EXPORT CONTROLS
(ITAR/EAR)
Overview and Implications for Research Universities
What is Export Control?
Federal laws to protect items, technical data
and information important to the U.S.
Laws have been in place for > 20 years
More prominent since 9/11 resulting in
heightened scrutiny
Government’s Concern
Open access/publication of scientific and
technological results may provide unwitting
assistance to nations or terrorist groups in
developing weapons
Protecting economic interests of U.S.
companies
Foreign policy
Regulating Agencies
International Traffic in Arms Regulations (ITAR)
are administered by Dept of State
Controls Defense related items
Export Administration Regulations (EAR) are
administered by Dept of Commerce
Controls most other items
Numerous other regulatory agencies control exports
such as Dept of Treasury (money), DOE (Nucs),
DOJ (drugs), USDA (seeds)
Purposes
Control access of certain technology to foreign nationals
whether in US or abroad.
“Deemed export” will be the primary focus for research @
CSU. Defined as: The release of technology or software to a
foreign national within the U.S. is considered an export to
the home country of that foreign national.
Currently doesn’t apply to U.S. citizens, individuals granted
permanent residence status and certain protected individuals.
National Security classified information adds a whole
different dimension to issue.
Failure to comply can result in criminal as well as civil
penalties.
Increased emphasis since 9/11—move to DHS and more
compliance agents being hired
What is Affected
All items/technology in the U.S. except:
Publicly available technology & software
Publications that are artistic or non-technical in nature
Items/technology located outside of the U.S.:
Items of U.S. origin wherever located
Foreign made items if it exceeds certain % U.S. content or
direct product of U.S. technology
General Provisions
Prohibits certain exports, reexports and other conduct without a
license, license exception or determination that no license is required.
A license is a pre-approval to export. (ITAR & EAR)
Usually valid for 4 years
Applies to a specific item to a specific country
In the end, few items covered by EAR need a license—however, must
go through process to make the determination and be able to defend
decision.
A Technical Assistance Agreement (TAA) (ITAR) is an agreement for
the performance of a defense service or the disclosure of technical
data. Most likely vehicle we’ll use @ CSU to get foreign researchers
approved. A TAA does not authorize unrestricted publication-only an
approval for the listed foreign person to work on the specific project.
Questions to Consider
What is the technology?
Must know the specifics-will require help of PI and/or
sponsor.
Who is going to be working on project?
What nationality and status
Certain countries are embargoed by both agencies: Cuba,
Libya, Sudan, Iran, Iraq
Where is the work going to be accomplished?
On/off CSU property?
If in CSU offices/labs-who has access?
Fundamental Research/
Public Domain
Information in the Public Domain is not controlled.
Fundamental research in science and engineering at
accredited institutions where resulting information is
ordinarily published and shared broadly is considered
Public Domain.
However, university research will not be considered
Fundamental Research if:
The university or its researchers accept other restrictions on
publication, or
The research is funded by the U.S. Government and
specific access & dissemination controls are applicable
Challenges
EAR is not as simple as just looking at the
nationality.
Very dependent upon the specific technology—some
countries can receive some items
Time factor in determining requirements and then
applying for and receiving licenses-could be as long
as 90-120 days—depending on outside agency review
ITAR is simpler in that it considers all foreign
nationals equally as “dangerous”, however, specific
technology is still a major consideration.
Thoughts to Consider
Export control laws apply whether or not
there is a specific reference in the award
document.
Applies not only to the PI and assigned
researchers-need to consider where
information is accessible (labs/computers) &
control of information from other foreign
persons.
Additional Considerations
Technology Control Management Plans
Outlines how the controlled technology will be
handled/secured to prevent access by unapproved
foreign persons. Will be required even if there
are no foreign persons assigned to the project.
Addresses physical security of labs & other work
areas as well as security of data on computer
networks.
Recent Developments
Department of Commerce
Dept of Commerce IG published report in
March 2004 titled-”Export Controls May Not
Stop the Transfer of Sensitive Technology to
Foreign Nationals in the US”
Consortium of 12 universities led by MIT
responded in July with a letter to DOC
Undersecretary for Industry & Security
expressing serious concerns
Major Issues with DOC IG
“..technology relating to controlled equipment-
regardless of how “use” is defined-is subject to the
deemed export provisions (and the requirement to
license foreign nationals having access to that
equipment) even if the research being conducted
with that equipment is fundamental”
Report suggests that the deemed export policy
should take into account all the nationalities a
foreign national has ever maintained.
Department of Defense
DOD IG published findings in March 25, 2004 “Export-
Controlled Technology at Contractor, University and
Federally Funded Research & Development Center
Facilities”
DOD program & contracts officers should have higher level
of accountability and more limited ability to “drop” clauses
based on fundamental research exclusion.
Actual language of clause still under development, therefore
implications remain unclear.
Concern that program & contracts officers will default to
overly restrictive language to limit their liability.
Recommended Actions
Develop CSU policy for dealing with export provisions
Outline responsibility of SP administrators,
PIs/Depts, Export Advisor
Will need to put more burden on PIs and the sponsor
to assist with identification of technology.
Process will involve several offices such as: SP, PIs,
Depts, Research Deans, OVPRIT and possibly
General Counsel.
Post policies & training materials on web site
Educate SP, Research Deans and Depts on general
guidelines of EAR/ITAR and CSU policy.
Discussion Items
Publication restrictions and impact on Grad
students/PIs working on project
Administrative process/burden
TAAs and Technology Control Plans are time consuming
to prepare. Requires additional interaction between PI and
sponsor to determine what technology is controlled.
Approval process by Federal Gov’t can take 8-10 weeks.
Security of labs/work areas/computers & network
U.S. Munitions List (Part 121)
Category
I- Firearms, Close Assault Weapons, & Combat Shotguns
II- Guns & Armament
III- Ammunition/Ordnance
IV- Launch Vehicles, Guided Missiles, Ballistic Missiles, Rockets, Torpedoes,
Bombs and Mines
V- Explosives and Energetic Materials, Propellants, Incendiary Agents and
Their Constituents
VI- Vessels of War and Special Naval Equipment
VII- Tanks and Military Vehicles
VIII- Aircraft and Associated Equipment
IX- Military Training Equipment
U.S. Munitions List (Part 121) cont’
X- Protective Personnel Equipment
XI- Military Electronics
XII- Fire Control, Range Finder, Optical and Guidance and Control Equipment
XIII- Auxiliary Military Equipment
XIV- Toxicological Agents, Including Chemical Agents, Biological Agents,
and Associated Equipment
XV- Spacecraft Systems and Associated Equipment
XVI- Nuclear Weapons, Design and Testing Related Items
XVII- Classified Articles, Technical Data and Defense Services Not Otherwise
Enumerated
XVIII- Directed Energy Weapons
XIX- Not Used
U.S. Munitions List (Part 121) cont’
XX- Submersible Vessels, Oceanographic and Associated Equipment
XXI- Miscellaneous Articles
EAR Categories
0- Nuclear Materials, Facilities & Equipment & Miscellaneous
1- Materials, Chemicals, Microorganisms and Toxins
2- Materials Processing
3- Electronics Design, Development and Production
4- Computers
5- Telecommunications & Information Security
6- Sensors and Lasers
7- Navigation and Avionics
8- Marine (ships & vessels)
9- Propulsion Systems, Space Vehicles and Related Equipment