Are Export Controls Exclusions for Universities a Real Safe Harbor?

Are Export Controls Exclusions for Universities a Real Safe Harbor?

John Chinn

Director

Office of Research Compliance Administration

East Carolina University

John Chinn

Director

Office of Research Compliance Administration

East Carolina University

Higher Education Compliance Conference June 12-15, Austin TX

Purpose of Export ControlPurpose of Export ControlExport Control Laws have been in existence since 1940’s. Their

purpose is to:

• Restrict the exporting of goods and technology that could contribute to the military potential of U.S. adversaries

• To prevent the proliferation of WMDs

• To protect the national security interest of the U.S.

Export Control Laws have been in existence since 1940’s. Their purpose is to:

• Restrict the exporting of goods and technology that could contribute to the military potential of U.S. adversaries

• To prevent the proliferation of WMDs

• To protect the national security interest of the U.S.• To protect the national security interest of the U.S.

• To protect the economic interest of the U.S.

• To protect commodities in short supply

• Comply with U.S. trade agreements and trade sanctions against other nations

• Prevent terrorism

• To protect the national security interest of the U.S.

• To protect the economic interest of the U.S.

• To protect commodities in short supply

• Comply with U.S. trade agreements and trade sanctions against other nations

• Prevent terrorism

Federal Agencies andTheir Regulations

Federal Agencies andTheir Regulations

Commerce� Export Administration Regulations (EAR)

State Department� International Traffic in Arms Regulations (ITAR)

Commerce� Export Administration Regulations (EAR)

State Department� International Traffic in Arms Regulations (ITAR)� International Traffic in Arms Regulations (ITAR)

U.S. Treasury - Office of Foreign Assets Control (OFAC)

� Foreign Corrupt Practice Act

� Anti-Boycott Act

� False Statement Act

� International Traffic in Arms Regulations (ITAR)

U.S. Treasury - Office of Foreign Assets Control (OFAC)

� Foreign Corrupt Practice Act

� Anti-Boycott Act

� False Statement Act

What is an Export?What is an Export?• Sending or Taking Goods from the U.S. to outside the

U.S.o Any transfer to any person or entity of goods, technology, or

software by physical, electronica, oral or visual means with the knowledge that the items will be shipped, transferred or transmitted to a non-U.S. entity or individual.

• Performing Services outside the U.S. for the benefit of

• Sending or Taking Goods from the U.S. to outside the

U.S.o Any transfer to any person or entity of goods, technology, or

software by physical, electronica, oral or visual means with the knowledge that the items will be shipped, transferred or transmitted to a non-U.S. entity or individual.

• Performing Services outside the U.S. for the benefit of • Performing Services outside the U.S. for the benefit of

foreign nationals or nations.

• Providing Technology or Technical Data to foreign

nationals outside the U.S.

• Any transfer of goods, technology, or software, by any means to a foreign national, embassy or affiliate.

• Performing Services outside the U.S. for the benefit of

foreign nationals or nations.

• Providing Technology or Technical Data to foreign

nationals outside the U.S.

• Any transfer of goods, technology, or software, by any means to a foreign national, embassy or affiliate.

What is a Foreign NationalWhat is a Foreign National

• Non-US Citizens

• Non-US Green Card Holders

• No Permanent Resident Status

• Specially Designated Nationals (SDN)

• Non-US Citizens

• Non-US Green Card Holders

• No Permanent Resident Status

• Specially Designated Nationals (SDN)• Specially Designated Nationals (SDN)• Specially Designated Nationals (SDN)

Commerce Country List

Table listing countries and the type of exports prohibited

Deemed ExportsDeemed Exports

Exporting of goods, or services, or technology and/or technical data

Exporting of goods, or services, or technology and/or technical data technology and/or technical data

inside the U.S. to a foreign national inside the U.S.

technology and/or technical data inside the U.S. to a foreign

national inside the U.S.

Deemed ExportsDeemed Exports• Any transfer to a citizen or permanent

resident of a foreign country* regardless of where the transfer occurs, is deemed to be an export to that person’s home country.

• Any transfer to a citizen or permanent resident of a foreign country* regardless of where the transfer occurs, is deemed to be an export to that person’s home country.

• Release of technology or source code to foreign nationals in the US or abroad.

* Does not include US citizens, individuals with permanent

resident status, or protected individuals.

• Release of technology or source code to foreign nationals in the US or abroad.

* Does not include US citizens, individuals with permanent

resident status, or protected individuals.

