Export Controls: An Overview

1. Export Controls: An Overview The University of Florida acknowledges and appreciates Virginia Tech for granting UF permission to use, and alter their presentation on Export Controls for Virginia Tech Faculty and Principal Investigators July 2010 Version

2. What are Export Controls? • US laws that regulate the distribution to foreign nationals and foreign countries of strategically important technology, services and information for reasons of foreign policy and national security.

3. What is an Export? • Transfer of controlled technology, information, equipment, software or services to another country or to a foreign person in the US. • An export to a foreign person in the US is considered a deemed export.

4. Why Does UF Care About Export Controls? • The unauthorized transfer of export controlled items to foreign persons or transactions with sanctioned countries, individuals or entities may violate Export Control Laws.

5. Responsible Agencies • State Department • International Traffic in Arms Regulations (ITAR) • Commerce Department • Export Administration Regulations (EAR) • Treasury Department • Office of Foreign Assets Control (OFAC) • Other Agencies • DOE, NRC, DHS, Customs

6. The Good, The Bad and The Ugly • In general export controls have little or no impact on most university research • May place restrictions on research and/or require a license, unless an exclusion applies • Violations lead to administrative, civil and criminal penalties

7. The Good (Activities not Subject to EC) • Fundamental Research • Employment Exclusion (ITAR only) • Educational Information • Public Domain/Publicly Available Information • Humanitarian/Informational • National Security Controls

8. Fundamental Research Exclusion • “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 and from industrial development, design, production and product utilization the results of which ordinarily are restricted for proprietary or national security reasons. • per NSDD 189

9. Employment Exclusion • Applies when a foreign person is a full-time, bona fide university employee with a permanent address in the US while employed.

10. Education Exclusion Applies when the information in question consists of general scientific, mathematical or engineering principles commonly taught in universities or information that is in the public domain.

11. Public Domain/Publicly Available Information Applies when the information is already in the public domain and does not have restrictions on who may access.

12. Humanitarian/Informational • Humanitarian Projects (OFAC) Country specific restrictions. • Information and Informational Materials Books, movies, music, etc. ‘in being’ at time of transaction.

13. National Security If the project is funded by the US Federal Government and there are security controls in place the project is not subject to export controls as long as the parties comply with the specific security controls.

14. The Bad (Activities Subject to EC) Many university activities aresubject to export controls and the exclusions may not always apply. • Proprietary Research • Development • ‘Use Technology’ • International Projects • Defense Services • Prohibited Activities

15. Penalties for Export Control Violation • Administrative penalties • Monetary fines • Jail time

16. Administrative penalties • Termination of export privileges • Suspension and/or debarment from government contracting

17. Monetary fines – Criminal Violations • EAR • Up to $1M per violation for a university or company • Up to $1M per violation for individuals • ITAR • Up to $1M per violation for a university or company • Up to $1M per violation violation for individuals • OFAC • Up to $1M per violation for University or company • Up to $1M per violation for individuals

18. Monetary fines – Civil Violations • EAR • Up to $250K or 2x the value of the transaction that led to the violation, whichever is greater. This is per violation and applies to individuals, university or company • ITAR • Up to $500k per violation for individuals, university or company • OFAC • Up to $250K or 2x the value of the transaction that led to the violation, whichever is greater. This is per violation and applies to individuals, university or company

19. Jail time • EAR • Up to 20 years per violation • ITAR • Up to 20 years per violation • OFAC • Up to 20 years per violation

20. Who’s Who in Export Controls at UF • Empowered Official: • Dr. Tom Walsh, Director Sponsored Research and Compliance (352) 392-3516 • Export Control Legal Liaison: • Amy Hass, Assistant General Counsel (352) 392-1358 • DSR Export Control Contact: • Brandi Boniface, Assistant Director (352) 392-2369 • Mike Scian, Assistant Director of Compliance (352) 846-3533

21. DSR Export Control Strategy • Minimize the number of awards subject to export control • Ensure that cost of security for a sponsored project is borne by the Sponsor • Adequately protect those awards that have export control restrictions to prevent violations.

22. UF Process (Step 1) Proposal Review – Identifying Items of Concern • Publication or Foreign national restrictions. • Proprietary/controlled information, materials or equipment provided by sponsor or third party. • International shipping of materials or equipment. • Sponsor is DoD, NASA, DOE, DHS, or a commercial entity. • Funding agreement has language specifying project is controlled and/or sponsor confirms project is subject to export controls. • Scope involves areas of concern (i.e., satellites, UAVs, AUVs, weapons, pathogens, explosives, detectors, military systems, space technologies, toxins, etc).

