Understanding the Regulations in a University Setting EXPORT CONTROLS:

Understanding the Regulations in a University Setting

EXPORT CONTROLS:

Presentation Overview

• “Export” – what that means and how it impacts what we do at UA

• The export control regulations and government agencies that affect UA research

• Fundamental research and how it can be nullified

• Red Flags – What to look for

• Processes and Procedures

It Takes a Village

• Sponsored Projects Services• Contract & Research Support Program• Human Resources• Payroll• Procurement• IT Department • Tech Launch Arizona• Department Administration (Liaisons)• Global Initiatives• Shipping

Export - what is it and how can it occur?

• An export is the transfer of export controlled information, technical data, technology, commodities or software to a non-U.S. person (also called a “deemed export” if it occurs in the U.S.)

• Exports can occur in many ways:o Emailo Mail, shippingo Face-to-Faceo Visual inspection o Conferenceso Hand-carried items and technical information (laptops,

drawings, schematics) taken outside the U.S.

Export-what is it and how can it occur?

Affects research conducted both on campus and outside the U.S.:

• An export could occur if non-U.S. persons have access to certain data, software or equipment related to research projects on campus

• An export could occur if PI has a collaborator located outside the U.S.

• An export could occur if the PI conducts research abroad - includes taking /shipping equipment

What export regulations most likely affect your research projects?

EAR: Export Administration Regulations; U.S. Department of Commerce – Bureau of Industry and Security

ITAR: International Traffic in Arms Regulations; U.S. Department of State – Directorate of Defense Trade Controls

OFAC: U.S. Department of Treasury – Office of Foreign Assets Control

EAR

• Covers dual use items

• Items regulated have a commercial and a military use

• Covers goods, test equipment, materials and the software and technology

• Each item has an export control classification number (ECCN)

EAR Commerce Control List (CCL)

0 = Nuclear materials, facilities and equipment (and miscellaneous items)

1 = Materials, Chemicals, Microorganisms and Toxins2 = Materials Processing3 = Electronics Design Development and Production4 = Computers5 = Telecommunications and Information Security6 = Sensors and Lasers7 = Navigation and Avionics8 = Marine9 = Aerospace and Propulsion www.access.gpo.gov/bis/ear/ear_data.html

ITAR

• Covers items found on the United States Munitions List (USML)

• Includes most space related technologies although some items have been moved to the EAR

• Includes technical data related to defense articles and services

• Policy of denial for exports to certain countriesSee 22 CFR 126.1 for up-to-date list

ITAR - United States Munitions List (USML) Categories

I Firearms, Close Assault Weapons and Combat ShotgunsII Guns and ArmamentIII Ammunition/OrdnanceIV Launch Vehicles, Guided Missiles, Ballistic Missiles, Rockets, Torpedoes, Bombs and Mines V Explosives and Energetic Materials, Propellants, Incendiary Agents and Their ConstituentsVI Surface Vessels of War and Special Naval EquipmentVII Ground VehiclesVIII Aircraft and Related ArticlesIX Military Training Equipment and TrainingX Personnel Protective EquipmentXI Military ElectronicsXII Fire Control, Range Finder, Optical and Guidance and Control EquipmentXIII Materials and Miscellaneous ArticlesXIV Toxicological Agents, Including Chemical Agents, Biological Agents, and Associated

EquipmentXV Spacecraft Systems and Related ArticlesXVI Nuclear Weapons Related ArticlesXVII Classified Articles, Technical Data and Defense Services Not Otherwise EnumeratedXVIII Directed Energy WeaponsXIX Gas Turbine Engines and Associated EquipmentXX Submersible Vessels and Related ArticlesXXI Articles, Technical Data, and Defense Services Not Otherwise Enumeratedhttp://www.pmddtc.state.gov/regulations_laws/itar.html

OFAC

• Economic sanctions focus on end-user or country

• Providing “something of value” could require license

• Most highly sanctioned countries: Cuba, Iran, North Korea, Sudan, and Syria

• Iran has the most restrictionso Attending or speaking at a conferenceo Conducting research

• “Specially Designated Nationals List” – restricted entities and parties

What is a Restricted or Prohibited Party?

U.S. Government agencies (Treasury, Commerce, State) have lists of individuals & entities both in the U.S. and abroad that have committed export violations or other offenses.

• Financial dealings or export transactions with Restricted or Prohibited parties are prohibited.

• Violations are subject to severe penalties and fines.

Restricted Party Screenings (RPS) recommended depending on

transaction

Debarred Parties

Drug Traffickers

Specially Designated Nationals

Screening Restricted Parties

UA subscribes to a web-based tool called Visual Compliance and has unlimited “seats”

• Who should be screened:o Sponsorso Vendors (FSO screens new vendors nightly)o DCCso Project personnel

• UECP registers UA personnel for VC use

What’s not controlled?

• Information in the public domain

• Basic marketing descriptions

• Educational information (textbooks, etc.)

• Artistic or non-technical publications

• Information excluded under the Fundamental Research Exclusion (FRE)

Fundamental Research NSDD-189

“Fundamental Research means basic and applied research in science and

engineering, the results of which ordinarily are published and shared broadly within

the scientific community, as distinguished from proprietary research . . . the results

of which ordinarily are restricted for proprietary or national security reasons.”