Dual UseDual UseGoods, services, technology, or technical data that have both civil/commercial or military applications

Examples

• GPS

• Genetic research data about genes that regulate growth of plants

Goods, services, technology, or technical data that have both civil/commercial or military applications

Examples

• GPS

• Genetic research data about genes that regulate growth of plantsgrowth of plants

Rogue Nations prohibited from Dual use exports

Cuba, Iran, North Korea, Sudan Lybia, & Syria

growth of plants

Rogue Nations prohibited from Dual use exports

Cuba, Iran, North Korea, Sudan Lybia, & Syria

Re-ExportRe-ExportGoods, services, software,

information, technologies

that are exported with a

License to a foreign entity

Goods, services, software,

information, technologies

that are exported with a

License to a foreign entity License to a foreign entity

which then transfer to

another foreign entity.

License to a foreign entity

which then transfer to

another foreign entity.

Penalties for Non-compliancePenalties for Non-complianceITAR

Criminal Up to $1M per violation for the University. For individuals, up to $1M and/or up to 10 years in prison per violation.

Civil Seizure and forfeiture of articles, revocation of exporting privileges, fines up to $500K per violation for both the University and individuals.

ITAR

Criminal Up to $1M per violation for the University. For individuals, up to $1M and/or up to 10 years in prison per violation.

Civil Seizure and forfeiture of articles, revocation of exporting privileges, fines up to $500K per violation for both the University and individuals.

EAR

Criminal Up to $1M per violation for the University. For individuals, up to $250K and/or up to 10 years in prison, per violation.

Civil Loss of export privileges, fines of $10K to $120K per violation for both University and individual.

EAR

Criminal Up to $1M per violation for the University. For individuals, up to $250K and/or up to 10 years in prison, per violation.

Civil Loss of export privileges, fines of $10K to $120K per violation for both University and individual.

Why Universities are at RiskWhy Universities are at Risk

• Recent export control infractions associated with Universities

• Many international students, scholars, and visitors visit or study at universities

• Universities are a major source of new

• Recent export control infractions associated with Universities

• Many international students, scholars, and visitors visit or study at universities

• Universities are a major source of new • Universities are a major source of new technologies that can be used for civilian

and military purposes

• Universities are increasingly conducting business with foreign countries, nationals,

or entities and

• University researchers have many foreign collaborators.

• Universities are a major source of new technologies that can be used for civilian

and military purposes

• Universities are increasingly conducting business with foreign countries, nationals,

or entities and

• University researchers have many foreign collaborators.

�Viruses�Bacteria�Toxins�Laboratory Equipment/Supplies

�Computers

�Viruses�Bacteria�Toxins�Laboratory Equipment/Supplies

�Computers

These items may be

commonly exported

by your researchers

and may be subject to

These items may be

commonly exported

by your researchers

and may be subject to

Exports to Foreign Collaborators

�Computers�Diagnostic kits�GPS�Cameras�Lasers�Software�Nano technology

�Computers�Diagnostic kits�GPS�Cameras�Lasers�Software�Nano technology

and may be subject to

EAR or ITAR

regulations.

and may be subject to

EAR or ITAR

regulations.

12

I-129 and H1B1 Visa Certifications

I-129 and H1B1 Visa Certifications

Requires certification no license is

needed. To Certify, meet with foreign

national to:

• Verify employee is within employment

Requires certification no license is

needed. To Certify, meet with foreign

national to:

• Verify employee is within employment • Verify employee is within employment

exclusion

• Understand role at University

• Provide training on export control

regulations and university policy

• Develop a management plan if needed

• Verify employee is within employment

exclusion

• Understand role at University

• Provide training on export control

regulations and university policy

• Develop a management plan if needed

Strategies for UniversitiesStrategies for Universities

• Public Domain Exclusion

• Employment Exclusion

• Research Exclusion

• Educational Exclusions

• Public Domain Exclusion

• Employment Exclusion

• Research Exclusion

• Educational Exclusions• Educational Exclusions

• Contract Negotiations

• Exporting License

• Export Management Compliance Program (EMCP)

• Educational Exclusions

• Contract Negotiations

• Exporting License

• Export Management Compliance Program (EMCP)

Public Domain ExclusionPublic Domain ExclusionNo license is required to export or transfer

informationinformationinformationinformation and research results research results research results research results that are

generally available to the interested public

through:

• Libraries, bookstores, or newsstands,

• Trade shows, meetings, seminars in the U.S.

No license is required to export or transfer

informationinformationinformationinformation and research results research results research results research results that are

generally available to the interested public

through:

• Libraries, bookstores, or newsstands,

• Trade shows, meetings, seminars in the U.S. • Trade shows, meetings, seminars in the U.S. open to the public,

• Published in certain patent applications, or

• Websites accessible to the public.