23. UF Process (Step 2) • Technical Review • DSR and PI review project together in context of the export control regulations • PI and DSR discuss project identifying and resolving any questions or concerns related to export control • PI and/or DSR contact the Sponsor if appropriate for further clarification • Once all items have been addressed DSR completes the review and makes the final determination on whether or not the project is subject to export controls

24. UF Process (Step 3) • Export Control Applies • PI signs certification that project will not commence until export control actions are finalized. • PI and DSR develop appropriate Technology Control Plan (TCP) specific to the project. EHS, UF IT Security and general counsel will assist in this process as needed. • TCP is finalized and signed by PI, Chair/Director and/or Dean as appropriate. All UF persons working on the project (paid or unpaid) sign the two attachments. • All persons on the project (paid or unpaid) attend mandatory export control session. • Once TCP is fully executed and training complete the funding can be released and the project can commence.

25. My Project is Subject to EC, Now What? Actions Required for Your Sponsored Project • All persons working on the project must attend an export control training session • A Technology Control Plan (TCP) must be developed and executed • All persons on the project are aware of their obligations and comply with all conditions • PI monitors project to ensure compliance with TCP (including training and updates) Coordinate with DSR and General Counsel

26. The Technology Control Plan • Technology Control Plan contains the following elements: • Institutional Commitment • Commodity Jurisdiction and Classification • Physical Security Plan • Information Security Plan • Personnel Screening/Training Policy • Self-Assessment

27. Managing the Export Controlled Project • What can trigger an export control review? • What if an export control violation occurs? • What if I am contacted by an enforcement agency?

28. What Can Trigger an EC Review • Change of project scope • Change of project personnel/parties (e.g., subcontractors, grad students) • Foreign travel • Visiting foreign scientists/others • Shipping export controlled equipment, materials or software overseas without a license or other required approval • Notification of a potential export control violation

29. What if an EC Violation Occurs • Remove foreign persons/foreign nationals from access • Secure the export control restricted commodity, software, technology or technical data • Contact DSR

30. What if I am Contacted by an Enforcement Agency? • Ask to see the Agent’s badge of authority • Cooperate with the Agent • Determine if the Security Officer has been notified, if not, direct the Agent to the Security Officer • Cindy Holmes (352) 392-9330 • Contact DSR • If Possible ask that any interview or discussion be conducted with Security Officer and DSR

31. Future Trends • More export control restrictions • Export Control Reform • State, Commerce and DoD – New guidance and policies • China-specific restrictions for many items under EAR • More projects that will be considered export control restricted • Audits by enforcement agencies

32. Export Control Glossary • CCL – Commerce Control List • EAR – Export Administration Regulations Department of Commerce/dual use technologies • ECCN – Export Control Classification Number • ITAR – International Trafficking in Arms Regulations Department of State/Military Technology and Defense Services • OFAC – Office of Financial Assets Control Department of the Treasury/Financial Dealings with Sanctioned/Embargoed Countries • TCP – Technology Control Plan • USML – United States Munitions List

33. Government Resources • State Department (ITAR) • http://www.pmddtc.state.gov • Commerce Department (EAR) • http://www.bis.doc.gov/ • Treasury (OFAC) • http://www.treas.gov/offices/enforcement/ofac/ • OIG Report on Deemed Exports http://www.oig.doc.gov/oig/reports/2004/BIS-IPE-16176-03-2004.pdf

34. Organization Websites • Council on Governmental Relations http://www.cogr.edu • Association of American Universities http://www.aau.edu • SRA International http://www.srainternational.org/sra03/index.cfm • NCURA http://www.ncura.edu/ • Society for International Affairs • http://www.siaed.org

35. Closing • Questions • Contact Information Brandi Kay Boniface, MIBS, CRA Amy Hass Assistant Director for Research Assistant General Counsel University of Florida University of Florida 401 Grinter Hall 123 Tigert Hall Gainesville, FL 32611 Gainesville, FL 32611-3157 (352) 392-2369 (352) 392-1358 Boniface@ufl.edu Amhass@ufl.edu http://www.research.ufl.edu/research/compliance.html#conduct