Export Controls

1. Export Controls

2. Purpose of the Training • Our Goal today is to educate UARC staff on applicable laws, identify when project information may be export controlled, and instruct such staff to involve the UARC Compliance Officer before possible export controlled information is “exported”. • Protection • Protect the UARC and the University • Bad Press • Loss of Exporting Privileges • Organizational Civil and Criminal Penalties • Lawsuits, Fines up to $1 Million, Time in Jail • Unable to Participate on Government Contracts • Protect Yourself • Personal Criminal and Civil Penalties

3. Purpose of Export Controls • Main objective is to protect U.S.: • National Security • Economy • Foreign Policy • Citizens

4. Major Export Control Laws • International Traffic in Arms Regulations (ITAR) • Department of State, Directorate of Defense Trade Controls • Arms Export Control Act (AECA) • Export Administration Regulations (EAR) • Department of Commerce, Bureau of Industry and Security • Export Administration Act (EAA) • Trading with the Enemy Act (TWEA) • Foreign Assets Control Regulations (OFAC) • Department of Treasury, Office of Foreign Assets Controls • International Emergency Economic Powers Act (IEEPA)

5. What Is Controlled • Equipment, Assemblies and Components • Test, Inspection and Production Equipment • Raw Materials • Software • Technology

6. What is Subject to EAR within the UARC • Technology • Specific information necessary for the "development", "production", or "use" of a product. The information takes the form of "technical data" or "technical assistance“ • Technical Data • May take forms such as blueprints, plans, diagrams, models, formulas, tables, engineering designs and specifications, manuals and instructions written or recorded on other media or devices such as disk, tape, read-only memories

7. What is Subject to ITAR within the UARC • United States Munitions List (USML) • Includes Equipment, Components, Technology, Software, or Other Services for • spacecraft (including nonmilitary) • military and space electronics • protective personnel equipment • guidance and control equipment

8. The Repercussions of Violations • Criminal: “Willful” Violation: • Up to $1M per violation for corporations • Up to $1M per violation and up to 10 years in jail for individuals • Civil: “Any” Violation: • Up to $500k per violation for corporations and/or individuals • Civil and Criminal: • Seizure or forfeiture of goods • Debarment from licensing for as long as three years • Potential debarment from Government contracting for up to three years

9. What Is an Export? • Any oral, written, electronic or visual disclosure, transfer or transmission outside the U.S. to anyone, including a U.S. citizen, of any commodity, technical data, technology, or software. • Transfer of a controlled commodity, technology, or software to a non U.S. entity wherever located.

10. How Does an Export Happen ? • An Export Can Occur in Three Ways: • Export • shipment or transmission of items outside of the U.S.; or • Re-Export • Shipment of U.S.-origin item from one foreign country to another foreign country • Deemed Export • Release or disclosure to a non-U.S. person within or outside U.S.

11. Deemed Exports • Nothing leaves the country, but information is impermissibly exchanged within our borders in violation of export laws. A “deemed export” is: • A release of information, which is subject to export regulations to a foreign person. • Such a release is “deemed” to be an export to the home country of the foreign person. • Examples of Deemed Exports: • Tours of laboratories • Foreign nationals employed in certain R&D (e.g. Alt II tasks) • Foreign students/scholars conducting research • Hosting foreign scientists • “Discussing” Alt II work with foreign persons

12. U.S. Person • US citizen, a person who is lawful permanent resident or who is a protected individual • Any corporation, business association, university, partnership, society, trust, or any other entity, that is incorporated to do business in the U.S.

13. Foreign Persons • Any natural person who is not a lawful permanent resident or who is not a protected individual • Any foreign corporation, business association, university, partnership, trust, society or any other entity that is not incorporated or organized to do business in the US • Also includes international organizations, foreign governments and any agency or subdivision of foreign governments

14. Deemed Exports and International Travel • Unknown / Unintentional Deemed Exports • Laptops • Data devices may be taken and the contents reviewed or captured by foreign country officials. • Technical Papers • Printed materials have the potential of unauthorized review or distribution.

15. Deemed Exports and International Travel • Items to Leave in your Office • Laptops • Portable Data Storage Items • USB Storage • Portable Hard Drives • “Hard” Copies of Data or Technology • Utilize Courier Services • Send printed controlled information ahead of time to authorized recipient.

