EXPORT CONTROLS AND RESTRICTED RESEARCH

1. EXPORT CONTROLS AND RESTRICTED RESEARCH Office of Research Integrity University of Texas At San Antonio Javier Garcia Senior Research Compliance Coordinator

2. The Goals of this Module: • Provide a broad general overview of Export Control regulations which you must comply when carrying out your duties and responsibilities at UTSA. • Review the relationship between Export Controls and University Research and provide examples of the types of activities that may be impacted • Outline what you can do to help US ensure the University’s compliance with export control regulations • Identify where to go for help When you complete your review, click the Next button at the bottom of this page. Next

3. Overview of Export Control “Export Controls” refers collectively to those U.S. laws and regulations that govern the transfer of controlled information or technologies and services to foreign persons and/or foreign countries • Protect national security • Advance U.S. foreign policy objectives and priorities • Prevent terrorism • Prevent the proliferation of weapons of mass destruction (WMD) by any means • Fulfill U.S. international obligations (e.g., UN sanctions, Australia Group) CBP Enforce all EC Laws EAR/CCL* “Dual-Use Items” Export Control Regulations • Nuclear Technology • Nuclear Material/Equipment OFAC* Economic & Trade Sanctions/Embargos ITAR/USML* Defense Items & Services, Technical Data *Click the Agency’s symbol for more information Previous Next

4. What constitutes an Export?ITAR 120.17, EAR 734.2(b) • Physical Exports – an actual shipment or transmission out of the Unites States, including the sending or taking a controlled item or a defense article out of the United States in any manner; • Visual or other inspection by non-U.S. persons of controlled items or defense article that reveals technology or source code subject to export control or technical data to a non-U.S. persons; or • Oral or written exchanges with Non-U.S. persons of technology, source code or technical data in the United States or abroad. • Deemed Exports – Releasing or otherwise transferring "technology", source code or technical data to a non-U.S. person in the United States; • Defense Service – Furnishing assistance in the design, development, engineering, manufacture, production, assembly, testing, repair, maintenance, modification, operation, demilitarization, destruction, processing or use of defense articles; • Providing a service or conducting any type of transactions with embargoed countries and individuals and/or entities listed on the "Prohibited Parties Lists". • Re-Exports – A shipment or transmission of a U.S.-origin item or technology from one foreign country to another foreign country; Previous Next

5. “Deemed” Exports Deemed exports are the primary area of export control exposure for the university • Any “release” or transfer of technology, software or information to a non-U.S. person within the U.S., – treated same as export to that country. • “Release” includes: (1) visual inspections; (2) oral exchanges; (3) emails; and (4) use abroad of information acquired in U.S. • Includes information necessary for “development, “production”, “use”– information about the operation, installation, maintenance, repair, overhaul, and refurbishing of a controlled item. • Residency status is important: (1) permanent residents (green card holders) and (2) “protected immigrants” have same right to access controlled technology or technical data as U.S. citizen Previous Next

6. Examples of Controlled Items • International Traffic in Arms Regulations (ITAR) – controlled items • Satellite Technology • Global Positioning Systems (GPS) • Unmanned Aerial Technology (e.g. Piccolo Ground Control Station, Gimbal Sensors) • Night Vision Technology • Navigation Systems • Sonar and Radar Systems • Military Equipment / Software • Infrared Cameras (FLIR) • Export Administration Regulation (EAR) – controlled items • Specified Lasers • Specified Laboratory Equipment • Encryption Technology • Sensors • Propulsion Systems • Infectious Agents, Toxins and Chemicals • Certain Materials for the Manufacture of Controlled Goods Previous Next

