NAME OF GROUP TO BE ADDRESSED PREPARED AND PRESENTED BY  EXPORT EXPERTS LLC July 2009 Presentation By James Shaw of Export...
PLEASE PAY ATTENTION……. <ul><li>THERE WILL BE A TEST AT THE CONCLUSION OF THIS PRESENTATON AND THOSE THAT FAIL TO PASS MAY...
All Personnel Must Receive Sufficient Awarenes & Compliance Training As Required By The United States Government For Deali...
<ul><li>THE ELEMENTS WE WILL REVIEW TODAY: </li></ul><ul><li>Why Are Export Control’s important? </li></ul><ul><li>What Do...
THE ELEMENTS WE WILL REVIEW TODAY <ul><li>Definition of Terminology Used </li></ul><ul><li>Applicability of Export Control...
More Elements We Will Review… <ul><li>Development of Compliance Programs, Policies, Training and Enforcement Activities. <...
Governing Agencies July 2009 <ul><li>Several government agencies are involved in the regulation of exports; however, the U...
Governing Agencies (Continued...) July 2009 <ul><li>The Department of Commerce – Bureau of Industry and Security – (Former...
<ul><li>The Department of the Treasury  specifically administers both comprehensive and partial  embargoes  against variou...
<ul><li>In addition to the U.S. Department of Commerce and the U.S. Department of State, these U.S. governmental agencies ...
Export Controls Are Important! <ul><li>The system of controls is designed for the avoidance of release of data or technolo...
Federal Export Control Programs are Extensive! <ul><li>The U.S. Government restricts the release of the following informat...
<ul><ul><li>Federal Export Control Regulations apply to many elements of our daily work activities: </li></ul></ul><ul><ul...
July 2009 <ul><li>It is essential to understand and accept this concept: </li></ul><ul><li>“ Exports” include the followin...
And there are trends towards more controls… <ul><li>As you need to be aware, the increased focus on imports and exports is...
Controls Also Apply to “Deemed Exports” <ul><li>What is a “Deemed Export”?  This is an activity wherein goods or technolog...
July 2009 <ul><li>Comply with all export laws and regulations in the US, and of each foreign country in which an activity ...
July 2009 Export Control Facts (Continued...)  <ul><li>The Government also utilizes the term “Deemed Export” to describe e...
<ul><li>Exports can occur when someone provides foreign persons “access” to technical information. For example, in the hos...
United States Munitions List (ITAR) July 2009 Category I    Firearms, Close Assault Weapons and Combat Shotguns Category I...
Establish the Export Commodity Control Number: <ul><li>The “ECCN” is an “intelligent number”, with at least 5 characters. ...
Commerce Control List (EAR) <ul><li>0         Nuclear Materials, Facilities & Equipment & Misc. </li></ul><ul><li>1       ...
Product Groups Within Categories <ul><li>A  Systems, Equipment and Components </li></ul><ul><li>B  Test, Inspection & Prod...
How to Determine If You Need A License <ul><li>License requirements are dependent upon:  </li></ul><ul><li>What you are ex...
CLASSIFICATION OF ITEMS <ul><li>Step 1 --- </li></ul><ul><li>Start by looking in the Commerce Control List under the categ...
LICENSE REQUIREMENTS <ul><li>Step 2 --- Check reasons for control. </li></ul><ul><li>AT   Anti-terrorist </li></ul><ul><li...
DESTINATION COUNTRY RULES <ul><li>Step 3 --- Check country chart to see if license is required. </li></ul><ul><li>Step 4 -...
July 2009 <ul><li>Export controls apply  if the information/materials appear on either the   International Traffic in Arms...
July 2009 Export Control Decision Tree For Sponsored Projects  Project involves equipment, software, chemicals, bio-agent ...
Definitions <ul><li>“ U.S. Person” is defined by ITAR 22 CFR §120.15 as: </li></ul><ul><li>  A person who is a lawful perm...
<ul><li>“ Foreign Person” is defined by ITAR 22 CFR §120.16 as:  </li></ul><ul><li>Any natural person who is not a lawful ...
<ul><li>“ Technical Data” is defined by ITAR 22 CFR §120.10 as:  </li></ul><ul><li>Information, other than software as def...
<ul><li>Classified information relating to defense articles and defense services  </li></ul><ul><li>Information covered by...
Definitions (Continued…)   “ Technical Data” defined by EAR 15 CFR §772:  (Title 15 Code of Federal Regulations Section 77...
<ul><li>An “Export” is defined in ITAR 22 CFR §120.17 as:  </li></ul><ul><li>Sending or taking a defense article out of th...
<ul><li>“ Export” is defined by EAR15 CFR §734.2(b) as:  </li></ul><ul><li>An actual shipment or transmission of items sub...
