export control basics
Post on 24-Jan-2017
2.123 Views
Preview:
TRANSCRIPT
ONLINE SELF-STUDY
Export Control Basics
Course Outline
Introduction
Key Terms and Exports Defined
Overview of Basic Regulations
Exclusions from Export Control Laws
Case Studies
Additional Information
Penalties and Enforcement Activities
Summary and Additional Resources
Post Test
2
Introduction
Why Regulations Were Imposed?
Export control regulations do the following:
Restrict exports of goods/technology that could aid our
adversaries
Prevent proliferation of weapons of mass destruction
(nuclear, biological, chemical)
Aid in complying with U.S. trade agreements and
sanctions against other nations
Prevent terrorism
3
Introduction
It is the policy of the University of North Carolina at Chapel Hill that all personnel, including employees, visiting scholars and students comply with all United States export control laws and regulations, including the Department of Commerce's Export Administration Regulations (EAR), the Department of State's International Traffic in Arms Regulations (ITAR), and the regulations administered by the Treasury Department's Office of Foreign Assets Control (OFAC).
For the complete UNC-Chapel Hill policy on Export Controls, click here: http://ehs.unc.edu/ih/biological/ec
4
Key Terms and Concepts
Controlled - Subject to export control regulations
Export License - Authorization for the government to
engage in specific export activity
Deemed Export-Any transfer to a citizen or
permanent resident of a foreign country, regardless
of where the transfer occurs, is deemed by the U.S.
Government to be an export to that person’s home
country. This does not include U.S. Citizens, individuals
granted permanent resident status, or protected
individuals
KEY TERMS AND EXPORTS
DEFINED
Key Terms
Defense Service - The furnishing of assistance (including
training) to foreign persons, whether in the United States or
abroad in the design, development, engineering, manufacture,
production, assembly, testing, repair, maintenance,
modification, operation, demilitarization, destruction,
processing or use of defense articles.
Technology-Specific information necessary for the
“development”, “production”, or “use” of a product. (EAR)
Key Terms
• Dual Use Item – items that have both
commercial/scientific and military or proliferation
applications.
• Re-export – when a material is exported to a foreign
entity which then transfers it to another foreign entity.
If you are aware that a re-export will occur you are
responsible for making sure the re-export transaction
complies with U.S. export control regulations.
Exports Defined
Export controls cover ANY shipment, transfer, or transmission out of the US of the following items:
• Physical Goods
• Technology (technical data, information)
• Software/source code(commercial or custom)
• Disclosure of specific information and types of services to foreign nationals inside the U.S. (deemed exports)
• The transfer can occur by physical, electronic, oral, or visual means.
9
Exports Defined
• Shipping research materials internationally
• Personally taking research materials abroadPhysical
• Teaching a foreign national in your laboratory to develop, build or construct certain items or software
• Presenting research at international conference or symposiumOral
• Showing controlled written documents or blue prints to foreign nationals, whether in the US or abroadVisual
• Emailing or faxing controlled information
• Storing information in ‘the cloud’Electronic
• Use of controlled information or items in research
• Research Agreement/Contract Issues: including restrictions on publications, restrictions on foreign nationals working on a project, export control language (sometimes incorporated by reference)
Other
OVERVIEW OF BASIC
REGULATIONS
Export Regulations
Export Administration Regulations
(EAR)
International Traffic in Arms Regulations
(ITAR)
Office Of Foreign Assets Control
(OFAC)
Department of Commerce
Bureau of Industry and Security (BIS)
Bureau of Industry & Security implements and enforces the Export Administration Regulations (EAR), which regulate the export and re-export of most commercial items.
Items subject to the EAR are listed on the Commerce Control List (CCL)
The inherent capabilities and design, not the end use, determines whether the item falls under the EAR
The EAR controls commodities as well as technology that pertain to these commodities. For example, teaching a foreign national graduate student the technology to develop integrated flight instrument systems, is subject to the EAR.
13
Department of Commerce
Bureau of Industry and Security (BIS)
Questions to Ask Yourself Before
Exporting…
• What is my item? (classification)
• Where is it going? (country of ultimate destination)
• Who will receive it? (ultimate end user)
• What will they do with it? (ultimate end use)
• What else do they do? (conduct of end user)
Department of Commerce
Bureau of Industry and Security (BIS)
Examples of Controlled Commodities
• Marine and Oceanic Equipment
o Scuba Gear
o Underwater cameras
• Aerospace Equipment
• Computers/Tablets/iPads
• Laboratory Equipment
• Encryption Software and Source
Code
• Lasers
• Biological material
o Toxins
o Bacteria
o Viruses
o Genomic Material
• Chemicals
• GPS
• Digital Cameras
• Reagents
Office Of Foreign Assets Control
(OFAC)
OFAC Enforces economic and trade sanctions against specific
countries, terrorists, narcotics traffickers, and those engaged in
weapons of mass destruction proliferation.