7. University Activities Subject to Export Controls • In addition to activities involving military items or weapons, export control directly impact the university’s ability to: • Receipt and/or use of export controlled items (commodities, software, and technology, defense article, technical data); material or proprietary information from other parties, including sponsor agencies or collaborators; • Teach and collaborate with non-U.S. persons inside or outside the U.S. (research, field work or course instruction); • Conduct research that is subject to national security and research that restricts publication or participation by non-U.S. persons; • Employ non-U.S. faculty, staff, and students; • Visits or tours of non-U.S. persons through research areas and/or any other UTSA facility; • Travel outside the U.S.; • Ship or take controlled items, technology (e.g. unpublished, proprietary information or restricted information) or technical data overseas; • Conduct International financial transactions as a result of providing or receiving payments involving a foreign entity. Previous Next

8. Research and Export Control at UTSA • Many university activities and research projects are NOTsubject to export controls and Non-U.S. person restrictions due to regulatory exclusions: • Information in the Public Domain*(ITAR, EAR) • Educational Courses*(ITAR, EAR) • Bona fide Employee*(ITAR, EAR) • Fundamental Research (FRE)*(EAR, ITAR) • License Exception TMP*(UTSA Certification of Temporary Export Form*) • But potentially impacts the: • Ability of non-U.S. students to participate in research involving controlled technology; • Ability to provide services to non-U.S. persons; • Ability to transfer controlled items, faculty and staff to non-U.S. persons; and • Ability to publish and perform open research. • Therefore, it is important that all conditions for these exclusions and/or exemptions are met *Please move the cursor over the highlighted terms for more information Previous Next

9. Do I need to be concerned about export controls in this research? * This resource was created by the University of Arizona . • Public domain, and • No equipment, encrypted software, listed-controlled chemicals, bio-agents or toxins, or other restricted technologies are involved, and • Information/software is already published, and • There is no contractual restriction on export, or • Fundamental Research • (note definitions and caveats associated with this exemption) • Equipment or encrypted software is involved, or • Technology is not in the public domain, and • Technology may be exposed to non-U.S. persons(even on campus) or foreign travel is involved, and • The equipment, software or technology is on the Commerce Control List, or • Information or instruction is provided about software, technology, or equipment on the CCL, or • The non-U.S. persons are from or the travel is to an embargoed country • The contract has terms e.g. a publication restriction that affect the Fundamental Research Exemption • Equipment, software, chemical, bio-agent, or technology is on the US Munitions List (ITAR), or • Equipment, software, chemical, bio-agent or technology is designed or modified for military use, use in outer space, or there is reason to know it will be used for or in weapons of mass destruction, or • Chemicals, bio-agents or toxins on the Commerce Control List are involved, or • The contract contains a restriction on export or access by Non-U.S. persons YES License Will Be Required Probably (further review is required) License May Be Required NO Previous Next

10. FRE is invalidated if you agree to certain conditions • Contractual restrictions on publication or access to or dissemination of the research results; • “Sponsor Approval” vs. “Sponsor Review”; • Work or Research done abroad; • Transfer of shipment of material or equipment out of U.S.; • Sending, transmitting or disclosing to a sanctioned country or a person or organization on the restricted party lists; • Export Control Language; • Electronic sharing of software or other technology including not publicly available, Encryption software and Defense article or service; • Provisions for a “Prime” Agreement; • Transfer of “defense services”. Previous Next

11. ORI’s Role in Restricted Research • Determine what technology/information in your research may be controlled • Review contracts for additional “red flags” • Certify all shipments outside of U.S. • Determine if an export license is required (shipping, deemed export, etc.) • Apply for Commodity Jurisdiction / Classification • Request Export License • Develop and Implement a Technology Control Plan (as needed) • Conduct training for all involved personnel and review their obligations and responsibilities on the project • Partners with researchers to monitor projects to ensure on-going compliance with all federal regulations • Screen grants; foreign visitors, contracts, travel, purchasing; and any other activities in which export controls are most likely to arise Previous Next