Exclusions Possibly Applicable to Universities and Educational Facilities July 2009 <ul><li>Fundamental Research </li></ul...
Fundamental Research Exclusion July 2009 <ul><li>Is defined in the EAR and ITAR as </li></ul><ul><li>Basic and applied res...
Exclusions (Continued…) July 2009 <ul><li>Information that is in the  Public Domain  is not subject to export controls (IT...
Exclusions (Continued…) July 2009 <ul><li>Employment exclusion may apply to   individuals who: </li></ul><ul><ul><ul><li>(...
July 2009 <ul><li>All persons, under any conditions, employees and/or  students faced with a potential export situation mu...
July 2009 <ul><li>Ensure NO shipments are made to a country subject to OFAC sanctions or embargoes or Denied Parties, </li...
Getting More Information Via The Web <ul><li>VIEW THE FOLLOWING: </li></ul><ul><ul><li>http://www.fbi.gov/page2/April06/ac...
NOW IT IS TEST TIME!!  Question #1 <ul><li>Giving facility tours to students or employees of a foreign country may constit...
Answer For Question #1 <ul><li>Giving facility tours to students or employees of a foreign country may constitute an expor...
<ul><li>Question #2 </li></ul><ul><li>Once a license is obtained for exporting certain equipment, and all of the equipment...
<ul><li>Answer for Question #2 </li></ul><ul><li>Each situation must be reviewed by the Department of Commerce or the Depa...
<ul><li>Question #3 </li></ul><ul><li>You teach a graduate course on solid-state lasers which is listed in the course cata...
<ul><li>Answer for Question #3 </li></ul><ul><li>Release of information by instruction in catalog courses and course labor...
<ul><li>Question #4 </li></ul><ul><li>You are traveling abroad to Germany as part of a Government Grant activity.  Since t...
<ul><li>Answer for Question #4 </li></ul><ul><li>All personnel, faculty, staff and students traveling abroad must ensure b...
Conclusion Statement… <ul><li>There are persons within the United States that are on a “Denied Persons List”, and organiza...
Questions?  Now is the time to ask? <ul><li>This presentation was intended as a primary orientation and not an in-depth co...
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Export Compliance & Controls Training July 31 2009.............................................................................................................................................................................................................

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A substantial introduction and overview of the system of regulations applicable to the import, export, 'deemed export', and handing of information in accordance with the Laws and Regulations of the United States Government.

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Export Compliance & Controls Training July 31 2009.............................................................................................................................................................................................................

  1. 1. NAME OF GROUP TO BE ADDRESSED PREPARED AND PRESENTED BY EXPORT EXPERTS LLC July 2009 Presentation By James Shaw of Export Experts LLC
  2. 2. PLEASE PAY ATTENTION……. <ul><li>THERE WILL BE A TEST AT THE CONCLUSION OF THIS PRESENTATON AND THOSE THAT FAIL TO PASS MAY FIND THEMSELVES SUBJECT TO A FINE AND/OR IMPRISONMENT FOR FAILURE TO COMPLY WITH THE LAWS AND REGULATIONS OF THE UNITED STATES OF AMERICA NO JOKE! </li></ul>July 2009 Presentation By James Shaw of Export Experts LLC
  3. 3. All Personnel Must Receive Sufficient Awarenes & Compliance Training As Required By The United States Government For Dealing With Export & Import Controls, International Trade Activities, And National Security. July 2009 Presentation By James Shaw of Export Experts LLC EXPORT EXPERTS LLC – Presents Today Important Information on the United States Government’s Code of Federal Regulations; National Security Programs, Export Controls, Import Security Programs, and Material Classifications for Purposes of Control and Taxation.
