EXPORT COMPLIANCE

BASIC PRINCIPLES RF Symposium March 24, 2015

Export Controls

Export Controls are U.S. laws that regulate the distribution of items, technology, services, and information, including items and technology used in research, for reasons of foreign policy and national security.

Export Control Laws apply to all U.S. persons where ever located.

Regulations

Department of State (DoS), International Traffic in Arms Regulations (ITAR), U.S. Munitions List (USML) controls defense articles, defense services and technical data.

Department of Commerce (DoC), Export Administration Regulations (EAR), Commodity Control List (CCL), controls commercial and dual use commodities, technology and software.

Regulations continued

Department of Treasury, Office of Foreign Asset Controls (OFAC), sanction and embargo programs.

Other federal agencies have export control authority, Nuclear Regulatory Commission, Department of Energy, Center for Disease Control, Food and Drug Administration, Drug Enforcement Agency.

Examples

Items: Night vision goggles, biologics and viruses, stun guns, GPS, high speed computers, lasers, cameras, amplifiers, chemicals, underwater equipment.

Technical Data/Technology: blueprints, plans, diagrams, models, formulae, tables, engineering designs, manuals and instructions written or recorded.

Examples continued

Technical Assistance: instruction, skills training, working knowledge, consulting services. Defense Services under the ITAR.

Software: Information security equipment software, information security software, information technology support software, CAD software for semiconductors and integrated circuits, acoustic beam forming software.

EAR99 Commercial items:

Not specifically designated on the CCL. Not subject to the jurisdiction of another federal agency

(military items and nuclear items). Not otherwise excluded – not publicly available.

EAR99 items can be exported to most locations without a license. Need to review for embargoes, sanctions, restricted party status, and end-user intent.

Ways to Export Export: actual shipment or transmission of item out of the

U.S.

Deemed Export: release of an item(usually technology or software) to a foreign national within the U.S. Can be through visual inspection, oral exchange, electronic/digital exchange or by practice/application (for example training).

Re-Export and Deemed Re-export

Foreign National/Person

The federal definition of a foreign national is a person who is NOT:

• Granted permanent U.S. residence, Green Card.• Granted U.S. citizenship.• Granted status as a protected person (political refugees,

political asylum holders). • Includes foreign corporations, businesses, associations,

foreign governments, international organizations.

Exemptions/Exclusions Exempt from the ITAR is Information in the Public Domain. Excluded from the EAR is Information that is Publicly

Available.

No General Exemption/Exclusion from OFAC, embargoes and sanctions are country specific. General Licenses but they are program specific.

Public Domain/Publicly Available

Fundamental Research (FRE)Educational Information (EIE)Open Conferences, Seminars Some Patent Applications

Fundamental Research

Basic and applied research in science and engineering where the resulting information is ordinarily published and shared broadly within the scientific community, as distinguished from research the results of which are restricted for proprietary or specific U.S. government access and dissemination controls.

ITAR – at a institution of higher education in the U.S.

What Would Void the FRE

The University or its researchers accept other restrictions on publication of scientific or technical information resulting from the project or activity, or

The research is funded by the U.S. government and specific access and dissemination controls protecting information resulting from the research are applicable.

Educational Information (EI) Generally speaking, allows for the teaching of commonly

taught information at universities.

DoC: focuses on venue. Information conveyed in courses listed in course catalogs and associated teaching labs.

DoS: focuses on subject matter. Only covers general science, math and engineering principles taught in universities.

What is Outside of the EIE

The educational information exemption/exclusion does not apply to providing additional information that is beyond the scope of what is generally included in the catalog course.

Conference, Seminars, Workshops

DoC: information that is released at an open conference, meeting, seminar, trade show, or other open gathering.

“Open” means all technically qualified members of the public are eligible to attend and take notes.

DoS: information released through unlimited distribution at a conference, meeting, seminar… in the United States.

Patents

DoC: Filed with a foreign filing option and the foreign filing option has been approved by U.S. Patent and Trademark Office.

DoS: Patents available at any patent office.

Restricted Party Certain individuals and entities are prohibited from

receiving U.S. exports without a license. There are over fifty lists issued by governmental

agencies. Not limited to foreign entities and can include US

persons. Subject to change and are updated routinely. Designation is not based upon nationality but instead is

based upon previous behavior or action.