12. Export Restricted Research • For compliance, we need to understand • If the Project has contract restrictions regarding access, dissemination, or publication that invalidates the FRE. • What information, technology or technical data may be involved (Military, Proprietary, Other Dual-use Items, etc.). • Who will receive the information, technology or technical data (participants, individuals and entities) or benefit from certain services provided. • If the Project involves transactions with individuals or entities outside of U.S. • If a License is required, then plan ahead. NOTE: AVOID “SIDE” AGREEMENTS BETWEEN YOU AND THE SPONSOR Previous Next

13. Export License Application Process • If a license is required, it only means that you must obtain the necessary U.S. government approval and build the time for obtaining a license before exporting or transferring any controlled item / technology • EAR – not too complicated, can apply electronically, no fee • Deemed Export license required for non-U.S. persons working with certain controlled proprietary technology even in a UTSA Lab • License needed to ship certain goods/technologies including data outside the U.S. (Commodity Classification, EAR99) • ITAR – very complicated and expensive • DSP-5/Technical Assistance Agreement required for Non-U.S. persons working with export controlled technology/defense service • OFAC – application by letter, no fee Previous Next

14. License or Technology Control Plan? • In some situations it is possible to put a TCP in place instead of applying for a license (Deemed Export) • Technology Control Plan • Outlines the controlled technology/item and detail the specific security controls • Can be used to secure proprietary information, etc. • Areas included: • Commodity Jurisdiction and Classification (if needed) • Physical Security • Information Security • Personnel Screening • Training • Audits • Project Close-Out • Restrictions (Access and publication) Previous Next

15. Research Service Centers • *Play an Important Role in helping identify EC Issues • Review proposals, contracts, SOW and other documents for restricted research • Red Flags (Basic/Applied vs. Restricted) • Exclusions • Approve procurements, transactions, etc. • Purchasing new equipment and materials: Request Commodity Classification or letter from vendors stating that the item is not subject to export controls regulations. • Identify international collaborations, shipments, visitors, etc. Previous Next

16. Export control laws are not intuitively obvious. • All UTSA researchers are ultimately responsible for their own individual compliance. • At a minimum, researchers need to know how to recognize that an export control issue may exist, and then whom to contact at UTSA (ORI) for assistance. Recognize Potential Export Control Issue.Seek Guidance. Previous Next

17. Do and Don’ts • Do not ship any item outside of the U.S. without first checking with ORI in in order to determine if the item is controlled under ITAR and EAR. • Do not accept publication restrictions or access/dissemination restrictions. • Do not accept prior approval requests for use of foreign nationals. • Do not enter into secrecy agreements or otherwise agree to withhold results in research projects conducted at the University or that involve University facilities, students, or staff. • Do not accept proprietary information that is marked “Export Controlled”. • Do not accept Government “Classified” Information. • Return to the manufacturer any materials they provide to you about export-controlled equipment that are marked “Confidential” unless they are covered by a specific non-disclosure agreement. Previous Next

18. The cost of noncompliance • EAR • Criminal: $50K to $1 million or 5 times value of export, whichever is greater, per violation, 10 years imprisonment • Civil: revocation of exporting privilege, fines $10K-$120K per violation • ITAR • Criminal: Up to $1 million per violation and 10 years imprisonment • Civil: seizure and forfeiture of article, revocation of exporting privilege, up to $500,000 fine per violation • Examples of Violations • University of Tennessee Professor Found Guilty on 18 Counts of Export Violations (View Article) • Bureau of Industry and Security (BIS) entered into a $115,000 civil penalty settlement agreement with Intevac, Inc. International Trade Laws News, Feb 25, 2014. (View Article) Previous Next