Note: the public domain exclusion applies to

information and research results -- not physical

equipment, substances, software, etc.

• Trade shows, meetings, seminars in the U.S. open to the public,

• Published in certain patent applications, or

• Websites accessible to the public.

Note: the public domain exclusion applies to

information and research results -- not physical

equipment, substances, software, etc.

Employment ExclusionEmployment Exclusion

No license is required to share information

subject to export control laws with a foreign

national if the foreign national:

• is a full-time, bona-fide employee of the University;

• is not a national of certain countries of

No license is required to share information

subject to export control laws with a foreign

national if the foreign national:

• is a full-time, bona-fide employee of the University;

• is not a national of certain countries of • is not a national of certain countries of concern;

• has a permanent address in the U.S. while employed at the University; and

• has been informed in writing not to transfer the information to other foreign

nationals.

• is not a national of certain countries of concern;

• has a permanent address in the U.S. while employed at the University; and

• has been informed in writing not to transfer the information to other foreign

nationals.

Fundamental Research ExclusionFundamental Research Exclusion

Basic or applied research in science and/or engineering at an accredited

institution of higher learning in the U.S.

Basic or applied research in science and/or engineering at an accredited

institution of higher learning in the U.S. institution of higher learning in the U.S. where the resulting information is

ordinarily published and shared broadly in the scientific community

institution of higher learning in the U.S. where the resulting information is

ordinarily published and shared broadly in the scientific community

Fundamental Research Exclusion Applies To

Fundamental Research Exclusion Applies To

1. Information not to items or materials

2. Resulting from or arising during research

3. Basic and applied research in science and engineering

4. Conducted at an accredited institution of higher learning located in the U.S.

1. Information not to items or materials

2. Resulting from or arising during research

3. Basic and applied research in science and engineering

4. Conducted at an accredited institution of higher learning located in the U.S.learning located in the U.S.

5. the information is ordinarily published and shared broadly in the scientific community

6. Is not subject to proprietary or U.S. government publication or access dissemination controls

learning located in the U.S.

5. the information is ordinarily published and shared broadly in the scientific community

6. Is not subject to proprietary or U.S. government publication or access dissemination controls

It is not Fundamental Research ifIt is not Fundamental Research if

1. The researcher accepts any restriction on publication of the scientific or technical information resulting from the research.

2. The research is funded by the U.S. Government and specific access & dissemination controls are applicable.

1. The researcher accepts any restriction on publication of the scientific or technical information resulting from the research.

2. The research is funded by the U.S. Government and specific access & dissemination controls are applicable.applicable.

3. The research restricts access by foreign nationals.

4. The research uses/incorporates/develops controlled materials in the research.

5. The researcher makes a “side deal” with a sponsor.

applicable.

3. The research restricts access by foreign nationals.

4. The research uses/incorporates/develops controlled materials in the research.

5. The researcher makes a “side deal” with a sponsor.

Educational Information Exclusion

Educational Information Exclusion

� ITAR –Export Controls do not apply to

information concerning ““““general scientific, mathematical or engineering principles commonly taught in schools, colleges and

� ITAR –Export Controls do not apply to

information concerning ““““general scientific, mathematical or engineering principles commonly taught in schools, colleges and commonly taught in schools, colleges and

universities.””””

� EAR –Export Controls do not apply to

““““educational information”””” released by instruction in catalog courses and associated teaching laboratories.

commonly taught in schools, colleges and

universities.””””

� EAR –Export Controls do not apply to

““““educational information”””” released by instruction in catalog courses and associated teaching laboratories.

Contractual LanguageContractual Language

When there are restrictions in publication language in contracts or

restricts foreign Nationals from

When there are restrictions in publication language in contracts or

restricts foreign Nationals from restricts foreign Nationals from participating, or language that takes

universities out of the exclusions, these are best if negotiated out

restricts foreign Nationals from participating, or language that takes

universities out of the exclusions, these are best if negotiated out

Contractual LanguageContractual LanguagePublication and proprietary information or

technology restrictions• Sponsor requires approval of any publications. Delays

for patenting or review are acceptable.

o Negotiate these language out of contract

o If not possible, develop a technology control plan or get an

Publication and proprietary information or technology restrictions

• Sponsor requires approval of any publications. Delays for patenting or review are acceptable.

o Negotiate these language out of contract

o If not possible, develop a technology control plan or get an o If not possible, develop a technology control plan or get an export control license

• If sponsor restricts access to or publication of any proprietary information or technology they supply for a research project these supplied items could fall under export controls even if the research results qualify as fundamental research.

o If not possible, develop a technology control plan or get an export control license

• If sponsor restricts access to or publication of any proprietary information or technology they supply for a research project these supplied items could fall under export controls even if the research results qualify as fundamental research.