  4. 4. <ul><li>THE ELEMENTS WE WILL REVIEW TODAY: </li></ul><ul><li>Why Are Export Control’s important? </li></ul><ul><li>What Does The United States Government Control? </li></ul><ul><li>The Listing of the Multiple Government Agencies that have applicable controls. </li></ul><ul><li>Which Agencies are involved in topics of concern; including International Trade along with some Domestic Impact as well. </li></ul><ul><li>Applicability of “Export Controls” </li></ul><ul><li>Special Terminology and Definitions of Terms used in these activities. </li></ul>July 2009 Presentation By James Shaw of Export Experts LLC
  5. 5. THE ELEMENTS WE WILL REVIEW TODAY <ul><li>Definition of Terminology Used </li></ul><ul><li>Applicability of Export Controls by various Agencies of the United States Government </li></ul><ul><li>Department of Commerce </li></ul><ul><li>Department of State </li></ul><ul><li>Department of Defense </li></ul><ul><li>Office of Foreign Asset Control </li></ul>July 2009 Presentation By James Shaw of Export Experts LLC
  6. 6. More Elements We Will Review… <ul><li>Development of Compliance Programs, Policies, Training and Enforcement Activities. </li></ul><ul><li>General Prohibitions To Be Observed. </li></ul><ul><li>Understanding “Deemed Export” and “Transfer of Technology” issues. </li></ul><ul><li>Exceptions, Exemptions & Exclusions. </li></ul><ul><li>And more……. </li></ul>July 2009 Presentation By James Shaw of Export Experts LLC
  7. 7. Governing Agencies July 2009 <ul><li>Several government agencies are involved in the regulation of exports; however, the U.S. Department of Commerce, Bureau of Industry and Security, Department of Homeland Security, Customs and Border Protection, and the U.S. Department of State regulate most of our export situations, </li></ul><ul><li>The Department of State </li></ul><ul><ul><li>Implements the International Traffic in Arms Regulations, known as (ITAR) </li></ul></ul><ul><ul><li>ITAR regulates permanent and temporary Export/Import of defense articles, space related technologies, and the performance of defense services on the United States Munitions List </li></ul></ul><ul><ul><li>http://www.pmddtc.state.gov/itar_index.htm </li></ul></ul>Presentation By James Shaw of Export Experts LLC
  8. 8. Governing Agencies (Continued...) July 2009 <ul><li>The Department of Commerce – Bureau of Industry and Security – (Formerly Known As The Export Administration Department) </li></ul><ul><ul><li>Implements the Export Administration Regulations, referred to as (EAR ), </li></ul></ul><ul><ul><li>Regulates the export of commodities found on the Commerce Control List including dual use commodities (goods and services having both military and civilian uses) </li></ul></ul><ul><ul><ul><li>These are items that are not inherently military in nature; they are primarily commercial items with potential military use </li></ul></ul></ul><ul><ul><ul><li>Keep in mind time factor in determining requirements and then applying for and receiving licenses - could be as long as 90-120 days, or longer or even be denied, depending on an outside agency review </li></ul></ul></ul><ul><ul><li>http://www.access.gpo.gov/bis/index.html </li></ul></ul>Presentation By James Shaw of Export Experts LLC
  9. 9. <ul><li>The Department of the Treasury specifically administers both comprehensive and partial embargoes against various foreign countries. </li></ul><ul><li>Office of Foreign Assets Control (OFAC) enforces economic and trade sanctions against specific countries and individuals </li></ul><ul><li>Focus is on terrorists, narcotics traffickers, proliferation of weapons of mass destruction </li></ul><ul><li>Prohibited activities (examples): </li></ul><ul><ul><li>Conducting surveys and interviews </li></ul></ul><ul><ul><li>Engaging services to develop informational materials </li></ul></ul><ul><ul><li>Engaging persons to support research activities </li></ul></ul><ul><ul><li>Providing marketing and business services </li></ul></ul>Governing Agencies (Continued) July 2009 <ul><li>http://www.treas.gov/offices/enforcement/ofac/ </li></ul>Presentation By James Shaw of Export Experts LLC
  10. 10. <ul><li>In addition to the U.S. Department of Commerce and the U.S. Department of State, these U.S. governmental agencies are also involved in the regulation of exports: </li></ul><ul><li>The U.S. Department of Homeland Security administers U.S. tariff and trade laws and enforces export/import laws and regulations, partially through the Customs and Border Protection Service (CBP). </li></ul><ul><li>The U.S. Department of Justice enforces laws and regulations relating to alcohol, tobacco products, firearms, explosives, and arson, and receives issues from other Departments and Agencies. </li></ul>Governing Agencies (Continued) July 2009 Presentation By James Shaw of Export Experts LLC
  11. 11. Export Controls Are Important! <ul><li>The system of controls is designed for the avoidance of release of data or technology in an unauthorized manner (defined as being “ in violation of the Export Administration Regulations [EAR], or any other applicable laws” ). </li></ul><ul><li>The EAR requires record-keeping and reporting requirements to the government. </li></ul><ul><li>Potential fines include up to $1,000,000 and up to 10 years in prison per count charged. </li></ul>July 2009 Presentation By James Shaw of Export Experts LLC
