajikistan Cuba Ukraine Iran Vietnam Iraq Arms Embargoed Countries Burma China Fed. Rep. of Yugoslavia Haiti Liberia Rwanda Somalia Sudan Zaire

15 O ffice of F oreign A ssets C ontrol  OFAC enforced by the Treasury Department’s Office of Foreign Assets Control (OFAC) Foreign Assets Control (OFAC)  Places economic sanctions and/or transfer of payments, property, or anything of value to: property, or anything of value to: Sanctioned or Embargoed countries Sanctioned or Embargoed countries “Specially Designated Nationals (SDNs) – terrorists, “Specially Designated Nationals (SDNs) – terrorists, drug kingpins, and persons involved with WMDs drug kingpins, and persons involved with WMDs (includes organizations to which SDNs belong) (includes organizations to which SDNs belong)

16 OFAC Countries Subject to U.S. Trade Embargoes Burma Cuba Iran Syria North Korea Sudan Sanctioned Countries and Territories Balkans Cote D’Ivoire Iraq Liberia Libya Palestinian Authority Zimbabwe

17 OFAC Prohibited Activities Shipment of tangible items in support of research with Shipment of tangible items in support of research with knowledge that items will be used in or for the benefit of knowledge that items will be used in or for the benefit of the embargoed country the embargoed country Payments to persons including organizations to conduct or Payments to persons including organizations to conduct or support in-country research (i.e. surveys, interviews, support in-country research (i.e. surveys, interviews, fellowships, etc.) fellowships, etc.) Providing financial or material support to conferences Providing financial or material support to conferences hosted or co-hosted by academic institutions in hosted or co-hosted by academic institutions in embargoed countries embargoed countries

18 Applicability  These laws apply to all research activities whether or not there is a specific citation to the regulations in the grant or contract award document governing the project.  These laws also apply to export-controlled information or technology shared with researchers by others from government, industry, or other universities.

19 Applicability  The majority of university research efforts are not restricted by export regulations. However, export control may apply when one or more of the following concerns pertain to the research project: It has actual or potential military applications The destination country, organization, or individual is restricted by federal law The declared or suspected end use or the end user of the export compromises national security Economic protection issues are associated with the destination country

20 Export Control Exclusions  This is how researchers and research institutions can: can: Exempt certain information and software from Exempt certain information and software from export licensing requirements export licensing requirements Stay out of jail! Stay out of jail!

21 Export Control Exclusions Public Domain Exclusion (ITAR) Public Domain Exclusion (ITAR) Publicly Available Exclusion (EAR) Publicly Available Exclusion (EAR) Educational Information Exclusion Educational Information Exclusion Employment Exclusion (ITAR) Employment Exclusion (ITAR) Fundamental Research Exclusion Fundamental Research Exclusion

22 P ublic D omain E xclusion (ITAR)  Export controls do not apply to information and research results already published and publicly research results already published and publicly available from: available from: Public libraries, newsstands or bookstores; Public libraries, newsstands or bookstores; Unrestricted journal and magazine subscriptions Unrestricted journal and magazine subscriptions Published patents Published patents Conferences, meetings, seminars, trade shows or Conferences, meetings, seminars, trade shows or exhibitions in the U.S.; and/or exhibitions in the U.S.; and/or Websites accessible to all members of the public, Websites accessible to all members of the public, free of charge. free of charge.

23 P ublicly A vailable E xclusion (EAR)  CCL listed information and software that is generally accessible to the public in any form generally accessible to the public in any form through any one or more of the following: through any one or more of the following: Publication in periodicals, books, electronic, or any Publication in periodicals, books, electronic, or any other media other media Public and university libraries; Public and university libraries; Published patents and applications; and Published patents and applications; and Conferences, meetings, seminars, trade shows or Conferences, meetings, seminars, trade shows or exhibitions in the US or abroad exhibitions in the US or abroad

24 E ducational I nformation E xclusion  ITAR – Export Controls do not apply to information concerning “general scientific, information concerning “general scientific, mathematical or engineering principles commonly mathematical or engineering principles commonly taught in schools, colleges and universities.” taught in schools, colleges and universities.”  EAR – Export Controls do not apply to “educational information” released by instruction “educational information” released by instruction in catalog courses and associated teaching in catalog courses and associated teaching laboratories. laboratories.

