PowerPoint Presentation - NMSU: Research

2. Office of Grants and ContractsExport Control Basic Guidelines and Updated Information on Export Control Issues

3. What Is Export Control? Regulatory scheme to control the transfer of U.S. Technology to foreign entities Purpose: to protect national security, to further U.S. Policy, to protect short supplies Includes licensing procedures to allow sales and transfers of technology Imposes stiff civil and criminal sanctions for violations of export control laws

4. Growing Focus on University Research Most licensing and enforcement activity directed towards private industry Interagency IG audit conducted in 2003-2004 focused on university and lab research New government outreach programs directed towards universities Increase in �deemed export� licensing

5. What Regulations Govern Export Control? ITAR: International Traffic in Arms Regulations Administered by State Department Applies to military technology, including items on U.S. Munitions List EAR: Export Administration Regulations Administered by Commerce Department Applies to �dual-use� technology, including items on Commerce Control List

6. What Is an Export? Sending or taking a controlled article out of the U.S. Transferring a controlled article to a foreign government (e.g., embassy, trade mission) within the U.S. Performing a �defense service� (e.g., training) for a foreign person, whether in the U.S. or abroad. Disclosing (including oral or visual disclosure) technical data to a foreign person, whether in the U.S. or abroad (a �deemed� export).

7. What Is a �Deemed� Export? Release of controlled technology (including source code) to a foreign person within the U.S. Such release is �deemed� to be an export to the home country of the foreign person. �Release� can include oral communication of information, visual observation of technology, physical or electronic access to technology, use of technology, and any other form of technology transfer.

8. Who or What Is a �Foreign Person�? Any natural person who is not A U.S. citizen by birth A naturalized U.S. citizen, including those with dual citizenship A lawful permanent resident of the U.S. A �protected individual� (political refugee) Any foreign corporation or other business entity Any foreign government or governmental agency or subdivision

9. What exports are authorized? An export of a controlled item for which a license has been obtained. An export of a controlled item which is specifically permitted without a license. An export of an item which is exempt or excluded from export control regulation.

10. Export Control Exemptions Public domain or published information exemption Teaching exemption Fundamental research exemption Full-time employee exemption (ITAR only) Other exemptions De minimums quantities Research satellites

11. Public Domain Exemption Information in the �public domain� is not controlled under ITAR or EAR, even if it otherwise is included in the USML or CCL �Public domain� means published and generally accessible to the public through Sales at bookstores and newsstands Subscriptions to periodicals and journals Library materials Releases at open conferences and meetings Publicly available patents

12. Teaching Exemption Information released by instruction in catalog courses and associated teaching laboratories of academic institutions not subject to EAR Information concerning general scientific, mathematical or engineering principles commonly taught in schools, colleges and universities not subject to ITAR Exemption does not apply to encryption software

13. Fundamental Research Exemption Basic and applied research in science and engineering at accredited institutions of higher learning in the U.S. Where the resulting information is ordinarily published (actually published under ITAR) and shared broadly within the scientific community. Distinguished from research the results of which are restricted for proprietary reasons or specific U.S. government access and dissemination controls.

14. Full-Time Employee Exemption Available under ITAR only Release of unclassified information to foreign persons in the U.S. exempt if: Full-time, bona fide university employee Permanent abode in U.S. during employment Not a national of an embargoed country Institution informs employee in writing of export control restrictions

15. Research Considerations Involvement of foreign nationals in research Nature of research Publication restrictions Access and dissemination controls Information provided by sponsor Information about research equipment Services provided in connection with research

16. Involvement of Foreign Nationals Many foreign faculty members are either naturalized citizens or permanent residents Most foreign students are neither naturalized citizens nor permanent residents Exclusion of foreign persons from research activities is problematic Discrimination, privacy and competence issues Does not prevent access to research data in unsecure facilities

17. Nature of Research Basic research Systemic study directed toward greater knowledge or understanding of the fundamental aspects of phenomena and of observable facts without specific applications toward processes or products in mind.

18. Nature of Research Applied research Systemic study to gain knowledge or understanding necessary to determine the means by which a recognized and specific need may be met.

19. Nature of Research Development Systemic application of knowledge toward the production of useful materials, devices, and systems or methods, including design, development, and improvement of prototypes and new processes, to meet specific requirements.

20. Publication Restrictions Fundamental Research exemption not applicable if: Publication is prohibited Indefinite prepublication review is required Confidentiality provisions restrict publication Temporary prepublication review to protect proprietary information is acceptable

21. Access and Dissemination Controls Fundamental research exemption will not apply if: Research is sponsored by U.S. government, and Specific access and dissemination controls protecting research information are applicable Access and Dissemination controls include: Security classification required for personnel or information Restrictions on use of foreign personnel Publication restrictions

22. Information Provided by Sponsor Fundamental research not affected by sponsor-imposed use restrictions on information it provides for research purposes if publication of research results remains unrestricted Fundamental research exemption will not apply if sponsor imposes restrictions which prohibit publication of information provided for research purposes

23. Information About Research Equipment Information on the use, maintenance, and operation of controlled laboratory equipment remains subject to export control requirements even if such equipment is utilized to conduct exempt fundamental research Allowing access by foreign persons to controlled laboratory equipment and information about such equipment may constitute a �deemed export� of such information

24. Services Provided in Connection with Research A �defense service� under ITAR includes instruction or training provided to foreign persons in the U.S. regarding the design, development, engineering, manufacture, assembly, testing and use of defense articles A license (TAA) to provide instruction to foreign persons regarding a defense article is required even if all of the information provided results from fundamental research and is in the public domain

25. Overriding Research Considerations National Security concerns Public Safety Concerns Development of Weapons of Mass Destruction

26. The Defense Contract Project Sponsor is defense contractor involved in biological weapons research NMSU Task 1: Conversion of published mathematical formulae into FORTRAN computer code, and comparing code with a competing, commercially available code NMSU Task 2: Production of experimental fibers

27. The Defense Contract ProjectSubcontract Provisions Unrestricted publication rights, except approval of Sponsor required for release of information where there is a high likelihood of disclosing performance characteristics of military systems �. Subcontractor shall not employ Foreign Nationals � without the specific written approval of Sponsor

28. The Raman Spectroscopy Project Research involving Raman spectroscopy Unrestricted fundamental research Concern was use of controlled equipment in research work Resolution: Licensing not required

29. The NanoSatellite Project Fundamental research on creative, low-cost satellite design Project involves designing and building nanosatellites Publication of all research information required

30. The NanoSatellite Project The nanosatellite components are defense articles The nanosatellite itself is a defense article Instructing a foreign person in the assembly of a defense article is a defense service

31. Export Control Compliance Development of comprehensive NMSU export control guidelines Will provide additional and updated compliance templates and checklists Will establish procedures for licensing of appropriate research projects Will establish guidelines for negotiating contracts containing export control clauses