Office of Grants and Contracts Export Control

1
(No Transcript)
2
Office of Grants and ContractsExport Control

• Basic Guidelines and
• Updated Information on
• Export Control Issues

3
What Is Export Control?

• Regulatory scheme to control the transfer of U.S.
  Technology to foreign entities
• Purpose to protect national security, to further
  U.S. Policy, to protect short supplies
• Includes licensing procedures to allow sales and
  transfers of technology
• Imposes stiff civil and criminal sanctions for
  violations of export control laws

4
Growing Focus on University Research

• Most licensing and enforcement activity directed
  towards private industry
• Interagency IG audit conducted in 2003-2004
  focused on university and lab research
• New government outreach programs directed towards
  universities
• Increase in deemed export licensing

5
What Regulations Govern Export Control?

• ITAR International Traffic in Arms Regulations
• Administered by State Department
• Applies to military technology, including
  items on U.S. Munitions List
• EAR Export Administration Regulations
• Administered by Commerce Department
• Applies to dual-use technology, including
  items on Commerce Control List

6
What Is an Export?

• Sending or taking a controlled article out of the
  U.S.
• Transferring a controlled article to a foreign
  government (e.g., embassy, trade mission) within
  the U.S.
• Performing a defense service (e.g., training)
  for a foreign person, whether in the U.S. or
  abroad.
• Disclosing (including oral or visual disclosure)
  technical data to a foreign person, whether in
  the U.S. or abroad (a deemed export).

7
What Is a Deemed Export?

• Release of controlled technology (including
  source code) to a foreign person within the U.S.
• Such release is deemed to be an export to the
  home country of the foreign person.
• Release can include oral communication of
  information, visual observation of technology,
  physical or electronic access to technology, use
  of technology, and any other form of technology
  transfer.

8
Who or What Is a Foreign Person?

• Any natural person who is not
• A U.S. citizen by birth
• A naturalized U.S. citizen, including those with
  dual citizenship
• A lawful permanent resident of the U.S.
• A protected individual (political refugee)
• Any foreign corporation or other business entity
• Any foreign government or governmental agency or
  subdivision

9
What exports are authorized?

• An export of a controlled item for which a
  license has been obtained.
• An export of a controlled item which is
  specifically permitted without a license.
• An export of an item which is exempt or excluded
  from export control regulation.

10
Export Control Exemptions

• Public domain or published information exemption
• Teaching exemption
• Fundamental research exemption
• Full-time employee exemption (ITAR only)
• Other exemptions
• De minimums quantities
• Research satellites

11
Public Domain Exemption

• Information in the public domain is not
  controlled under ITAR or EAR, even if it
  otherwise is included in the USML or CCL
• Public domain means published and generally
  accessible to the public through
• Sales at bookstores and newsstands
• Subscriptions to periodicals and journals
• Library materials
• Releases at open conferences and meetings
• Publicly available patents

12
Teaching Exemption

• Information released by instruction in catalog
  courses and associated teaching laboratories of
  academic institutions not subject to EAR
• Information concerning general scientific,
  mathematical or engineering principles commonly
  taught in schools, colleges and universities not
  subject to ITAR
• Exemption does not apply to encryption software

13
Fundamental Research Exemption

• Basic and applied research in science and
  engineering at accredited institutions of higher
  learning in the U.S.
• Where the resulting information is ordinarily
  published (actually published under ITAR) and
  shared broadly within the scientific community.
• Distinguished from research the results of which
  are restricted for proprietary reasons or
  specific U.S. government access and dissemination
  controls.