Contractual LanguageContractual Language

Restrictions on foreign national in contract

• Destroys universities’ exclusions from

Restrictions on foreign national in contract

• Destroys universities’ exclusions from export control

• Could be subject to anti-boycott policy from Treasury Department

export control

• Could be subject to anti-boycott policy from Treasury Department

Export LicenseExport License

Required for when exporting an item that is subject to the EAR

and does not fall under

Required for when exporting an item that is subject to the EAR

and does not fall under and does not fall under Fundamental Research or Education Exemption or

contractual language cannot be negotiated

and does not fall under Fundamental Research or Education Exemption or

contractual language cannot be negotiated

Export Management and Compliance Plans (EMCP)

Export Management and Compliance Plans (EMCP)

• Reinforce senior management commitment

• Provide management structure and organization for export control.

• Enhance accountability for export control tasks by identifying A responsible official is responsible for overall effectiveness of the

EMCP.

• Provide compliance safeguards.

• Provide written instructions for export transactions against general prohibitions of exports, re-exports and selected transfers to certain

end-uses and end-users.

• Reinforce senior management commitment

• Provide management structure and organization for export control.

• Enhance accountability for export control tasks by identifying A responsible official is responsible for overall effectiveness of the

EMCP.

• Provide compliance safeguards.

• Provide written instructions for export transactions against general prohibitions of exports, re-exports and selected transfers to certain

end-uses and end-users.end-uses and end-users.

• Serve as a vehicle to communicate and raise questions about the legitimacy of an export control situation.

• Provide personnel with tools to help them ensure they are performing their export control functions accurately and consistently.

• Identify transactions that could normally be exported without a license, but because of the end-use or end-user, require a license.

• Streamline the process and reduce time spent on compliance activities when employees have written instructions, tools and on-going

training.

• Protect employees through training and awareness programs from inadvertently violating the EAR.

end-uses and end-users.

• Serve as a vehicle to communicate and raise questions about the legitimacy of an export control situation.

• Provide personnel with tools to help them ensure they are performing their export control functions accurately and consistently.

• Identify transactions that could normally be exported without a license, but because of the end-use or end-user, require a license.

• Streamline the process and reduce time spent on compliance activities when employees have written instructions, tools and on-going

training.

• Protect employees through training and awareness programs from inadvertently violating the EAR.

BIS Elements of an effective EMCPBIS Elements of an effective EMCP1.1.1.1. Management Commitment: management must establish written export Management Commitment: management must establish written export Management Commitment: management must establish written export Management Commitment: management must establish written export

compliance standards, commit sufficient resources for the export compliance standards, commit sufficient resources for the export compliance standards, commit sufficient resources for the export compliance standards, commit sufficient resources for the export

compliance program, and ensure appropriate official(s) are designated compliance program, and ensure appropriate official(s) are designated compliance program, and ensure appropriate official(s) are designated compliance program, and ensure appropriate official(s) are designated

with responsibility for the export compliance program to ensure with responsibility for the export compliance program to ensure with responsibility for the export compliance program to ensure with responsibility for the export compliance program to ensure

adherence to export control laws and regulations.adherence to export control laws and regulations.adherence to export control laws and regulations.adherence to export control laws and regulations.

2.2.2.2. Continuous Risk Assessment of the Export ProgramContinuous Risk Assessment of the Export ProgramContinuous Risk Assessment of the Export ProgramContinuous Risk Assessment of the Export Program

3.3.3.3. Formal Written Export Management and Compliance Program: Effective Formal Written Export Management and Compliance Program: Effective Formal Written Export Management and Compliance Program: Effective Formal Written Export Management and Compliance Program: Effective

implementation and adherence to written policies and operational implementation and adherence to written policies and operational implementation and adherence to written policies and operational implementation and adherence to written policies and operational

procedures.procedures.procedures.procedures.

