Julie Taubman Research Compliance Officer (RCO) Graduate School and Office of Research and Sponsored Programs Appalachian State University taubmanjl@appstate.edutaubmanjl@appstate.edu.

Julie TaubmanResearch Compliance Officer (RCO)Graduate School and Office of Research and Sponsored ProgramsAppalachian State Universitytaubmanjl@appstate.edu or 828-262-7981http://www.orsp.appstate.edu/compliance/export-controls

Understand essential aspects of export controls

Recognize export control issuesContact RCO for assistance

Become familiar with our export control policy and procedures

What is an export? What are export controls? Exclusions to export controls Basics of exporting items and

technology The end user and the destination country

of the export International Travel Penalties for non-compliance Red Flags and Questions

A transfer of items, software or technology to a foreign person, foreign entity or foreign destination.

Technology includes information that can be used or adopted for the development, production or use of a good. Information can take the form of technical data or technical assistance.

Examples include but are not limited to: blue prints, sketches, models, drawings, software, manuals, training and technical services

A “deemed export” is an export of technology or source code to a foreign person in the U.S.

Examples of a deemed export of technology or source code:

Visual inspection of controlled technologyOral exchange of technical informationGuidance is given on the practice or application of a technology

The definition of foreign person includes: any foreign government, foreign corporation or organization that

is not incorporated or organized to do business in the U.S., and

anyone who is not a U.S. citizen or lawful permanent resident (a green card holder).

Shipment of physical items outside of U.S.Discussion of unpublished research at a

conference in the U.S. with foreign nationals present

Visit to a lab on campus by a foreign national scholar where technical data is displayed

Participation of foreign nationals in research

Receiving an email with technical data on a foreign national’s computer

Export controls are the set of laws, policies and regulations that prohibit the unlicensed export

ofcertain items, technology and software.

Exports are controlled for various reasons: Anti-terrorism Non-proliferation of weapons National security Crime control Regional stability Foreign policy purposes Multilateral agreements

Export Administration Regulations (EAR) for dual use items

Department of Commerce, Bureau of Industry and Security (BIS)

International Traffic in Arms Regulation (ITAR) for military items

Department of State Sanction Programs Department of Treasury, Office of Foreign

Assets Control (OFAC)

Triggered Spark Gaps can be used in both a medical device that breaks up kidney stones and as a detonations device for a nuclear weapon.

Almost, but there are some exclusions

Public Domain Exclusion Published information that is generally

accessible to the public does not require a license

Education/Teaching Exclusion Instruction in science, math and engineering

courses listed in course catalogues may be conducted without a license

Fundamental Research Exclusion “Basic and applied research in science and

engineering conducted in the U.S. where the resulting information is ordinarily published and shared broadly within the scientific community ” National Security Decision Directive 189

Applies to information and software, not to tangible items

The information or software must be generated within the U.S. Once it is generated in the U.S.,

the information and software can be disseminated outside of the U.S.

Fundamental Research Exclusion does not apply if a grant or contract includes clauses that: Give a sponsor the right to approve publication; or

Restrict participation of foreign nationals in the research

Appalachian State University will fulfill its mission of teaching, research, and service in a manner that complies with federal export control and embargo regulations, while also ensuring reasonable efforts to identify situations in which the University may claim exclusions or exemptions under public domain or fundamental research.

If a proposal includes clauses restricting: access to or publication of research and

technical data; and/or limiting participation of foreign nationals

in research effortResearcher and ORSP can work with the General Counsel in an attempt to remove or modify the restrictive clauses

Research that does not qualify for the Fundamental Research Exception requires a Technology Control Plan All relevant materials, items, software or

hardware, data, or technical information must be secured from use and/or observation by foreign nationals without an export license

A template of a Technology Control Plan is available on the Export Controls website

An export license is issued by an export agency and authorizes an export, reexport or other regulated activity as specified on the application.

Determining if an export requires

an export license

Who will receive the export? What is the export? Where is the export going? What will they do with the

export?

It is illegal to conduct business

with entities or individuals that

are barred by the government.

The recipient of any exchange

of information, items ormonies should be screenedthrough governmentrestricted party lists.

Submit a Request for Restricted Party Screening

Generally, any transactions with embargoed countries will be constrained or prohibited. Very little unauthorized (license or license exception) activity can happen with these destinations.

Comprehensive sanction programs against Cuba, Iran and Sudan

Limited sanction programs against Burma, North Korea and Syria

Submit an Export Assistance Form for Technology or Goods to RCO; or

Request classification from a vendor of the item

Microsoft Program

ECCN LIC

Windows XP Embedded 5D002 ENC

Windows XP Home Edition 5D992.b.1 NLR

Windows XP Professional 5D992.b.1 NLR

Windows XP SP1, SP2 5D992.b.1 NLR

Windows XP SP3 5D992.b.1 NLR

After classifying the item or technology withthe Commerce Control List of the EAR, the

itemor technology will have an Export ControlClassification Number (ECCN) which will list:

The reasons for control Designate any specific License Exceptions and Provide a List of Items Controlled

With this information, we can determine if an

Export license is required by consulting theCountry Chart

Processing an export license can take up to 6 months

Items that require an export license or are valued over $2500 require filing of Electronic Export Information (EEI) into the Automated Export System (AES) of the Census Bureau This provides the export with an

International Transaction Number (ITN) If you have a freight forwarder file for

you, prior to shipment confirm that they will provide you with the ITN

After you submit your Travel Authorization:1. Read the Export Control Briefing. Even if

you frequently travel internationally and have never had a problem, it is a good idea to understand export controls to prevent an unintentional violation.