  12. 12. Federal Export Control Programs are Extensive! <ul><li>The U.S. Government restricts the release of the following information to foreign nationals within the United States and abroad through the U.S. export regulations and embargoes: </li></ul><ul><ul><li>critical technologies, </li></ul></ul><ul><ul><li>technical data/software code, </li></ul></ul><ul><ul><li>equipment, </li></ul></ul><ul><ul><li>chemicals/biological materials, and </li></ul></ul><ul><ul><li>other materials, information and services </li></ul></ul><ul><li>Penalties for violating export control regulations include fines, loss of export privileges, personal liability to personnel, and damage to an organization’s business and reputation in the community. </li></ul>July 2009 Presentation By James Shaw of Export Experts LLC
  13. 13. <ul><ul><li>Federal Export Control Regulations apply to many elements of our daily work activities: </li></ul></ul><ul><ul><li>T A primary reason is “National Security”; to prevent weapons, defense articles, services, or dual use commodities from harming the United States or its allies. </li></ul></ul><ul><ul><li>Designed to prevent controlled articles from being transmitted in any way outside the U.S. or within the U.S. to foreign person, or organization, or to knowingly cause or permit any other person to do so unless the following conditions are fully complied with: </li></ul></ul><ul><ul><ul><li>The information, service or export is lawfully provided and has been covered by an appropriate license, agreement, permit, exception, or exemption. </li></ul></ul></ul><ul><ul><ul><li>Preparation of all appropriate documentation and/or submitted to the cognizant government authority, prepared, records maintained, to permit the communication, service, export, or import, or re-export activity. </li></ul></ul></ul><ul><ul><ul><li>Avoidance of release of data or technology in an unauthorized manner (in violation of the Export Administration Regulations). </li></ul></ul></ul><ul><ul><ul><li>U.S. Government record-keeping and reporting requirements are satisfied as required by the Federal Regulations. </li></ul></ul></ul>July 2009 Export Controls ? Why is this important to you? Presentation By James Shaw of Export Experts LLC
  14. 14. July 2009 <ul><li>It is essential to understand and accept this concept: </li></ul><ul><li>“ Exports” include the following – </li></ul><ul><li>Shipment* of a controlled material, item, or good. </li></ul><ul><li>Transmission (including fax, digital or hand-carried) of any controlled information related to a controlled item </li></ul><ul><li>Release or disclosure (including verbal or visual) of any controlled technology, software or technical data either abroad, or in the U.S. (e.g. “deemed export”) </li></ul><ul><li>Use or application of controlled technology on behalf of, or for the benefit of, any foreign person or entity, either abroad or in the U.S.A. </li></ul><ul><li>Specific definitions, regulations, exemptions and exclusions depend upon the governing agency for the exported item. </li></ul><ul><li>* Even within the United States! </li></ul>Export Control Facts: Presentation By James Shaw of Export Experts LLC
  15. 15. And there are trends towards more controls… <ul><li>As you need to be aware, the increased focus on imports and exports is due to the fact that their potential for use as terrorism tools is a reality. </li></ul><ul><li>The United States Government is increasing the focus on enforcement of technical information to persons within the United States that may not be entitled to receive such information (a “deemed export”) </li></ul><ul><ul><li>FBI College and University Security Effort “CAUSE” Program and Academic Alliance </li></ul></ul><ul><ul><li>http://www.fbi.gov/page2/april06/academicalliance040506.htm </li></ul></ul><ul><li>Increased focus on life sciences and biological materials. </li></ul>July 2009 Presentation By James Shaw of Export Experts LLC
  16. 16. Controls Also Apply to “Deemed Exports” <ul><li>What is a “Deemed Export”? This is an activity wherein goods or technology may not actually transfer from the United States, but can be information or technology (including educational materials) given to non-resident foreign persons… </li></ul><ul><li>NOTE: The “CAUSE” Security Program between the FBI and Educational Institutions is a useful example. </li></ul>July 2009 Presentation By James Shaw of Export Experts LLC
  17. 17. July 2009 <ul><li>Comply with all export laws and regulations in the US, and of each foreign country in which an activity may take place, except where the law of a foreign country may be inconsistent with U.S. law and in that case the U.S. Law will absolutely prevail! </li></ul><ul><li>Only develop and disseminate approved training and compliance-related materials as may be found within the United States’ government’s laws, regulations, policies, processes and controls with regard to such “Export Controls” to persons present in the United State, or in conjunction with persons located outside of the United States (i.e. employees, contractors, or other parties.) </li></ul><ul><li>Ensure that all records of Exports, Deemed Exports, & Import records and licenses are maintained in accordance with all U.S. government regulations and treaties. </li></ul><ul><li>Ensure all persons; employees, executives, management, supervisors, associates, trainees, academic faculty, administrative staff, and students understand their roles and responsibilities with regard to Export Control, including authorized agents, Import & Export Compliance License requirements (ECLPS), and shipping requirements </li></ul>Compliance Requirements: (not optional!) Presentation By James Shaw of Export Experts LLC