4.4.4.4. Ongoing Compliance Training and AwarenessOngoing Compliance Training and AwarenessOngoing Compliance Training and AwarenessOngoing Compliance Training and Awareness

5.5.5.5. Cradle to Grave Export Compliance Security: Screening of employees, Cradle to Grave Export Compliance Security: Screening of employees, Cradle to Grave Export Compliance Security: Screening of employees, Cradle to Grave Export Compliance Security: Screening of employees,

1.1.1.1. Management Commitment: management must establish written export Management Commitment: management must establish written export Management Commitment: management must establish written export Management Commitment: management must establish written export

compliance standards, commit sufficient resources for the export compliance standards, commit sufficient resources for the export compliance standards, commit sufficient resources for the export compliance standards, commit sufficient resources for the export

compliance program, and ensure appropriate official(s) are designated compliance program, and ensure appropriate official(s) are designated compliance program, and ensure appropriate official(s) are designated compliance program, and ensure appropriate official(s) are designated

with responsibility for the export compliance program to ensure with responsibility for the export compliance program to ensure with responsibility for the export compliance program to ensure with responsibility for the export compliance program to ensure

adherence to export control laws and regulations.adherence to export control laws and regulations.adherence to export control laws and regulations.adherence to export control laws and regulations.

2.2.2.2. Continuous Risk Assessment of the Export ProgramContinuous Risk Assessment of the Export ProgramContinuous Risk Assessment of the Export ProgramContinuous Risk Assessment of the Export Program

3.3.3.3. Formal Written Export Management and Compliance Program: Effective Formal Written Export Management and Compliance Program: Effective Formal Written Export Management and Compliance Program: Effective Formal Written Export Management and Compliance Program: Effective

implementation and adherence to written policies and operational implementation and adherence to written policies and operational implementation and adherence to written policies and operational implementation and adherence to written policies and operational

procedures.procedures.procedures.procedures.

4.4.4.4. Ongoing Compliance Training and AwarenessOngoing Compliance Training and AwarenessOngoing Compliance Training and AwarenessOngoing Compliance Training and Awareness

5.5.5.5. Cradle to Grave Export Compliance Security: Screening of employees, Cradle to Grave Export Compliance Security: Screening of employees, Cradle to Grave Export Compliance Security: Screening of employees, Cradle to Grave Export Compliance Security: Screening of employees, 5.5.5.5. Cradle to Grave Export Compliance Security: Screening of employees, Cradle to Grave Export Compliance Security: Screening of employees, Cradle to Grave Export Compliance Security: Screening of employees, Cradle to Grave Export Compliance Security: Screening of employees,

contractors, customers, products, and transactions and implementation contractors, customers, products, and transactions and implementation contractors, customers, products, and transactions and implementation contractors, customers, products, and transactions and implementation

of compliance safeguards throughout the export life cycle including of compliance safeguards throughout the export life cycle including of compliance safeguards throughout the export life cycle including of compliance safeguards throughout the export life cycle including

product development, jurisdiction, classification, sales, license product development, jurisdiction, classification, sales, license product development, jurisdiction, classification, sales, license product development, jurisdiction, classification, sales, license

decisions, supply chain, servicing channels, and postdecisions, supply chain, servicing channels, and postdecisions, supply chain, servicing channels, and postdecisions, supply chain, servicing channels, and post----shipment activity.shipment activity.shipment activity.shipment activity.

6.6.6.6. Adherence to Recordkeeping Regulatory RequirementsAdherence to Recordkeeping Regulatory RequirementsAdherence to Recordkeeping Regulatory RequirementsAdherence to Recordkeeping Regulatory Requirements

7.7.7.7. Internal and External Compliance Monitoring and Periodic AuditsInternal and External Compliance Monitoring and Periodic AuditsInternal and External Compliance Monitoring and Periodic AuditsInternal and External Compliance Monitoring and Periodic Audits

8.8.8.8. Internal Program for Handling Compliance Problems, including Internal Program for Handling Compliance Problems, including Internal Program for Handling Compliance Problems, including Internal Program for Handling Compliance Problems, including

Reporting Export ViolationsReporting Export ViolationsReporting Export ViolationsReporting Export Violations

9.9.9.9. Completing Appropriate Corrective Actions in Response to Export Completing Appropriate Corrective Actions in Response to Export Completing Appropriate Corrective Actions in Response to Export Completing Appropriate Corrective Actions in Response to Export

ViolationsViolationsViolationsViolations

5.5.5.5. Cradle to Grave Export Compliance Security: Screening of employees, Cradle to Grave Export Compliance Security: Screening of employees, Cradle to Grave Export Compliance Security: Screening of employees, Cradle to Grave Export Compliance Security: Screening of employees,

contractors, customers, products, and transactions and implementation contractors, customers, products, and transactions and implementation contractors, customers, products, and transactions and implementation contractors, customers, products, and transactions and implementation

of compliance safeguards throughout the export life cycle including of compliance safeguards throughout the export life cycle including of compliance safeguards throughout the export life cycle including of compliance safeguards throughout the export life cycle including

product development, jurisdiction, classification, sales, license product development, jurisdiction, classification, sales, license product development, jurisdiction, classification, sales, license product development, jurisdiction, classification, sales, license

decisions, supply chain, servicing channels, and postdecisions, supply chain, servicing channels, and postdecisions, supply chain, servicing channels, and postdecisions, supply chain, servicing channels, and post----shipment activity.shipment activity.shipment activity.shipment activity.

