1. Export Controls: Key Issues
Debra Murphy
Candyce Lindsay
Susan Metosky

2. What is an Export?
An export under the regulations is any shipment, transmission or transfer of controlled physical items,
information or software, technical data to foreign
persons in the US or abroad without an export
license or exemption.
Transmission of information or technology including by phone, fax, and conversation are considered an export to the home country of a foreign national.

3. Why Do We Have Export Controls?
Objective – to protect U.S. national security and foreign
policy interests by:
Preventing terrorism
Restricting exports of goods and technologies that may contribute to military potential of foreign adversaries
Protecting loss of goods and key technologies that could affect the U.S. economy

4. Export Control Export Control Laws regulate distribution of
controlled information and technology to
foreign nationals and foreign countries for
reasons of foreign policy and national security of
the people and technology of the United States.
Note: Export controls laws apply to all activities – not just sponsored projects.

5. Export Control Laws?
United States Export Controls are governed by three principal sets of regulations
U.S. Department of Commerce
Export Administration Regulations (EAR) – dual use (civilian or military) technology
U.S. Department of State
International Traffic in Arms Regulations (ITAR) – military
U.S. Department of Treasury
Office of Foreign Assets Control (OFAC) – sanctioned countries controls

6. What is controlled by the regulations?
U.S. Department of Commerce - Export Administration Regulations (EAR) – dual use (civilian or military) technology
The Commerce Control List (CCL) in made up of 10 categories dual use items such as:
Nuclear Materials, Facilities and Equipment and Misc.
Chemicals, Microorganisms and Toxins
Electronics
Computers
Telecommunications and Information Security
Lasers and Sensors
Propulsion Systems, Space Vehicles and Related Equipment

7. What is controlled by the regulations?
U.S. Department of State – International Traffic in Arms
Regulations (ITAR) – military
The ITAR Munitions Control List contains 17 categories including items such as:
Firearms and Ammunition
Guided Missiles, Ballistic Missiles, Rockets, Torpedoes, Bombs and Mines
Explosives, Propellants, Incendiary Agents, and Their Constituents
Vessels of War and Special Naval Equipment
Tanks and Military Vehicles
Aircraft, [Spacecraft] and Associated Equipment
Military Training Equipment
Protective Personnel Equipment

8. What is controlled by the regulations?
U.S. Department of Treasury - Office of Foreign Assets Control
(OFAC) – sanctioned countries controls
OFAC administers and enforces economic and trade sanctions that have been imposed against specific countries for reasons of foreign policy, national security, or international agreements.  The controls target countries involved in terrorism, international narcotic traffickers and those engaged in activities related to the proliferation of weapons of mass destruction. The embargoed countries are frequently referred to as the T – 7s. Information on all countries currently subject to embargo and boycott programs are available at US Treasury Website. g

9. Areas of Export Concern at ASU
Bioanalytics - Assay
Bioanalytics - Devices
Biomaterials
Biosecurity
Drug Screening
Environmental Biotech/Clean Tech
Industrial Biotechnology
Medical Devices
Medical Imaging
Neutraceuticals
Therapeutics & Vaccines

10. Export Controls and ASU Researchers
Most research activities (over 90%) performed at ASU are fundamental in nature and are not controlled by the export regulations – so long as we remember that the controls are the law of the land and we must ensure that we can demonstrate due diligence in protecting what needs to be protected.

11. Exclusions from Export Control Laws
Fundamental Research Exclusion (ITAR, EAR)
Public Domain Exclusion (ITAR, EAR)
Education Exclusion (ITAR, EAR)

12. Fundamental Research
Fundamental research means basic and applied research
in science and engineering, the results of which are
ordinarily 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.

13. Fundamental Research
Research conducted by faculty and students at ASU will normally be considered fundamental research ~93%
University based research is not considered “fundamental research” if the university or its researchers accept restrictions on the publication or dissemination of the results of the project
Prepublication approval by a sponsor or other restrictions on publication invalidates the FRE.
What does FRE allow? Exchanging research information with foreign nationals here and abroad. FRE only covers information and not physical items.

