EXPORT CONTROLS ITAREAR

1
EXPORT CONTROLS(ITAR/EAR)

• Overview and Implications for Research
  Universities

2
What is Export Control?

• Federal laws to protect items, technical data and
  information important to the U.S.
• Laws have been in place for gt 20 years
• More prominent since 9/11 resulting in heightened
  scrutiny

3
Governments Concern

• Open access/publication of scientific and
  technological results may provide unwitting
  assistance to nations or terrorist groups in
  developing weapons
• Protecting economic interests of U.S. companies
• Foreign policy

4
Regulating Agencies

• International Traffic in Arms Regulations (ITAR)
  are administered by Dept of State
• Controls Defense related items
• Export Administration Regulations (EAR) are
  administered by Dept of Commerce
• Controls most other items
• Numerous other regulatory agencies control
  exports such as Dept of Treasury (money), DOE
  (Nucs), DOJ (drugs), USDA (seeds)

5
Purposes

• Control access of certain technology to foreign
  nationals whether in US or abroad.
• Deemed export will be the primary focus for
  research _at_ CSU. Defined as The release of
  technology or software to a foreign national
  within the U.S. is considered an export to the
  home country of that foreign national.
• Currently doesnt apply to U.S. citizens,
  individuals granted permanent residence status
  and certain protected individuals.
• National Security classified information adds a
  whole different dimension to issue.
• Failure to comply can result in criminal as well
  as civil penalties.
• Increased emphasis since 9/11move to DHS and
  more compliance agents being hired

6
What is Affected

• All items/technology in the U.S. except
• Publicly available technology software
• Publications that are artistic or non-technical
  in nature
• Items/technology located outside of the U.S.
• Items of U.S. origin wherever located
• Foreign made items if it exceeds certain U.S.
  content or direct product of U.S. technology

7
General Provisions

• Prohibits certain exports, reexports and other
  conduct without a license, license exception or
  determination that no license is required.
• A license is a pre-approval to export. (ITAR
  EAR)
• Usually valid for 4 years
• Applies to a specific item to a specific country
• In the end, few items covered by EAR need a
  licensehowever, must go through process to make
  the determination and be able to defend decision.
  
• A Technical Assistance Agreement (TAA) (ITAR) is
  an agreement for the performance of a defense
  service or the disclosure of technical data.
  Most likely vehicle well use _at_ CSU to get
  foreign researchers approved. A TAA does not
  authorize unrestricted publication-only an
  approval for the listed foreign person to work on
  the specific project.

8
Questions to Consider

• What is the technology?
• Must know the specifics-will require help of PI
  and/or sponsor.
• Who is going to be working on project?
• What nationality and status
• Certain countries are embargoed by both agencies
  Cuba, Libya, Sudan, Iran, Iraq
• Where is the work going to be accomplished?
• On/off CSU property?
• If in CSU offices/labs-who has access?

9
Fundamental Research/Public Domain

• Information in the Public Domain is not
  controlled.
• Fundamental research in science and engineering
  at accredited institutions where resulting
  information is ordinarily published and shared
  broadly is considered Public Domain.
• However, university research will not be
  considered Fundamental Research if
• The university or its researchers accept other
  restrictions on publication, or
• The research is funded by the U.S. Government and
  specific access dissemination controls are
  applicable

10
Challenges

• EAR is not as simple as just looking at the
  nationality.
• Very dependent upon the specific technologysome
  countries can receive some items
• Time factor in determining requirements and then
  applying for and receiving licenses-could be as
  long as 90-120 daysdepending on outside agency
  review
• ITAR is simpler in that it considers all foreign
  nationals equally as dangerous, however,
  specific technology is still a major
  consideration.

11
Thoughts to Consider

• Export control laws apply whether or not there is
  a specific reference in the award document.
• Applies not only to the PI and assigned
  researchers-need to consider where information is
  accessible (labs/computers) control of
  information from other foreign persons.

12
Additional Considerations

• Technology Control Management Plans
• Outlines how the controlled technology will be
  handled/secured to prevent access by unapproved
  foreign persons. Will be required even if there
  are no foreign persons assigned to the project.
• Addresses physical security of labs other work
  areas as well as security of data on computer
  networks.