6.6.6.6. Adherence to Recordkeeping Regulatory RequirementsAdherence to Recordkeeping Regulatory RequirementsAdherence to Recordkeeping Regulatory RequirementsAdherence to Recordkeeping Regulatory Requirements

7.7.7.7. Internal and External Compliance Monitoring and Periodic AuditsInternal and External Compliance Monitoring and Periodic AuditsInternal and External Compliance Monitoring and Periodic AuditsInternal and External Compliance Monitoring and Periodic Audits

8.8.8.8. Internal Program for Handling Compliance Problems, including Internal Program for Handling Compliance Problems, including Internal Program for Handling Compliance Problems, including Internal Program for Handling Compliance Problems, including

Reporting Export ViolationsReporting Export ViolationsReporting Export ViolationsReporting Export Violations

9.9.9.9. Completing Appropriate Corrective Actions in Response to Export Completing Appropriate Corrective Actions in Response to Export Completing Appropriate Corrective Actions in Response to Export Completing Appropriate Corrective Actions in Response to Export

ViolationsViolationsViolationsViolations

Suggested Elements of an EMCP for Universities

Suggested Elements of an EMCP for Universities

1. Management commitment communicated campus-wide

2. Mandatory training and education programs

3. policies for periodic training

1. Management commitment communicated campus-wide

2. Mandatory training and education programs

3. policies for periodic training3. policies for periodic training

4. Records and documentation keeping policies

5. Point of contact for compliance monitoring

6. Foreign scholar screening process

7. Laptop and GPS screening process

8. Visual compliance screening process

3. policies for periodic training

4. Records and documentation keeping policies

5. Point of contact for compliance monitoring

6. Foreign scholar screening process

7. Laptop and GPS screening process

8. Visual compliance screening process

ScreeningScreeningBIS elements of an EMCP

• Screening of employees, contractors, Screening of employees, contractors, Screening of employees, contractors, Screening of employees, contractors,

customers, products, and customers, products, and customers, products, and customers, products, and transactionstransactionstransactionstransactions

BIS elements of an EMCP

• Screening of employees, contractors, Screening of employees, contractors, Screening of employees, contractors, Screening of employees, contractors,

customers, products, and customers, products, and customers, products, and customers, products, and transactionstransactionstransactionstransactions

Additional elements of an EMCP

• Foreign Scholar Screening

• Laptop and GPS Screening

• Visual Compliance Screening of Exports

Additional elements of an EMCP

• Foreign Scholar Screening

• Laptop and GPS Screening

• Visual Compliance Screening of Exports

Batch Screening IssuesBatch Screening Issues• What to screen

• Staff

• Faculty

• Students

• Vendors

• Profiling vs. everyone

• Costs

• Time and Effort to screen

• What to screen

• Staff

• Faculty

• Students

• Vendors

• Profiling vs. everyone

• Costs

• Time and Effort to screen• Time and Effort to screen

• Notification of screening

• Privacy and Confidentiality

• Name and Address

• Foia requests

• Processing results

• False positives

• True positives

• Reporting Results

• Time and Effort to screen

• Notification of screening

• Privacy and Confidentiality

• Name and Address

• Foia requests

• Processing results

• False positives

• True positives

• Reporting Results

ShippingShipping

Shipments outside the US should

be checked for:

•Item’s ECCN number or if EAR99

Shipments outside the US should

be checked for:

•Item’s ECCN number or if EAR99

•If a license is needed for shipment

•If the recipient is on a prohibited export control list

•End use of the item shipped

•If a license is needed for shipment

•If the recipient is on a prohibited export control list

•End use of the item shipped

ShippingShippingThe Census Bureau monitors U.S. export

activity. Exporters are required to file a

Shipper’s Export Declaration (SED) with the

Census Bureau when:

• Any single item in a shipment is valued over $2,500 or

• An export license is needed for an item or

The Census Bureau monitors U.S. export

activity. Exporters are required to file a

Shipper’s Export Declaration (SED) with the

Census Bureau when:

• Any single item in a shipment is valued over $2,500 or

• An export license is needed for an item or• An export license is needed for an item or

• Your destination is a restricted territory (country facing strained relations with

the U.S.).

For a fee, most carriers can file the SED for

you but your university may be able to file for

no charge. A copy of your commercial invoice

is needed and allow enough time to file.