14. Public Domain
Public Domain Exclusion (ITAR, EAR) allows for export or transfer information and research results that are
generally available to the interested public through:
Libraries, bookstores, or newsstands,
Trade shows, meetings, seminars in the U.S. open to the public,
Published in certain patent applications, or
Websites accessible to the public.
Note: the public domain exclusion applies to information and research results – not
physical equipment, substances, etc.

15. Education Exclusion
The Education Exclusion (ITAR, EAR) allows for the transfer information to students, including students who are foreign nationals, concerning general scientific, mathematical or engineering principles commonly taught in school, colleges or universities

16. Key Issues Foreign Travel Shipping Anything to any Foreign Country
to sanctioned countries ( Iran, North Korea, Syria, Sudan)
hand carrying export controlled items (GPS, prototypes, etc.)
controlled technical data (blueprints, engineering designs, etc.)
Shipping Anything to any Foreign Country
always requires export certification by shipper to document export determination (ITAR, EAR, NLR, ECCN, USML). ORIA recommends the use of FEDEX Online as that provides the necessary information to document shipping safeguards.
Receiving Export Controlled Data from Sponsor
requires safeguarding (TCP)

17. More Key Issues Deemed Exports Restricted Party Screening
non-US persons in the United States
same as exporting to the individual’s country
Restricted Party Screening
government lists of restricted entities and individuals
ASU cannot conduct any type of business with
screen all participants on export controlled research

18. Some Sponsors of Export Concern
Industry Contracts, Foreign Sponsors and Other Agreements
Department of Defense Agencies
Department of Homeland Security
Department of Energy
NASA
DARPA, DTRA, ONR, etc.

19. ASU Strategies Fundamental Research Exclusion
Negotiate Contract Language
3rd
Exemptions/Exceptions
4th
Apply for License

20. Consequences of Non-Compliance
ITAR
Criminal and Civil Up to $1 million per violation and 10 years imprisonment
Professor Roth (Univ. TN) just convicted of 18 violations. Sentenced to 4 years in prison July Appeal was denied in 2010.
OFAC
Criminal and Civil: $11k TO $10M per violation and 10 to 30 years imprisonment
Augsburg College, fined $36k for trips to Cuba - new easing of restrictions
Michael Moore filming of “Sicko”
EAR
Criminal and Civil: $10K to $1 million or 5 times value of export, whichever is greater, per violation, 10 years imprisonment
Prof. Thomas Butler, Texas Tech – 2 years in prison for unauthorized exports (plague bacteria)
ITT fined $100M for exporting night vision materials without a license
Probably the most important case to be prosecuted under the ITAR is a recent case at the University of Tennessee where a professor was charged with 18 export violations. Upcoming, Debra will present this as a case study for you. As you can see the penalties and fines are very severe and can be levied against the individual as well as the institution. Personal liability is true under not only the ITAR but also the EAR and OFAC regulations.

21. Export Controls and ASU Researchers
How do we protect ourselves?
We provide:
Outreach to research intensive units to ensure we are all educated in our responsibilities
Review services using state of the art tools (Visual Compliance) to determine when controls are necessary.
Continuing review and education to investigators working under technology control plans.

22. Prevention
Contact the Office for Research Integrity and Assurance (ORIA) for assistance well in advance of an award –
Do not take export controlled technical data on laptops when you travel abroad. Keep laptops under your effective control at all times.
Do not have foreign nationals on projects that are export controlled without a license.
Read the contract & award for export control language.
Protect FRE by not accepting publication restrictions from a sponsor.
Watch for dissemination or foreign access restrictions from sponsor.

23. What We Can Do For You
Export reviews for faculty - RFP, award T&C, NDA, MTA
Assist with export control specific contract negotiation language
Classification of items
License determination
Apply for a license
Screen foreign nationals
Research applicable exemptions
Provide guidance on export issues
Help with forms

24. Relatively New Export Issue
US Citizenship and Immigration Service I-129 Export
Control Certification requirement for H-1B Visa Applicants
USCIS requirement for institutions to certify that the applicable EAR and ITAR regulations have been reviewed
Part 6 of the form will be certified by collaboration between ORIA and ISSO
Mandatory effective Feb 20, 2011

25. Q and A
Your turn – what questions do you have for us?