16. Impact of Export Controls on Universities • If a university research project involves controlled technologies, the researcher may be required to obtain a government license before: • Equipment, chemicals or technologies subject to EAR or ITAR may be sent or taken outside the U.S. • Foreign researchers or students – even if located in the U.S. on university campus – may participate in research involving equipment, chemicals or technologies subject to EAR or ITAR (known as a “deemed export”) • There are exceptions to this rule • Public Domain • Fundamental Research

17. Public Domain • Applies to information that is already published, not just ordinarily published: • Subscriptions which are available without restriction to any individual who desires to obtain or purchase the published information • In libraries open to the public or from which the public can obtain documents • Published patent information available at any patent office • 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; • Fundamental research. • Conferences, meetings, etc. which are generally accessible by public for reasonable fee and where attendees can take notes • Websites accessible to the public for free and without host’s knowledge or control of access to downloads (software) Published or generally accessible or available to the public through sales at newsstands and bookstores

18. Fundamental Research • Basic or applied research in science and/or engineering at accredited institution of higher learning in the US where resulting information is ordinarily published and shared broadly in the scientific community • If any restrictions are placed upon publishing research, Universities cannot: • Involve foreign students or faculty • Discuss the research with foreign nationals • Share knowledge overseas, even with an American • Without prior approval of the governing agency

19. Export Licenses • If no exception or exclusion applies, then a license is required for the export or deemed export of controlled items, information, or services. • License granted from BIS or DDTC as applicable. • Coordinated by UARC Compliance Officer, UC Office of the President, and Sponsor (NASA). • Can take several months to obtain.

20. Applicability • Alt I Tasks: • Generally will not include subject matter specifically identified by export control laws • fundamental research (technology readiness level (TRL) still low) • no access or foreign national restrictions • work cleared by NASA for unlimited public release • Alt II Tasks: • May include export controlled items • Export controlled items/data will be identified in the task if known (current export determination not always available) • In general, foreign nationals are not allowed on task without prior approval and a technology control plan • Publication/dissemination/release of information restricted by NASA • A Data Management Resource (DMR) is provided to all UARC task managers detailing specific data handling requirements for each task.

21. Implementing Export Controls • Compliance Officer • Review the task order for any content that will be subject to export control. • Develop/Write the DMR to identify specific areas of concern and provide the process/mechanism to protect the controlled item(s). • Task Managers • Read the DMR released with the original task order, and with each modification to the task order thereafter. • Implement any specific control mechanisms identified within the DMR. • Assure that researchers are not placed into compromising situations. • Team Researchers • Each team member is accountable to be aware of the DMR, to acknowledge any control mechanisms and to act in the best interest of the UARC.

22. Questions UARC Export Compliance Officer Pamela Pancoast ppancoas@ucsc.edu 650-604-1284

23. UARC Publications

24. UARC Publications • Review and Authorization Procedures • Peer review for scientific and technical integrity • Editorial review for readability and sponsor format requirements • Sponsor review for proprietary information (Alt I) • Sponsor review for other restricted information: export control, sensitive-but-unclassified, etc. (Alt II) • Follow any special instructions that are identified in the Task Order’s Data Management Resource (DMR). • Do NOT distribute any publication/presentation until the Compliance Officer has provided the authorization to do so.

25. Alt I Procedures • Alternate I work • Also referred to as “Fundamental Research,” this type of work is characterized by research that will be broadly shared within the scientific community and involves no foreign national access or dissemination restrictions. • Any publications or presentations resulting from an Alt I task is subject to the UARC’s review and authorization procedures. • The UARC Compliance Officer is your POC for assistance with Alt I publication procedures. • If a civil servant contributed to the publication, the ALT II procedure is applicable.

26. Alt I Procedures • Prior to publishing or disseminating data the author much complete the UARC IP Form 301. • Peer Review and Authorization • Line Management Review and Authorization • NASA Task Requestor • Forward original UARC IP Form 301 and a copy of the finished work to the UARC Compliance Officer • Initiate NASA Review (45 days) • Review content for IP or Export Control restrictions • Final approver for the author to present work for publishing and disseminating. • Extended abstracts (more than 500 words) must also be reviewed prior to dissemination as well as any substantive (content, not form) revisions.

27. Alt I Procedures • The NASA review and UARC Compliance Officer Approval requires 45 days for the review.  • Late UARC IP Form 301 submissions may jeopardize your intended presentation or publication date. • Do NOT publish or present without final approval from the UARC Compliance Officer. • To do so means you are acting “outside the scope of your employment” and you can be found personally liable for any unauthorized release of proprietary information if such was actually published or presented. • The primary author will be notified via email when the review is complete.

28. Alt II Procedures • Alternate I work • If there is a NASA civil servent listed as a co-author. • Alternate II work • Research activity that may be subject to export control, national security restrictions, foreign national access, or other restrictions designated by NASA. • Any publications or presentations resulting from an Alt II task is subject to NASA’s review and authorization procedures. • Every NASA organization code will have a publication POC who can help you navigate the NASA publication requirements.

29. Alt II Procedures • Prior to publishing or disseminating data resulting from an Alt. II task, UARC employees and subcontractors must complete four forms: • ARC 310, Review and Authorization Record • NASA Form 1676, NASA Scientific and Technical Information (STI) Document Availability Authorization (DAA) • ARC 1676A, Export Control Public Domain Declaration (PDD) • Forms are now paperless and are to be completed online within NASA’s internal Intranet. • All papers (presentations, abstracts, journal articles) must be forwarded to the UARC Compliance Officer prior to the actual dissemination.