19. Applicable Policies & Regulations Previous Next • Federal • The International Traffic in Arms Regulations (ITAR), 22 CFR §§ 120-130, Department of State Regulations • Export Administration Regulations (EAR), 15 CFR §§730-774, Bureau of Industry and Security, Department of Commerce • Sanctions Programs and Country Information, Office of Foreign Assets Control (OFAC) • 10 CFR Part 810, Department of Energy National Nuclear Security Administration (NNSA) • 10 CFR Part 110, Nuclear Regulatory Commission (NRC) 10 CFR Part 110 • University of Texas System • UTS173, Export Controls • Related UTSA • HOP 10.01, Export Controls • UTSA Export Control Compliance Standard Operating Procedures (SOP) • Export Control Objectionable Clauses

20. Protect the FRE Understand Your Role Understand the Regulations Work with ORI and Other Departments Control Access Getting Your Arms Around Export Controls “Export Controls are critical to achieving our national security and foreign policy goals. To enhance our enforcement efforts and minimize enforcement conflicts, executive departments and agencies must coordinate their efforts to detect, prevent, disrupt, investigate and prosecute violations of U.S. export control laws, and must share intelligence and law enforcement information related to these efforts to the maximum extent possible, consistent with national security and applicable law.” – Executive Order 13558 – Export Enforcement Coordination Center (E2C2), November 9, 2010 Next Previous

21. Summary • Export Controls apply to all international University activities not just to shipping materials/equipment overseas. • If your research includes international activities • An Export Control Activity Assessmentwill need to be done to determine if an export license is needed. • For additional information, please visit our website at http://research.utsa.edu/oric/export. • Assistance is readily available to help you determine your export control compliance requirements. • Contact Javier Garcia at 458-4233, export@utsa.edu Next Previous

22. You have completed the Export Control Training ModuleYou are welcome to review the other training modules.Please click the “Training Completed” button below to acknowledge that you have completed the export control awareness training and understand your responsibilities with regards to Export Control regulations and laws. TRAINING COMPLETED

23. UTSA SYSTEMS IN PLACE TO HELP WITH COMPLIANCE

24. Why Compliance is so Important University of Tennessee Professor Found Guilty on 18 Counts of Export Violations Satterfield, Jamie. 2008. “Retired UT Prof guilty; case gained national attention.” www.knoxnews.com (accessed on March 22, 2010). Next

25. Academic Enforcement • 2014, University of Michigan medical researcher prosecuted for sending MRI coil to Iran. Assembly of coils that generates radio signal to permit imaging of part of body in the coil • 2013, NYU researchers bribed by China Govt for NIH MRI grant tech • 2013, UMASS Lowell CAR shipped EAR99 atmospheric device to Pakistan Space & Upper Atmosphere Research Commission(Entity List) $100k fine, fine suspended • 2010, Perm Res. researcher stole Dow pesticide secret for Hunan Normal Univ. student to publish journal. 7 years, 3 mon. • 2004, Texas Tech Prof. imported plague bacteria. 2 years, $50k civil / $250k criminal • 1998, FAU Prof export thermal camera to Syria. Pretrial diversion Return

26. Export Controls – Agency Responsibilities (1 of 4) • Commerce Department: Commercial and “Dual-Use” Items (the Export Administration Regulations or “EAR”) • Licensing: Bureau of Industry and Security (“BIS”) • State Department: Defense and Space-related Technologies (the International Traffic in Arms Regulations or “ITAR”) • Licensing: Directorate of Defense Trade Controls (“DDTC”) • Treasury Department: Trade Sanctions for Services to Countries, Institutions or Individuals Subject to Prohibitions • Licensing: Office of Foreign Assets Control (“OFAC”) • Defense Department: active role in ITAR/EAR decisions • Licensing: Defense Trade Security Administration (“DTSA”) • Specific exports also covered by other agencies and regulations, such as dangerous pathogens and nuclear-related exports Next

27. EAR – Basic Operational Coverage (2 of 4) • Regulates items designed for commercial purpose but that can have military and security applications (e.g., sensors, nanotechnology materials, computers, pathogens, test equipment, materials) • Provides certain General Prohibitions for all exports • Also covers “re-export” of “U.S.-origin” items outside United States because U.S. legal jurisdiction follows the item or technology worldwide – wherever it is located • Additional “Catch-all” category for items “subject to the EAR” but not on CCL going to certain countries or individuals which require a license Next Previous