Countries with sanctions currently include: the Balkans, Belarus,
Burma, Ivory Coast, Cuba, Democratic Republic of the Congo,
Former Liberian Regime of Charles Taylor, Iran, Iraq, Lebanon,
North Korea, Somalia, Sudan, Syria, and Zimbabwe.
Note: Parties sanctioned under OFAC are not located only in
these comprehensively sanctioned countries. Some restricted
parties are located in countries friendly to the US and some
even located within the US.
16
Office Of Foreign Assets Control
(OFAC)
Before traveling to a sanctioned country, or trading with that country you must educate yourself on the specific sanctions programs for that country to determine whether such transactions are permitted.
OFAC’s website contains up-to-date information on each of the sanctions programs: www.treas.gov/offices/enforcement/ofac/
17
Office Of Foreign Assets Control
(OFAC)
OFAC maintains Specially Designated Nationals List
(SDN). Includes over 5,800 individuals, entities,
universities, vessels and banks with whom or with
which transactions are prohibited. The list can be
found here: http://sdnsearch.ofac.treas.gov/
When exporting, it is very important to know your
recipient and their intended use for your item.
EHS can provide assistant with screening your
intended recipients.
Department of State
International Traffic and Arms Regulations
ITAR is administered by the U.S. Department of State.
ITAR regulates items on the U.S. Munitions List (USML).
The USML lists the defense articles and services(technical assistance - includes design, engineering and use of defense articles) which are controlled for export.
The USML is based on whether an article or service is deemed to be ‘inherently military in character’.
19
Department of State
International Traffic and Arms Regulations
ITAR Requires Export Licenses For ALL EXPORTS of
Defense Articles, Defense Services, and/or Technical Data
to Foreign Persons wherever located.
Technical data is information required for the design,
development, production, manufacturing, assembly,
operation, repair, testing, maintenance or modifications of
controlled articles regulated by ITAR.
Foreign nationals working on ITAR controlled items must
do so under an approved deemed license .
20
Department of State
International Traffic and Arms Regulations
Examples of Defense Items and Defense Services
• Weaponized biological or
chemical agents
• Drones
• Military vehicles and tanks
• Providing training to foreign
military
• Infrared Cameras
• Militarized nuclear detection
equipment
EXCLUSIONS FROM
EXPORT CONTROL LAWS
Exclusions from Export Control Laws
Not all export activities require licenses. There are ‘carve outs’ written into the regulations that allow for transfers without obtaining export licenses.
Exclusions/Exemptions from Export Control Laws
Public Domain Exclusion (ITAR, EAR)
Education Exclusion (ITAR, EAR)
Employment Exclusion (ITAR only)
Fundamental Research Exclusion (ITAR, EAR)
23
Public Domain Exclusion
No license is required to export or transfer information and research results that are generally available to the interested public through:
– Libraries, bookstores, or newsstands,
– Trade shows, meetings, seminars in the U.S. open to the public,
– Published in certain patent applications, or
– Websites accessible to the public.
Note: the public domain exclusion applies to information and research results -- not physical equipment, substances, computer programs etc.
24
Employment Exclusion
No license is required to share information subject to
export control laws with a foreign national if the
foreign national:
– is a full-time, bona-fide employee of the University;
– is not a national of certain countries of concern;
– has a permanent address in the U.S. while employed at
the University; and
– has been informed in writing not to transfer the
information to other foreign nationals.
25
Fundamental Research Exclusion
No license is required for fundamental research, defined as basic or applied research in science or engineering
– at an accredited institution of higher learning in the U.S.; and
– resulting information is ordinarily published and shared broadly in the scientific community.
Fundamental research is to be distinguished from research where the results are restricted for proprietary reasons.
26
Education Exclusion
No license is required to transfer information to
students, including students who are foreign nationals,
concerning general scientific, mathematical or
engineering principles commonly taught in schools,
colleges or universities.
27
CASE STUDIES
Case Study #1
• A marine biologist, in connection with her research off the coast of
Madagascar, takes with her to Madagascar seafloor navigation
equipment for depths exceeding 1000 m and positioning accuracy
within 10 m of a given point.
– The "Public Domain" exclusion applies only to information, not to
equipment such as the seafloor navigation equipment.
– The "Fundamental Research" exclusion does not apply because the
research is to be conducted abroad.
– The seafloor navigation equipment with the specifications listed is
regulated under EAR's CCL and there is no license exception.
A license is required to take this equipment out of the US to
Madagascar.
29
Case Study #2
A computer scientist is working on encryption strategies with a
graduate student who is a Pakistan national and is not a
permanent resident of the United States.