  18. 18. July 2009 Export Control Facts (Continued...) <ul><li>The Government also utilizes the term “Deemed Export” to describe export of technology, data, designs and R&D, or source code when released to a foreign national within the United States. </li></ul><ul><li>“ Release” is the making of technology or software available to foreign nationals, either visually, orally or by practice or application, under guidance of persons with knowledge of the technology or software </li></ul><ul><li>Such conditions Includes “use technology” – information on the operation, installation, maintenance, repair, overhaul, and/or refurbishing of controlled equipment and access to proprietary manual. </li></ul><ul><li>Be careful! </li></ul>Presentation By James Shaw of Export Experts LLC
  19. 19. <ul><li>Exports can occur when someone provides foreign persons “access” to technical information. For example, in the hosting of a visitor, the hiring of a consultant, and through the use of an outside legal/auditing/translation or other service. Simply giving a factory tour, giving a tour or demonstration in a laboratory, or the publishing or otherwise promulgation of technical data, including the making of presentations, even through casual talk and conversations, and do not overlook the impact of sending emails, faxes, data file transfers, etc. </li></ul><ul><li>Export control obligations may well exist if you provide data, drawings, technology or sample commodities to a person or business and/or have a reason to believe it will be passed on subsequently to a foreign country or person. </li></ul>Export Control Facts (Continued…) July 2009 Presentation By James Shaw of Export Experts LLC
  20. 20. United States Munitions List (ITAR) July 2009 Category I    Firearms, Close Assault Weapons and Combat Shotguns Category II   Materials, Chemicals, Microorganisms, and Toxins Category III   Ammunition/Ordnance Category IV  Launch Vehicles, Guided Missiles, Ballistic Missiles, Rockets, Torpedoes, Bombs and Mines Category V  Explosives and Energetic Materials, Propellants, Incendiary Agents and Their Constituents Category VI  Vessels of War and Special Naval Equipment. Category VII  Tanks and Military Vehicles Category VIII  Aircraft and Associated Equipment Category IX   Military Training Equipment Category X   Protective Personnel Equipment Category XI   Military Electronics Category XII  Fire Control, Range Finder, Optical and Guidance and Control Equipment Category XIII  Auxiliary Military Equipment Category XIV Toxicological Agents, Including Chemical Agents, Biological Agents, and Associated Equipment Category XV  Spacecraft Systems and Associated Equipment Category XVI  Nuclear Weapons, Design and Testing Related Items Category XVII Classified Articles, Technical Data and Defense Services Not Otherwise Enumerated Category XVIII  Directed Energy Weapons Category XX  Submersible Vessels, Oceanographic and Associated Equipment Presentation By James Shaw of Export Experts LLC
  21. 21. Establish the Export Commodity Control Number: <ul><li>The “ECCN” is an “intelligent number”, with at least 5 characters. </li></ul><ul><li>The first character is a Group Number </li></ul><ul><li>The second character is an Alpha designation of the Category of the Commodity </li></ul><ul><li>The Third through Fifth are numerical designations and details on the scope of control. Characters beyond #5 mean more strict restrictions may well apply. </li></ul>July 2009 Presentation By James Shaw of Export Experts LLC
  22. 22. Commerce Control List (EAR) <ul><li>0        Nuclear Materials, Facilities & Equipment & Misc. </li></ul><ul><li>1        Materials, Chemicals, “Microorganisms”, and Toxins </li></ul><ul><li>2        Materials Processing </li></ul><ul><li>3        Electronics </li></ul><ul><li>4        Computers </li></ul><ul><li>5        Telecommunication & Information Security </li></ul><ul><li>6        Sensors and Lasers </li></ul><ul><li>7        Navigation and Avionics </li></ul><ul><li>8        Marine </li></ul><ul><li>9 Propulsion Systems, Space Vehicles & Related Equipment </li></ul>July 2009 Presentation By James Shaw of Export Experts LLC
  23. 23. Product Groups Within Categories <ul><li>A Systems, Equipment and Components </li></ul><ul><li>B Test, Inspection & Production Equipment </li></ul><ul><li>C Materials </li></ul><ul><li>D Software </li></ul><ul><li>E Technology </li></ul>July 2009 Presentation By James Shaw of Export Experts LLC