25 Employment Exclusion (ITAR) Export license not required for universities to share information in the U.S. with a foreign person if that person:  Is a “bona fide” employee of the university – full time with full benefits full benefits Grad students and most post-docs are excluded Grad students and most post-docs are excluded  Not a national from an ITAR embargoed country Belarus, Cuba, Iran, Libya, North Korea, Syria, Belarus, Cuba, Iran, Libya, North Korea, Syria, Vietnam, Burma, China, Haiti, Liberia, Somalia, Vietnam, Burma, China, Haiti, Liberia, Somalia, Sudan, Iraq, Afghanistan, Rwanda, and Democratic Sudan, Iraq, Afghanistan, Rwanda, and Democratic Republic of the Congo Republic of the Congo  Resides at a permanent address in the U.S. while employed employed

26 F undamental R esearch E xclusion It is federal policy “that, to the maximum extent possible, the products of fundamental research remain unrestricted.”  Definition (National Security Decision Directive 189) – “Basic or applied research in science and engineering, “Basic or applied research in science and engineering, the results of which ordinarily are published and shared the results of which ordinarily are published and shared broadly within the scientific community.” broadly within the scientific community.”  Covers most basic research at colleges and universities  Information must have been generated in the U.S. (foreign generated info may qualify under other public (foreign generated info may qualify under other public domain criteria) domain criteria)

27 F undamental R esearch E xclusion Fundamental Research Exclusion does not apply if: University accepts any restrictions on the publication of resulting information, other than 90 day review by sponsors to:  Prevent divulging proprietary information  Insurance against compromising a patent Fundamental Exclusion destroyed by any clause that:  Gives sponsor right to approve publications  Restricts research participation of foreign nationals  Exclusion is destroyed irregardless of sponsorship (federal, private, or non-profit) (federal, private, or non-profit)

28 University of Toledo As a public university, the University of Toledo is committed to the widest possible public dissemination of scientific learning and research results. Therefore, all information and data to be created or used at UT must fall under the definition of fundamental research as set forth in NSDD 189.

29 Concerns for Researchers  Does the contract or grant:  Restrict publication or presentation of research results?  Prohibit training or collaboration with foreign nationals on any aspect of the research project? on any aspect of the research project?  Prohibit results or deliverables from being disclosed or delivered to any country or persons? delivered to any country or persons?  Contain any reference to export controlled technologies  Will the project require any tangible export of materials to a foreign country of concern? materials to a foreign country of concern?  Research samples, shared equipment, software, publication drafts, travel, other transactions publication drafts, travel, other transactions

30  Third-party items, information or software to which information exchange, publication freedom which information exchange, publication freedom or foreign national access is restricted or foreign national access is restricted  Any Item, information or software that is:  Designed or modified for a military use  For use in outer space  Potentially used in/for a weapon of mass destruction (nuclear, chemical, biological, missiles) (nuclear, chemical, biological, missiles)  included on any other export control list More Concerns for Researchers

31 What Needs to be Done?  Beware of existing export control laws and regulations. regulations.  Screen proposals and contracts for any possibility of application to these laws of application to these laws Shipment of equipment to a foreign country Shipment of equipment to a foreign country Training or collaboration with foreign nationals Training or collaboration with foreign nationals Any work or travel to an OFAC controlled country Any work or travel to an OFAC controlled country Any reference to export controlled technologies in the award Any reference to export controlled technologies in the award  Negotiate removal of all contract terms that limit: Rights to publish or present results Rights to publish or present results Access or participation of foreign nationals Access or participation of foreign nationals

32 Export Control Contacts at UT Kandace Williams, Ph.D. Research Compliance Officer Office of Research University Hall – Room 2300 (419) (419) (fax) Kandace.

33 Test Case Study #1 Your Principal Investigator (PI) is doing research in the field of remote sensing. Your institution receives a research contract from the Department of Defense (DOD) as well as a subcontract from another university in support of this work. Both agreements incorporate the following clause: 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….. Answer

34 Test Case Study #1  The research to be performed falls under ITAR Category XV. The project does not involve providing a defense service, because it is a fundamental research project.  This clause could restrict publications. If the restrictive publication clause is not modified, a license from the State Department would be required to publish the technical data, unless specifically approved by the DOD.  The clause does not comply with various federal policies which state that papers or other publications resulting from unclassified contracted fundamental research are exempt from any prepublication controls.  This clause cannot be accepted.  The clause must be modified to protect the university’s and researcher’s right to freely publish any and all information pertaining to the project.