• An export license is needed for an item or

• Your destination is a restricted territory (country facing strained relations with

the U.S.).

For a fee, most carriers can file the SED for

you but your university may be able to file for

no charge. A copy of your commercial invoice

is needed and allow enough time to file.

ShippingShipping

• DO NOT UNDER VALUE items on your

commercial invoice to avoid customs fees at

your destination!

• Unusually low values are flagged by the

Census Bureau and can result in an audit. If

you are found under valuing your items you

• DO NOT UNDER VALUE items on your

commercial invoice to avoid customs fees at

your destination!

• Unusually low values are flagged by the

Census Bureau and can result in an audit. If

you are found under valuing your items you you are found under valuing your items you

could be subject to monetary penalties

and/or loss of export privileges.

• If customs officials at your destination

catch you under invoicing you may be subject

to fines or even cargo seizure. In extreme

cases you may be barred from exporting to

that country in the future.

you are found under valuing your items you

could be subject to monetary penalties

and/or loss of export privileges.

• If customs officials at your destination

catch you under invoicing you may be subject

to fines or even cargo seizure. In extreme

cases you may be barred from exporting to

that country in the future.

ShippingShippingInformation to consider when shipping

equipment and samples:

•What is being shipped?

• Is there a ECCN?

•Where is the shipment’s destination?

• What are the destination country’s restrictions

• Is the destination Syria, Iran, Sudan, Cuba, or North

Information to consider when shipping

equipment and samples:

•What is being shipped?

• Is there a ECCN?

•Where is the shipment’s destination?

• What are the destination country’s restrictions

• Is the destination Syria, Iran, Sudan, Cuba, or North • Is the destination Syria, Iran, Sudan, Cuba, or North

Korea? Effective Feb. 2011 includes Libya

•Who is the recipient?

• Does the recipient have any prohibitions or

restrictions?

•What is the purpose of the shipment?

• Does it fall under any of the exclusion?

• Is a license needed to ship?

• Is the destination Syria, Iran, Sudan, Cuba, or North

Korea? Effective Feb. 2011 includes Libya

•Who is the recipient?

• Does the recipient have any prohibitions or

restrictions?

•What is the purpose of the shipment?

• Does it fall under any of the exclusion?

• Is a license needed to ship?

Shipping Destination Considerations

Shipping Destination Considerations

• Always check with your collaborator

regarding import permits for your

destination.

• If an import permit is not required always

check if there are other relevant documents

needed.

• Always check with your collaborator

regarding import permits for your

destination.

• If an import permit is not required always

check if there are other relevant documents

needed.needed.

• Keep in mind duties and taxes for your

destination as well. These can be checked in

advance at:

http://www.export.gov/logistics/country_

tariff_info.asp

needed.

• Keep in mind duties and taxes for your

destination as well. These can be checked in

advance at:

http://www.export.gov/logistics/country_

tariff_info.asp

Record KeepingRecord KeepingThe exporter must create and maintain

records for 5 years from date of export.

Records include the following:

• Commercial Invoice

• Air Waybill

The exporter must create and maintain

records for 5 years from date of export.

Records include the following:

• Commercial Invoice

• Air Waybill• Air Waybill

• Shippers Export Declaration

• EAR/ITAR Export License

• Dangerous Goods Declaration

• Air Waybill

• Shippers Export Declaration

• EAR/ITAR Export License

• Dangerous Goods Declaration

TravelingTravelingInformation needed of foreign travelers:

• Destination of traveler

• Purpose of the travel

• Duration of travel

• Items taken by traveler

Advice to foreign travelers:

Information needed of foreign travelers:

• Destination of traveler

• Purpose of the travel

• Duration of travel

• Items taken by traveler

Advice to foreign travelers:Advice to foreign travelers:

• Keep laptops and other technologies

secure

• Keep abreast of world news

• Use common sense and stay alert

Advice to foreign travelers:

• Keep laptops and other technologies

secure

• Keep abreast of world news

• Use common sense and stay alert

LaptopsLaptops

Travelers who need to take their

laptops out of the country in

connection with university business may

do so as long as:

• the country of travel is not under

Travelers who need to take their

laptops out of the country in

connection with university business may

do so as long as:

• the country of travel is not under • the country of travel is not under U.S. sanctions;

• the laptop is a "tool of trade"; and

• the laptop remains in their possession and control at all times.

• the laptop does not contain any

controlled information.

• the country of travel is not under U.S. sanctions;

• the laptop is a "tool of trade"; and

• the laptop remains in their possession and control at all times.

• the laptop does not contain any

controlled information.