  24. 24. How to Determine If You Need A License <ul><li>License requirements are dependent upon:  </li></ul><ul><li>What you are exporting (item’s characteristics) </li></ul><ul><li>Where you are exporting (destination) </li></ul><ul><li>Who will receive your item (s) (end-user) </li></ul><ul><li>What your item will be used for (end-use) </li></ul><ul><li>This determination is made by the organization’s Export Control and Compliance Manager, with assistance from other persons or agencies as may be needed. All of this can take time and effort. </li></ul>July 2009 Presentation By James Shaw of Export Experts LLC
  25. 25. CLASSIFICATION OF ITEMS <ul><li>Step 1 --- </li></ul><ul><li>Start by looking in the Commerce Control List under the category and product group relating to your item. Then read through the list to find whether your item is included in the list. </li></ul><ul><li>http://www.access.gpo.gov/bis/index.html </li></ul>July 2009 Presentation By James Shaw of Export Experts LLC
  26. 26. LICENSE REQUIREMENTS <ul><li>Step 2 --- Check reasons for control. </li></ul><ul><li>AT Anti-terrorist </li></ul><ul><li>CB Chemical & Biological Weapons </li></ul><ul><li>CC Crime Control </li></ul><ul><li>CW Chemical Weapons Convention </li></ul><ul><li>EI Encryption Items </li></ul><ul><li>MT Missile Technology </li></ul><ul><li>NS National Security </li></ul><ul><li>NP Nuclear Nonproliferation </li></ul><ul><li>RS Regional Stability </li></ul><ul><li>SS Short Supply </li></ul><ul><li>XP Computers </li></ul><ul><li>SI Significant Items </li></ul>July 2009 Presentation By James Shaw of Export Experts LLC
  27. 27. DESTINATION COUNTRY RULES <ul><li>Step 3 --- Check country chart to see if license is required. </li></ul><ul><li>Step 4 --- Screening. Certain individuals & organizations are prohibited from receiving U.S. exports (Entity List, Specially Designated Nationals & Blocked Persons List, Unverified List </li></ul>July 2009 Presentation By James Shaw of Export Experts LLC
  28. 28. July 2009 <ul><li>Export controls apply if the information/materials appear on either the International Traffic in Arms Regulations, known as ITAR Munitions List or the Export Administration Regulations’, (EAR) , Commerce Control List (CCL). </li></ul><ul><li>ITAR places strict controls on the export of “defense articles” and “defense services.” Defense articles include any item or technical data on the United States Munitions List (USML), and defense services include the furnishing of assistance to foreign persons, whether or not in the United States, with respect to defense articles, and the furnishing of any technical data associated with a defense article </li></ul><ul><li>There are exclusions that cover work performed in academic institutions and a license is not required to disseminate information if an exclusion applies </li></ul>When Do Export Controls Apply? Presentation By James Shaw of Export Experts LLC
  29. 29. July 2009 Export Control Decision Tree For Sponsored Projects Project involves equipment, software, chemicals, bio-agent or technology which is on the US Munitions List ( ITAR) Project involves equipment, software, chemicals, bio-agent or technology is classified as a defense article designed or modified for military use, use in outer space, or weapons (ITAR) Project involves encryption software in source or object code (EAR) No No Yes Yes Yes See Compliance Manager for an Export Control Review; Is foreign travel or shipment of articles under the project anticipated? Project involves items on the Commerce Control List (CCL) that are dual use in nature; having commercial or military application (EAR) Yes Project meets criteria for Research Exclusion and Not Subject to Export Controls Sponsored Programs and Grants Office shall prepare for required licenses upon award of government grant Yes No Yes Project involves a country with US imposed sanctions stipulated or restricted travel to an embargoed country by the US No Key Research and Review Web Sites http://www.pmddtc.state.gov/itar_index.htm (ITAR) http://www.access.gpo.gov/bis/index.html (EAR) http://www.treas.gov/offices/enforcement/ofac/programs/index.shtml (OFAC) Project involves equipment, software, chemicals, bio-agent or technology which is on the US Munitions List ( ITAR) Project results will be freely published with no restrictions, no NDA’s or Confidentiality Agreements No Yes Compliance Manager investigates and evaluates the nature of Export, foreign travel, license requirements, and any restrictions – Compliance Manager completes an Annual Export Certification when traveling abroad Presentation By James Shaw of Export Experts LLC
  30. 30. Definitions <ul><li>“ U.S. Person” is defined by ITAR 22 CFR §120.15 as: </li></ul><ul><li>  A person who is a lawful permanent resident or who is a protected individual. It also means any corporation, business association, partnership, society, trust, or any other entity, organization, or group that is incorporated to do business in the United States. It also includes any governmental (federal, state, or local) entity. It does not include any foreign person as defined in section ITAR 120.16 below </li></ul>July 2009 Presentation By James Shaw of Export Experts LLC