2. Please obtain Foreign Travel Insurance from the Office of International Education and Development.

Since export controls apply to items that are hand carried abroad, it is important to read the Laptop Briefing. In order to take a laptop abroad with you, you’ll need to:

Classify the laptop, software and stored data to show it does not need a license; or

For Appalachian owned items, determine if a Temporary Export Exception (TMP) applies, and submit a One Time Certification

For personal Items, determine if a Baggage Exception (BAG) applies.

New York Times (10/24/06) At U.S. Borders, Laptops Have No Right to Privacy

“One member who responded to our survey said she has been waiting for a year to get her laptop and its contents back,” said Susan Gurley, the group’s executive director. “She said it was randomly seized. And since she hasn’t been arrested, I assume she was just a regular business traveler, not a criminal.”

Appeals are under way in some cases, but the law is clear. “They [Customs] don’t need probable cause to perform these searches under the current law. They can do it without suspicion or without really revealing their motivations,” said Tim Kane, a Washington lawyer who is researching the matter for corporate clients.

Example of a letter from NASA:

DATETo: CUSTOMS OFFICIALSSUBJECT: HANDCARRY OF LAPTOP COMPUTER1. The individual named in this letter is a ____________________employee carrying a(______________________-owned /personally-owned) laptop computer authorizedfor temporary export under EAR Licensing Exception 740.9(a)(2)(i) TMP – Toolsof the Trade. Software loaded on the laptop is authorized for export under NLR.Data files on the laptop (do/do not) contain technical data as defined by US exportregulations and (do/do not) require authorization for export. The total value of thistemporary export is under $ 5000.002. The following information is provided:a. Individual Hand Carrying Laptop Computer: Name/Employee Numberb. Description of Laptop Computer: Make/Model Number/Serial Number…..

Failure to comply with export controls has heavy penalties: Criminal penalties:

▪ $250,00 fine for individuals and/or 10 years imprisonment;

▪ $1 million fine for businesses Civil penalties:

▪ $250,000 per transaction

In 2006 GAO study warns that the Departments of State and Commerce “have not fully assessed the potential for transfers of export-controlled information to foreign nationals in the course of U.S. university research.” The study urged closer attention to

available data on foreign students at U.S. universities.

Dr. J. Reece Roth, former University of Tennessee Professor Convicted of illegal exporting defense articles

John Carrington, previous State Senator and President of a Fingerprint Lab Received 12 months probation and a

$850,000 criminal penalty for the illegal export of crime control equipment to China through intermediaries in Italy and Hong Kong

Research in the following areas: Engineering Space sciences Computer Science Biomedical research with lasers Research with encrypted software Research with controlled chemicals,

biological agents, and toxins

Shipments of equipment to a foreign country

Training or collaboration with foreign nationals

Research activities performed in an embargoed country

Reference to export controlled technologies in an award document

Restrictions on publication rights Restrictions on foreign participation

The customer is reluctant to offer information regarding end use.

The product is incompatible with the technical level of the country to which it is being shipped, such as semiconductor manufacturing technology being shipped to a country that has no electronics industry.

The customer is unfamiliar with the terminology of a field but still requests technical data.

E-mails from domains such as Yahoo, Gmail, etc, when it would appear that the requestor should have a .edu or business.com e-mail address

Julie Taubman, Research Compliance Officer

Empowered Official: Dr. Edelma Huntley, Chief Research Officer

Susan McCracken, Director of Office of Research and Sponsored Programs

Charlotte Smith, Assistant Director of Office of Research and Sponsored Programs

How do export controls apply to a foreign student working on a sponsored project?

As long as the sponsored project doesn’t have limitations on the free publication of the results and no foreign national or national security restrictions, foreign nationals may support the fundamental research (basic and applied research) of the project.

What do you do if you don’t know the recipient of your export well or have suspicions that they may re-export to another country or another person?

If you are suspicious about an end user, one way to protect yourself and the University is to ask them to sign an End-User Certificate.

A Destination Control Statement may also be included with an export to combat re-exports.

Thanks for coming to Export Controls 101!

Thanks to NASA Kennedy Space Center for allowing us to use their

letter to Customs for the carrying of a laptop.

The certification material for laptops is adapted from the basic design and content of Stanford University’s Export ControlsPage.  We appreciate Stanford in granting us to permission to

use itscontent for the benefit of Appalachian State University.