Some encryption technologies my not be in the public domain and their
development may not be considered fundamental research under either
EAR or ITAR.
The graduate student may be able to qualify for ITAR's employment
exclusion, but EAR has no corresponding exclusion.
Sharing the encryption technology with the graduate student may
constitute a "deemed export" of that technology and may require a
license.
30
Case Study #3
A plant biologist working on genetic control of plant
development receives funding from a corporate
sponsor who exercises substantive prepublication
review. The biologist sends samples of puccinia
striiformis to colleagues in Canada for analysis.
The "public domain" exclusion applies only to information, not to physical
objects such as the samples.
The "fundamental research" exemption does not apply because of the
sponsor's substantive prepublication review.
Puccinia striiformis, along with several other plant pathogens, is listed on
the EAR CCL, and there is no applicable license exception.
Sending this sample to Canada will require an export license.
31
ADDITIONAL
INFORMATION
Census Bureau
The Census Bureau monitors U.S. export activity.
Exporters are required to file Electronic Export
Information (EEI) with the Census Bureau when:
Any single item in a shipment is valued over $2,500
or
An export license is needed for an item
or
Your destination is a restricted territory (country facing
strained relations with the U.S.)
33
Census Bureau
Most carriers (FedEx, UPS, World Courier, etc.) can
file the EEI for you for a fee.
EHS can file it for you for no charge. We will need a
copy of your commercial invoice at least one day
PRIOR to shipping.
34
Census Bureau
DO NOT UNDER VALUE items on your commercial
invoice to avoid customs fees at your destination!
Unusually low values are flagged by the Census
Bureau and can result in an audit. If you are found
under valuing your items you could be subject to
monetary penalties and/or loss of export privileges.
If customs officials at your destination catch you under
invoicing you may be subject to fines or even cargo
seizure. In extreme cases you may be barred from
exporting to that country in the future.
35
Destination Considerations
Always check with your collaborator regarding
import permits for your destination.
If an import permit is not required always check if
there are other relevant documents needed.
Keep in mind duties and taxes for your destination
as well. These can be checked in advance at:
http://export.gov/logistics/eg_main_018130.asp
36
Record Keeping
The exporter must create and maintain records for 5
years from date of export
Records include the following:
Commercial Invoice Required for all international shipments
Air Waybill
Electronic Export Information
EAR/ITAR Export License
Dangerous Goods Declaration
Destination Country Import Permit
37
What about Laptops?
Faculty and students who need to take their laptops
out of the country in connection with university
fundamental research may do so as long as:
the country of travel is not under U.S. sanctions;
the laptop is a "tool of trade"; and
the laptop remains in their possession and control at all
times.
38
What about Laptops?
Make sure the laptop does not contain any controlled
information on the hard drive. If it does and you take
it out of the country you have just exported that
information and may be in violation of export control
laws.
39
PENALTIES AND
ENFORCEMENT ACTIONS
Penalties
• Penalties for violating export control
laws can be severe. They can be levied
against individuals, institutions, or both.
• Violations of any of the regulations can
result in up to $1M fines and/or 10
years in prison per violation.
• Controlled export transactions are often
subject to more than one regulation so
the punishments can be even worse for
multiple violations.
41
Penalties and Enforcement Actions
University of Tennessee Professor
John Reece Roth (2009)
– Convicted and sentenced for export control
violations
– Violations included:
• transferring technical data relating to
drones to foreign graduate students,
• Having ITAR controlled technical data
information on his computer during a
trip to China
Penalties and Enforcement Actions
University of Massachusetts Lowell (2013)
• Two-year suspended penalty of $100k for
unlicensed export of an atmospheric sensing device
and related equipment to a Pakistani company on
BIS Entity list.
SUMMARY AND
ADDITIONAL RESOURCES
Summary
Not all items need an export license. Classification of
items should be conducted by Export Control
Specialist (ECS) before exporting.
Environment, Health and Safety is authorized filer of
ALL export licenses for the university.
Contact EHS with as much lead time as possible – the
determination and licensing process can take 6 weeks
or more.
45
Summary
Know your recipient!
Export control regulations apply to physical items as
well as the technology it takes to develop those items.
Be aware of research agreement terms and abide by
all restrictions.
Fines for non compliance can be levied against
individual researchers, Principle Investigators as well
as the university.
Report any export control violations to the ECS.
Resources
UNC-CH Resources
• UNC Export Control Homepage
• Shipping Biological and Hazardous Materials
Governmental Resources
• Bureau of Industry and Security
• Office of Foreign Assets Control (OFAC) Regulations
• International Traffic in Arms Regulations (ITAR) Regulations
Contact
For any questions or further information on export
controls contact the Export Control Specialist:
Tel: 919-962-3829
Email: shipping@ehs.unc.edu
48
top related