28. EAR / Commerce Control List (CCL) (3 of 4) • Covers dual-use items: 9Commerce Control List (CCL) categories of different technologies covering equipment, tests, materials, software and technology (includes information, technical data and technical assistance) • 0. Nuclear Materials, Facilities & Equipment & Miscellaneous • 1. Materials, Chemicals, “Microorganisms” & Toxins • 2. Materials Processing • 3. Electronics • 4. Computers • 5. Telecommunications and Information Security • 6. Sensors and Lasers • 7. Navigation and Avionics • 8. Marine • 9. Aerospace and Propulsion Next Previous

29. EAR/ Commerce Control List (CCL) (4 of 4) • EAR controls are technology-specific, country-specific and, sometimes, entity- or person-specific • All equipment, chemicals, reagents, toxins/pathogens or microorganisms must be reviewed by ECCN: • Category 1: Materials, Chemicals, Microorganisms and Toxins (102 pages) • Category 2: Materials processing (81 pages) • Equipment includes items such as fermenters, centrifugal separation, cross-flow filtration, freeze drying equipment, etc. • Covers certain human, animal and plant materials and equipment including certain genetically modified material • Each ECCN contains: (1) reasons for control; (2) cost thresholds; (3) units (volume or mass); and (4) related controls • Also controls on certain computers, software, servers and IT increasingly used in life sciences research • Also cover Material Transfer Agreement exchanges and terms! *Click the Return button to go back to the “Overview of Export Controls” slide Return Previous

30. Export Controls – ITAR/ State Dept. (1 of 2) • Covers military items (“munitions” or “defense articles”); 21 categories and few exemptions • Regulates goods and technology designed for military purposes • Includes all space-related technology and research – Category XV, Spacecraft Systems and Associated Equipment • Creates “defense articles” (includes technical data which encompasses software unlike EAR) and “defense services” (certain information to be exported may be controlled even if in public domain) related to covered articles • Covers some university research as “defense services” • Increasing ITAR application to university activities • Determines regulatory authority for new technologies through Commodity Jurisdiction process Next

31. Export Controls – ITAR/ State Dept.(2 of 2) • The following categories of defense articles and services are included on the ITAR Munitions List (USML): • Firearms / Ammunition • Artillery projectors and armaments • Launch vehicles, guided missiles, ballistic missiles, rockets, torpedoes, bombs, and mines • Explosives, propellants, incendiary agents, and their constituents • Vessels of war and special naval equipment • Tanks and military vehicles • Aircraft and associated equipment • Military training equipment / Auxiliary military equipment • Protective personnel equipment • Military electronics • Fire control, range finder, optical and guidance and control equipment • Toxicological agents and associated equipment • Spacecraft systems and associated equipment • Nuclear weapons, design, and testing equipment • Classified articles, technical data and defense services not otherwise enumerated • Directed energy weapons • Submersible vessels, oceanographic and associated equipment • Miscellaneous articles not listed above with substantial military applicability and which were designed or modified for military purposes. Return Previous *Click the Return button to go back to the “Overview of Export Controls” slide

32. Export Controls – OFAC Restrictions • U.S. economic sanctions focus on the transaction with the end-use or country rather than the technology • OFAC administers and enforces economic and trade sanctions: • Prohibitions on trade with countries such as Iran, Cuba, North Korea, Sudan, Syria – includes conference sponsorships • Travel restrictions – e.g., Cuba • Covers payments, services, honoraria and anything else of “value” • OFAC prohibits payments or providing “value” to nationals of sanctioned countries or specified entities/persons even if their country is not subject to sanctions • OFAC prohibitions are separate from ITAR/EAR and may “trump” them • Sanctions/licensing requirements may differ • Multiple lists must be checked for EAR/OFAC/ITAR compliance • Obligation to check multiple lists -- e.g., “Specially Designated Nationals and Blocked Persons List” Return *Click the Return button to go back to the “Overview of Export Controls” slide