13
Recent Developments
14
Department of Commerce

• Dept of Commerce IG published report in March
  2004 titled-Export Controls May Not Stop the
  Transfer of Sensitive Technology to Foreign
  Nationals in the US
• Consortium of 12 universities led by MIT
  responded in July with a letter to DOC
  Undersecretary for Industry Security
  expressing serious concerns

15
Major Issues with DOC IG

• ..technology relating to controlled
  equipment-regardless of how use is defined-is
  subject to the deemed export provisions (and the
  requirement to license foreign nationals having
  access to that equipment) even if the research
  being conducted with that equipment is
  fundamental
• Report suggests that the deemed export policy
  should take into account all the nationalities a
  foreign national has ever maintained.

16
Department of Defense

• DOD IG published findings in March 25, 2004
  Export-Controlled Technology at Contractor,
  University and Federally Funded Research
  Development Center Facilities
• DOD program contracts officers should have
  higher level of accountability and more limited
  ability to drop clauses based on fundamental
  research exclusion.
• Actual language of clause still under
  development, therefore implications remain
  unclear.
• Concern that program contracts officers will
  default to overly restrictive language to limit
  their liability.

17
Recommended Actions

• Develop CSU policy for dealing with export
  provisions
• Outline responsibility of SP administrators,
  PIs/Depts, Export Advisor
• Will need to put more burden on PIs and the
  sponsor to assist with identification of
  technology.
• Process will involve several offices such as SP,
  PIs, Depts, Research Deans, OVPRIT and possibly
  General Counsel.
• Post policies training materials on web site
• Educate SP, Research Deans and Depts on general
  guidelines of EAR/ITAR and CSU policy.

18
Discussion Items

• Publication restrictions and impact on Grad
  students/PIs working on project
• Administrative process/burden
• TAAs and Technology Control Plans are time
  consuming to prepare. Requires additional
  interaction between PI and sponsor to determine
  what technology is controlled.
• Approval process by Federal Govt can take 8-10
  weeks.
• Security of labs/work areas/computers network

19
U.S. Munitions List (Part 121)

• Category
• I- Firearms, Close Assault Weapons, Combat
  Shotguns
• II- Guns Armament
• III- Ammunition/Ordnance
• IV- Launch Vehicles, Guided Missiles, Ballistic
  Missiles, Rockets, Torpedoes, Bombs and Mines
• V- Explosives and Energetic Materials,
  Propellants, Incendiary Agents and Their
  Constituents
• VI- Vessels of War and Special Naval Equipment
• VII- Tanks and Military Vehicles
• VIII- Aircraft and Associated Equipment
• IX- Military Training Equipment

20
U.S. Munitions List (Part 121) cont

• X- Protective Personnel Equipment
• XI- Military Electronics
• XII- Fire Control, Range Finder, Optical and
  Guidance and Control Equipment
• XIII- Auxiliary Military Equipment
• XIV- Toxicological Agents, Including Chemical
  Agents, Biological Agents, and Associated
  Equipment
• XV- Spacecraft Systems and Associated Equipment
• XVI- Nuclear Weapons, Design and Testing Related
  Items
• XVII- Classified Articles, Technical Data and
  Defense Services Not Otherwise Enumerated
• XVIII- Directed Energy Weapons
• XIX- Not Used

21
U.S. Munitions List (Part 121) cont

• XX- Submersible Vessels, Oceanographic and
  Associated Equipment
• XXI- Miscellaneous Articles

22
EAR Categories

• 0- Nuclear Materials, Facilities Equipment
  Miscellaneous
• 1- Materials, Chemicals, Microorganisms and
  Toxins
• 2- Materials Processing
• 3- Electronics Design, Development and Production
• 4- Computers
• 5- Telecommunications Information Security
• 6- Sensors and Lasers
• 7- Navigation and Avionics
• 8- Marine (ships vessels)
• 9- Propulsion Systems, Space Vehicles and Related
  Equipment