Limits to FRE

If subject to export controls or other

prohibitions:

Fundamental Research does NOT cover --

Exports of Hardware, Software,

Technology

Financial Dealings with

Prohibited Parties or Entities

Export Controlled activities – “technical assistance”

Other Transactions

Involving Sanctioned

Countries or Prohibited Parties

The FRE can be lost if…

• Sponsor approval required prior to publication

• Publication of the results of the project restricted

• Other access and dissemination restrictions are in the agreement

The review process starts at the proposal stage – look for “red flags”

Red Flags

• If the solicitation or agreement states the topic/project is: o Specially designed for militaryo Related to space technology o ITAR controlledo Proprietary in nature

• If the sponsor will provide technical data or equipment

• If the funding agency, sponsor, collaborator, subcontractor, or consultant is:o Military or space related (e.g., Army, ONR, AFRL, DARPA,

NASA)o A non-U.S. entityo Related to an SBIR, STTR projecto An industry defense contractor (e.g., Raytheon)

More Red Flags

If the agreement has language that includes:• The DFARS 7000 clause • The DFARS 7012 clause• Other than “Distribution A”• Foreign National restrictions / notifications• Restrictions on sanctioned country participation • Export control language found in multiple areas of

the agreement: o Compliance, Export/Import Controls,

Miscellaneous, Confidentiality• Overly restrictive export control language

Example of a Topic Subject to the ITAR

Example of a BAA Intended as Fundamental Research

As of the date of publication of this BAA, the Government expects that program goals as described herein may be met by proposers intending to perform fundamental research. The Government does not anticipate applying publication restrictions of any kind to individual awards for fundamental research that may result from this BAA. Notwithstanding this statement of expectation, the Government is not prohibited from considering and selecting research proposals t hat, while perhaps not qualifying as fundamental research under the foregoing definition, still meet the BAA criteria for submissions. If proposals are selected for award that offer other a than fundamental research solution, the Government will either work with the proposer to modify the proposed statement of work to

bring the research back into line with fundamental research or else the proposer will agree to restrictions in order to receive and award.

Proposers should indicate in their proposal whether they believe the scope of the research clauses will be included in resultant awards for non-fundamental research to prescribe publication requirements and other restrictions, as appropriate.

DFAR 252.204-7000 (abridged)Aug 2013

(a) The Contractor shall not release to anyone outside the Contractor's organization any unclassified information, regardless of medium unless:

1) The Contracting Officer has given prior written approval;

2) The information is otherwise in the public domain before the date of release; or

3) The information results from or arises during the performance of a project that has been scoped and negotiated by the contracting activity with the contractor and research performer and determined in writing by the contracting officer to be fundamental research in accordance with NSDD189… and the USD memoranda on Fundamental Research, dated May 24, 2010, and on Contracted Fundamental Research, dated June 26, 2008….

DFAR 252.204-7012Nov 2013

• If in contract with DFARS 7000 clause, try to negotiate clauses out. Otherwise…o Project information will be considered

Controlled Technical Information (CTI)o PI must adhere to specific safeguards for

protection of data (extensive)o Reporting requirements exist

• If 7000 clause is 2013 version, no restrictions if Contracting Officer will put in writing UA effort is fundamental research

If there are red flags:

• UECP should be notified at the proposal stage if :

• Project will take place in an OFAC sanctioned country (Cuba, Iran, Syria, Sudan, North Korea)

• There is any indication the work will be ITAR controlled

• UECP should be notified at the award stage if:• There are any red flags and “yes” answers on the

Checklist

• Agreement and checklist should be forwarded to UECP for review – we need the entire contract, the SOW, and flow down clauses

UECP Review

• A TCP and/or export license may be required

• Agreement will not be signed until a license and/or TCP are in place and export training completed

• If TCP required, project should be marked as such within UAccess system

• Proposals/awards that contain ITAR data cannot be transferred via email or uploaded into UAccess! Documents should be securely stored in a locked file cabinet.

Recap of Key Concerns

• Does the solicitation or agreement say that the topic or project is ITAR controlled?

• Are there publication restrictions (7000 clause) or foreign national restrictions?

• Will a foreign collaborator be involved in the project?

• Will the project be conducted outside the U.S.?• Will equipment or materials be shipped outside

the U.S.?• Is the sponsor a DoD agency and/or military

related?• Is the sponsor from industry or a defense

contractor?• Will any export controlled data, materials, or

equipment be provided by sponsor?

We Can’t Do it Without You

It has been said that it takes a “village” to manage export controls, and the UECP cannot do this without your support and assistance. Working together we can lower the risk of possible export control violations, and become the standard for “best practices” in university export control programs.

UECP Contact Information

Export Control Program general email: [email protected]

Kay Ellis, Director, Export Control Program Phone: 520-626-2437 email: [email protected]

Keith Corson, Export Control Analyst Phone: 520-626-5865 email: [email protected]

Shannon Woodman, Export Control Analyst Phone: 520-621-0348 email: [email protected]

Additional information can be found at http://orcr.arizona.edu/ec