  31. 31. <ul><li>“ Foreign Person” is defined by ITAR 22 CFR §120.16 as: </li></ul><ul><li>Any natural person who is not a lawful permanent resident as defined by 8 USC. 1101(a)(20) or who is not a protected individual as defined by 8 USC. 1324b(a)(3). It also means any foreign corporation, business association, partnership, trust, society, or any other entity or group that is not incorporated or organized to do business in the United States, as well as international organizations, foreign governments, and any agency or subdivision of foreign governments (e.g. diplomatic missions ) </li></ul>Definitions (Continued…) July 2009 Presentation By James Shaw of Export Experts LLC
  32. 32. <ul><li>“ Technical Data” is defined by ITAR 22 CFR §120.10 as: </li></ul><ul><li>Information, other than software as defined in ITAR 120.10(4), which is required for the design, development, production, manufacture, assembly, operation, repair, testing, maintenance, or modification of defense articles. This includes information in the form of blueprints, drawings, photographs, plans, instructions, and documentation. </li></ul><ul><li>This definition does not include information concerning general scientific, mathematical, or engineering principles commonly taught in schools, colleges, and universities or information in the public domain as defined in 120.11. It also does not include basic marketing information on function or purpose or general system descriptions of defense articles. </li></ul><ul><li>Most University teaching and research falls under one or more of several possible exemptions </li></ul>Definitions (Continued…) July 2009 Presentation By James Shaw of Export Experts LLC
  33. 33. <ul><li>Classified information relating to defense articles and defense services </li></ul><ul><li>Information covered by an invention secrecy order </li></ul><ul><li>Software as defined in ITAR 121.8(f) directly related to defense articles </li></ul><ul><li>Be careful, double check and triple check the information to validate it. </li></ul>July 2009 Examples of technical data include: Presentation By James Shaw of Export Experts LLC
  34. 34. Definitions (Continued…) “ Technical Data” defined by EAR 15 CFR §772: (Title 15 Code of Federal Regulations Section 772) May take forms such as blueprints, plans, diagrams, models, formulae, tables, engineering designs and specifications, manuals, and instructions written or recorded on other media or devices such as disk, tape, or read-only memories (CD, DVD, et al.) July 2009 Presentation By James Shaw of Export Experts LLC
  35. 35. <ul><li>An “Export” is defined in ITAR 22 CFR §120.17 as: </li></ul><ul><li>Sending or taking a defense article out of the United States in any manner, except by mere travel outside of the United States by a person whose personal knowledge includes technical data </li></ul><ul><li>Transferring registration, control, or ownership to a foreign person of any aircraft vessel, or satellite covered by the U.S. Munitions List, whether in the United States or abroad </li></ul><ul><li>Disclosing (including oral or visual disclosure) or transferring in the United States any defense article to an embassy, any agency or subdivision of a foreign government (e.g., diplomatic missions) </li></ul><ul><li>Disclosing (including oral or visual disclosure) or transferring technical data to a foreign person, whether in the United States or abroad </li></ul><ul><li>Performing a defense service on behalf of, or for the benefit of, a foreign person, whether in the United States or abroad </li></ul><ul><li>A launch vehicle or payload shall not, by reason of the launching of such vehicle, be considered an export. However, for certain limited purposes, controls may apply to any sale, transfer, or proposal to sell or transfer defense articles or defense services </li></ul>July 2009 Definitions (Continued…) Presentation By James Shaw of Export Experts LLC
  36. 36. <ul><li>“ Export” is defined by EAR15 CFR §734.2(b) as: </li></ul><ul><li>An actual shipment or transmission of items subject to the EAR out of the United States, or release of technology or software subject to the EAR to a foreign national in the United States, as described in paragraph (b)(2)(ii) of the EAR, and paragraph (b)(9) for exports of encryption source code and object code software subject to the EAR. </li></ul>July 2009 Definitions (Continued…) Presentation By James Shaw of Export Experts LLC
  37. 37. Exclusions Possibly Applicable to Universities and Educational Facilities July 2009 <ul><li>Fundamental Research </li></ul><ul><li>Public Domain </li></ul><ul><li>Educational Information </li></ul><ul><li>Employment </li></ul>Presentation By James Shaw of Export Experts LLC
  38. 38. Fundamental Research Exclusion July 2009 <ul><li>Is defined in the EAR and ITAR as </li></ul><ul><li>Basic and applied research in science and engineering where the resulting information is ordinarily published and shared broadly within the scientific community </li></ul><ul><li>University research will not be considered fundamental research if: </li></ul><ul><li>(i) The University or its researchers accept restrictions on publication of scientific and technical information resulting from the project or activity, or </li></ul><ul><li>(ii) The research is funded by the U.S. Government and specific access and dissemination controls apply. </li></ul><ul><li>Foreign nationals may participate in research projects involving export-controlled information on campus in the US only, provided the foreign person is not restricted by OFAC </li></ul><ul><li>Transfer of export-controlled information including “Materials” or “Items” abroad, even to research collaborators, is still prohibited </li></ul>Presentation By James Shaw of Export Experts LLC