TrainingTrainingProvide Export Control Briefing to:

• Foreign Travelers

• Shippers

• Foreign scholars

• Departments with identified foreign nationals

Provide Export Control Briefing to:

• Foreign Travelers

• Shippers

• Foreign scholars

• Departments with identified foreign nationals• Departments with identified foreign nationals

• Office of International Studies

• Departments and Laboratories where

exclusions does not apply

• Departments with ECCN classified

technologies

• Departments with identified foreign nationals

• Office of International Studies

• Departments and Laboratories where

exclusions does not apply

• Departments with ECCN classified

technologies

Case Study #1

A marine biologist, in connection with her research off the coast of Madagascar, takes with her to Madagascar seafloor navigation equipment for depths exceeding 1000 m and positioning accuracy within 10 m of a given point.

• The "Public Domain" exclusion applies only to information, not to equipment such as the seafloor navigation equipment.

Case Study #1

A marine biologist, in connection with her research off the coast of Madagascar, takes with her to Madagascar seafloor navigation equipment for depths exceeding 1000 m and positioning accuracy within 10 m of a given point.

• The "Public Domain" exclusion applies only to information, not to equipment such as the seafloor navigation equipment. seafloor navigation equipment.

• The "Fundamental Research" exclusion does not apply because the research is to be conducted abroad.

• The seafloor navigation equipment with the specifications listed is regulated under EAR's CCL and there is no license exception.

A license is required to take this equipment out A license is required to take this equipment out A license is required to take this equipment out A license is required to take this equipment out of the US to Madagascar.of the US to Madagascar.of the US to Madagascar.of the US to Madagascar.

seafloor navigation equipment.

• The "Fundamental Research" exclusion does not apply because the research is to be conducted abroad.

• The seafloor navigation equipment with the specifications listed is regulated under EAR's CCL and there is no license exception.

A license is required to take this equipment out A license is required to take this equipment out A license is required to take this equipment out A license is required to take this equipment out of the US to Madagascar.of the US to Madagascar.of the US to Madagascar.of the US to Madagascar.

Case Study #2 A computer scientist is working on encryption strategies with a graduate student who is a Pakistan national and is not a permanent resident of the United States.

• Some encryption technologies my not be in the public domain and their development may not be considered fundamental research under either EAR or ITAR.

Case Study #2 A computer scientist is working on encryption strategies with a graduate student who is a Pakistan national and is not a permanent resident of the United States.

• Some encryption technologies my not be in the public domain and their development may not be considered fundamental research under either EAR or ITAR. fundamental research under either EAR or ITAR.

• The graduate student may be able to qualify for ITAR's employment exclusion, but EAR has no corresponding exclusion.

Exclusions don’t apply to certain types of encryption technology. Sharing the encryption technology with the graduate student may constitute a "deemed export" of that technology and may require a license.

fundamental research under either EAR or ITAR.

• The graduate student may be able to qualify for ITAR's employment exclusion, but EAR has no corresponding exclusion.

Exclusions don’t apply to certain types of encryption technology. Sharing the encryption technology with the graduate student may constitute a "deemed export" of that technology and may require a license.

Case Study #3

A plant biologist working on genetic control of plant development receives funding from a corporate sponsor who exercises substantive prepublication review. The biologist sends samples of puccinia striiformis to colleagues in Canada for analysis.

• The "public domain" exclusion applies only to information, not to physical objects such as the samples.

Case Study #3

A plant biologist working on genetic control of plant development receives funding from a corporate sponsor who exercises substantive prepublication review. The biologist sends samples of puccinia striiformis to colleagues in Canada for analysis.

• The "public domain" exclusion applies only to information, not to physical objects such as the samples. the samples.

• The "fundamental research" exemption does not apply because of the sponsor's substantive prepublication review.

• Puccinia striiformis, along with several other plant pathogens, is listed on the EAR CCL, and there is no applicable license exception.

Sending this sample to Canada will require an Sending this sample to Canada will require an Sending this sample to Canada will require an Sending this sample to Canada will require an export license.export license.export license.export license.

the samples.

• The "fundamental research" exemption does not apply because of the sponsor's substantive prepublication review.

• Puccinia striiformis, along with several other plant pathogens, is listed on the EAR CCL, and there is no applicable license exception.

Sending this sample to Canada will require an Sending this sample to Canada will require an Sending this sample to Canada will require an Sending this sample to Canada will require an export license.export license.export license.export license.

Reference Materials

Contents of CD

• Regulations

• Training Materials

• Case Studies

Reference Materials

Contents of CD

• Regulations

• Training Materials

• Case Studies• Case Studies

• Guidance Documents

• Case Studies

• Guidance Documents

Questions?Questions?Questions?Questions?