14
Full-Time Employee Exemption

• Available under ITAR only
• Release of unclassified information to foreign
  persons in the U.S. exempt if
• Full-time, bona fide university employee
• Permanent abode in U.S. during employment
• Not a national of an embargoed country
• Institution informs employee in writing of export
  control restrictions

15
Research Considerations

• Involvement of foreign nationals in research
• Nature of research
• Publication restrictions
• Access and dissemination controls
• Information provided by sponsor
• Information about research equipment
• Services provided in connection with research

16
Involvement of Foreign Nationals

• Many foreign faculty members are either
  naturalized citizens or permanent residents
• Most foreign students are neither naturalized
  citizens nor permanent residents
• Exclusion of foreign persons from research
  activities is problematic
• Discrimination, privacy and competence issues
• Does not prevent access to research data
• in unsecure facilities

17
Nature of Research

• Basic research
• Systemic study directed toward greater knowledge
  or understanding of the fundamental aspects of
  phenomena and of observable facts without
  specific applications toward processes or
  products in mind.

18
Nature of Research

• Applied research
• Systemic study to gain knowledge or understanding
  necessary to determine the means by which a
  recognized and specific need may be met.

19
Nature of Research

• Development
• Systemic application of knowledge toward the
  production of useful materials, devices, and
  systems or methods, including design,
  development, and improvement of prototypes and
  new processes, to meet specific requirements.

20
Publication Restrictions

• Fundamental Research exemption not applicable if
  
• Publication is prohibited
• Indefinite prepublication review is required
• Confidentiality provisions restrict publication
• Temporary prepublication review to protect
  proprietary information is acceptable

21
Access and Dissemination Controls

• Fundamental research exemption will not apply if
• Research is sponsored by U.S. government, and
• Specific access and dissemination controls
  protecting research information are applicable
• Access and Dissemination controls include
• Security classification required for personnel or
  information
• Restrictions on use of foreign personnel
• Publication restrictions

22
Information Provided by Sponsor

• Fundamental research not affected by
  sponsor-imposed use restrictions on information
  it provides for research purposes if publication
  of research results remains unrestricted
• Fundamental research exemption will not apply if
  sponsor imposes restrictions which prohibit
  publication of information provided for research
  purposes

23
Information About Research Equipment

• Information on the use, maintenance, and
  operation of controlled laboratory equipment
  remains subject to export control requirements
  even if such equipment is utilized to conduct
  exempt fundamental research
• Allowing access by foreign persons to controlled
  laboratory equipment and information about such
  equipment may constitute a deemed export of
  such information

24
Services Provided in Connection with Research

• A defense service under ITAR includes
  instruction or training provided to foreign
  persons in the U.S. regarding the design,
  development, engineering, manufacture, assembly,
  testing and use of defense articles
• A license (TAA) to provide instruction to foreign
  persons regarding a defense article is required
  even if all of the information provided results
  from fundamental research and is in the public
  domain

25
Overriding Research Considerations

• National Security concerns
• Public Safety Concerns
• Development of Weapons of Mass Destruction

26
The Defense Contract Project

• Sponsor is defense contractor involved in
  biological weapons research
• NMSU Task 1 Conversion of published mathematical
  formulae into FORTRAN computer code, and
  comparing code with a competing, commercially
  available code
• NMSU Task 2 Production of experimental fibers

27
The Defense Contract ProjectSubcontract
Provisions

• Unrestricted publication rights, except approval
  of Sponsor required for release of information
  where there is a high likelihood of disclosing
  performance characteristics of military systems .

• Subcontractor shall not employ Foreign Nationals
  without the specific written approval of Sponsor

28
The Raman Spectroscopy Project

• Research involving Raman spectroscopy
• Unrestricted fundamental research
• Concern was use of controlled equipment in
  research work
• Resolution Licensing not required

29
The NanoSatellite Project

• Fundamental research on creative, low-cost
  satellite design
• Project involves designing and building
  nanosatellites
• Publication of all research information required

30
The NanoSatellite Project

• The nanosatellite components are defense articles
• The nanosatellite itself is a defense article
• Instructing a foreign person in the assembly of a
  defense article is a defense service

31
Export Control Compliance

• Development of comprehensive NMSU export control
  guidelines
• Will provide additional and updated compliance
  templates and checklists
• Will establish procedures for licensing of
  appropriate research projects
• Will establish guidelines for negotiating
  contracts containing export control clauses