EXPORT CONTROLS(ITAR/EAR)

Overview and Implications for Research Universities

Presented by Mark GillSenior Assistant

Office of the Senior Vice President

What is Export Control? Federal laws to protect items, technical data

and information important to the U.S. Laws have been in place for > 20 years More prominent since 9/11 resulting in

heightened scrutiny

Government’s 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

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)

Purposes Control access of certain technology to foreign nationals whether in

US or abroad. “Deemed export” will be the primary focus for research @ 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 doesn’t 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 9/11—move to DHS and more compliance

agents being hired

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

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 license—however, 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 we’ll use @ 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.

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?

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

Challenges EAR is not as simple as just looking at the

nationality. Very dependent upon the specific technology—some

countries can receive some items Time factor in determining requirements and then

applying for and receiving licenses-could be as long as 90-120 days—depending 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.

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.

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.

Recent Developments

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

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.

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.

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.

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 Gov’t can take 8-10 weeks. Security of labs/work areas/computers & network

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

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

U.S. Munitions List (Part 121) cont’XX- Submersible Vessels, Oceanographic and Associated Equipment

XXI- Miscellaneous Articles

EAR Categories0- 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