33. Higher Learning Exclusions (1 of 4) • Public Domain or Publically Available Information • Information that has been made available to the public without restrictions upon its further dissemination such as through any of the following: • Subscriptions available without restriction to any individual who desires to obtain or purchase the published information; • Libraries or other public collections that are open and available to the public, and from which the public can obtain tangible or intangible documents (sales at newsstands & bookstores); • Unlimited distribution at a conference, meeting, seminar, trade show, or exhibition, generally accessible to the interested public; • Through public release (i.e., unlimited distribution) in any form (e.g., not necessarily in published form) after approval by the cognizant U.S. government department or agency • Through patents available at any patent office (including patent applications); • Through fundamental research in science and engineering at accredited institutions of higher learning in the U.S. where the resulting information is ordinarily published and shared broadly in the scientific community (ITAR). • Technology and software that are already published; arise during, or result from fundamental research; NOTE: this does not apply to post-doctoral appointees or graduate/undergraduate students! Next NOTE: this does not apply to post-doctoral appointees or graduate/undergraduate students!

34. Higher Learning Exclusions (2 of 4) • Educational Information • General scientific, mathematical, or engineering principles commonly taught at schools and universities (ITAR) • Information released by instruction in a catalog course or associated teaching laboratory of an academic institution; (EAR) • Proprietary courses would not qualify as release of educational information and subject to export controls • “Bona fide Employees” (ITAR, EAR): No license is required to share controlled technology, items, or technical data with a Non-U.S. person who: • Is a full-time, bona fide UTSA employee; • Has maintained a permanent address in the U.S. while employed; • Is not a national of country to which exports are prohibited is not a national of a country subject to U.S. embargoes; and • Is advised in writing not to share the technical data or information with other Non-U.S. persons without prior U.S. Government authorization. NOTE: this does not apply to post-doctoral appointees or graduate/undergraduate students! Next NOTE: this does not apply to post-doctoral appointees or graduate/undergraduate students!

35. Higher Learning Exclusions (3 of 4) • Fundamental Research Exclusion (FRE) applies to research in science, engineering, or mathematics, the results of which ordinarily are published and shared broadly within the research community, and for which the researchers have not accepted restrictions for proprietary or national security reasons.. • Fundamental research exclusion applies only to the information that results from Fundamental Research, NOTto: • Transmission of physical goods (materials, items); • Material shipments anywhere outside the U.S., even if it was created under the exclusion; • Research conducted outside of the United States; • Transactions that involves embargoed or sanctioned countries and Prohibited Parties or entities; • Exported Controlled Activities – “research activities are subject to access, publication, or participation restrictions”. Next

36. “Use” of Research Equipment and Training of Foreign Nationals in FRE Projects (4 of 4) • Even in a research project covered by the Fundamental Research Exception (and exempt from licensing) – the transfer or disclosure of controlled technology or source code related to the “Use” of export-controlled equipment or tools by a foreign national still may trigger a licensing requirement • “Use” has a technical definition; does not cover normal operation but extends to a manufacturer’s proprietary manual • Controversial in research community but Commerce Department position is clear • A Deemed Export License may be required if we are releasing controlled technology, source code or technical data Next

37. License Exception TMP (Temporary Exports) UTSA Certification of Temporary Export • UTSA faculty and personnel can ship or hand-carry certain “tools of the trade” to perform UTSA-related fundamental research or educational activities to most countries, provided • the property will remain under their “effective control” throughout their stay abroad, and • it will be returned to the U.S. within 12 months or will be consumed/destroyed abroad Return *Click the Return button to go back to the “Overview of Export Controls” slide