Restricted Party continued

Who can be a restricted party:Anyone: Vendors, Customers, Visitors, Students, Volunteers, Collaborators, Consultants, Company Reps, Employees.

eCustoms Visual Compliance Screening Software to conduct Restricted Party Screening (RPS).

Compliance Review

Item What are we exporting? Which regulations apply.

PlaceWhere are we exporting to? Military items cannot be exported without a license. Dual use items are country based controls. Special rules for embargoed/sanctioned countries.

Compliance Review continued Person/EntityWho is the recipient/end-user? Conduct RPS.

End-UseWhy are we exporting? The transaction should make business sense. The end-user should have experience in the area.

Areas for Review

Sponsored Programs Activity Third Party Proprietary Data International Travel International Collaborations Lab Activity that is not Fundamental Research

Areas for Review continued

Employees International Visitors PurchasingAccounts PayableShipping and Receiving

Sponsored Programs Activity Maintain the FRE. Conduct a RPS. Request that sponsors identify any confidential information

that is export controlled prior to releasing it to the project director .

Identify any ITAR controlled equipment/technical data that may be used to complete the project.

Identify any international collaborations/consultants.

Third Party Proprietary Data Third party proprietary data even if received as part of

completing a fundamental research project is subject to the regulations. Non-Disclosure Agreement (NDA) or terms of the

Sponsored Research Agreement (SRA) should require that the disclosing party identify export controlled information.

Safeguard received export controlled information, secure IT systems.

International Travel Conduct a RPS. Review items/technology being hand-carried or being

shipped. No items/technical data subject to the ITAR can be

exported without a license. Temporary Export TMP – Tools of the Trade for some

items/technical data. All reviews and license exceptions should be

documented.

International Collaborations Consultants, Collaborators, Independent Contractors,

Subcontractors, Sponsors, Memorandums of Understanding, Academic Exchange Programs.

Conduct a RPS. Review items/information to be exchanged.• Are we shipping samples, software, prototypes.

Lab Activity that is not Fundamental Research

IFR and Service and Facility Centers – these are campus recharge centers that provide services both to the campus and to outside entities.

Need to consider: Are they receiving export controlled

items/technology/technical data? Do they have controlled equipment/technology/technical

data in the facility?

Employees Conduct a RPS. If foreign national:

Determine if a license is required for them to conduct their job responsibilities. • Examples laboratory managers, IT functions, building

managers. I129 Attestation for H1 and O1 visas. Determine if any affiliations are with restricted entities.

International Visitors Conduct a RPS on the person and their home institution.

Employees are considered agents of an entity, so if a visitor’s home institution is a Restricted Party, then the restrictions are also applied to the visitor.

Verify that the visitor’s background fits the purpose of their visit.

Determine if a license is needed for them to participate in the proposed activities.

Purchasing and Accounts Payable

Purchasing Conduct a RPS. Request the export classification from the vendor. Alert campus official of controlled items being ordered.

Accounts Payable Conduct a RPS. Review for OFAC compliance.

Shipping and Receiving Shipping

Conduct a RPS. Material Transfer Agreement. Determine if the shipment requires no license, a license,

or has an applicable license exception. Receiving

Determine if the item is controlled. Contact campus official to implement security controls.

Resources Know Your Customer Guidance, DoC, Bureau of Industry and

Securityhttp://www.bis.doc.gov/index.php/compliance-a-training/export-management-a-compliance/freight-forwarder-guidance/23-compliance-a-training/47-know-your-customer-guidance Core Elements of an Effective Export Management and Compliance

Program, DoC, Bureau of Industry and Security http://www.bis.doc.gov/index.php/compliance-a-training/export-management-a-compliance/elements-of-an-effective-emcp

ResourcesInternational Traffic in Arms Regulationshttp://pmddtc.state.gov/regulations_laws/itar_official.html

Export Administration Regulationshttp://www.bis.doc.gov/index.php/regulations/export-administration-regulations-ear

Office of Foreign Assets – Sanctions Programshttp://www.treasury.gov/resource-center/sanctions/Programs/Pages/Programs.aspx

ResourcesExport.gov Frequently Asked Questionshttp://www.export.gov/faq/index.aspFederal Bureau of Investigations http://www.fbi.gov/about-us/investigate/counterintelligenceCouncil on Governmental Relations http://www.cogr.edu/Pubs_ExportControls.cfmAssociation of American Universities http://www.aau.edu/policy/article.aspx?id=4694International Travel Information http://travel.state.gov/travel/cis_pa_tw/cis_pa_tw_1168.html