  39. 39. Exclusions (Continued…) July 2009 <ul><li>Information that is in the Public Domain is not subject to export controls (ITAR) and (EAR) if already published through </li></ul><ul><ul><ul><li>(a) Libraries open to the public, including most University libraries </li></ul></ul></ul><ul><ul><ul><li>(b) Unrestricted subscriptions; news-stands, or bookstores </li></ul></ul></ul><ul><ul><ul><li>(c) Published patents </li></ul></ul></ul><ul><ul><ul><li>(d) Conferences, meeting minutes seminars, trade shows, or exhibits held in the US (ITAR) or anywhere (EAR) which are generally accessible to the public for a fee and without the hosts’ knowledge of or control of who visits or downloads software/information </li></ul></ul></ul><ul><li>Educational Exclusion from EAR and ITAR </li></ul><ul><ul><li>Covers teaching to foreign nationals in the US or abroad general science, math , and engineering commonly taught in schools and Universities in formal course and in teaching laboratories of academic institutions – including information related to controlled Material or items </li></ul></ul><ul><ul><li>Does not cover controlled information conveyed outside the classroom or teaching lab of an academic institution </li></ul></ul>Presentation By James Shaw of Export Experts LLC
  40. 40. Exclusions (Continued…) July 2009 <ul><li>Employment exclusion may apply to individuals who: </li></ul><ul><ul><ul><li>(a) are full-time, bona fide corporate or university employees </li></ul></ul></ul><ul><ul><ul><li>(b) have permanent addresses in the U.S. while so employed </li></ul></ul></ul><ul><ul><ul><li>(c) who are not nationals of embargoed or sanctioned countries (i.e. a Cuban National, etc.) </li></ul></ul></ul><ul><ul><ul><li>http://www.treas.gov/offices/enforcement/ofac/programs/ </li></ul></ul></ul><ul><ul><ul><li>And, </li></ul></ul></ul><ul><ul><ul><li>(d) are advised in writing not to share controlled information with other foreign persons (keep records!) </li></ul></ul></ul><ul><li>Such persons are not considered foreign nationals under the ITAR </li></ul>Presentation By James Shaw of Export Experts LLC
  41. 41. July 2009 <ul><li>All persons, under any conditions, employees and/or students faced with a potential export situation must: </li></ul><ul><ul><li>Be aware of and comply with all policies, procedures, laws, and regulations concerning the organizations Export/Import activities </li></ul></ul><ul><ul><li>Ensure that no controlled information or equipment is shipped within or to outside the United States except with a license from the Department of Commerce, Department of State or other Agency, and utilizing an approved freight carrier (unless an exclusion applies, such as for a laptop computer used for fundamental research and under owner’s control at all times) </li></ul></ul><ul><ul><li>Always determine nationality of all collaborators, who they work for, and where they are located, before engaging in any controlled activity . Understand the “national identity of the persons under the defined terms.” </li></ul></ul><ul><ul><li>Compliance is a management responsibility, enforcement is required without exception and with no excuses. </li></ul></ul>Establish A Formal Corporate Policy Presentation By James Shaw of Export Experts LLC
  42. 42. July 2009 <ul><li>Ensure NO shipments are made to a country subject to OFAC sanctions or embargoes or Denied Parties, </li></ul><ul><li>The Policy shall be clearly understood that personnel are not to take chances or make assumptions, but consult with the Control and Compliance Chief before engaging in any Export/Import activities </li></ul><ul><li>Established Policies shall seek to protect the fundamental research exemption by negotiating the elimination of clauses that restrict </li></ul><ul><ul><ul><li>Publication </li></ul></ul></ul><ul><ul><ul><li>Access </li></ul></ul></ul><ul><ul><ul><li>Participation in research, teaching, or disclosure of results </li></ul></ul></ul>Establishment of Policy (Continued…) Presentation By James Shaw of Export Experts LLC
  43. 43. Getting More Information Via The Web <ul><li>VIEW THE FOLLOWING: </li></ul><ul><ul><li>http://www.fbi.gov/page2/April06/academicalliance040506.htm </li></ul></ul><ul><li>OR VIEW RECENT VIOLATIONS: </li></ul><ul><ul><li>http://efoia.bis.doc.gov/ExportControlViolations/TOCExportViolations.htm </li></ul></ul><ul><li>“ Don’t Let This Happen To You!” </li></ul>July 2009 Presentation By James Shaw of Export Experts LLC
  44. 44. NOW IT IS TEST TIME!! Question #1 <ul><li>Giving facility tours to students or employees of a foreign country may constitute an export. True or False? </li></ul>July 2009 Presentation By James Shaw of Export Experts LLC True False
  45. 45. Answer For Question #1 <ul><li>Giving facility tours to students or employees of a foreign country may constitute an export. Have your specific situation reviewed by the Manager of Export Control and Compliance and ensure that tours do not contain access to areas that contain export controlled material or technologies. </li></ul>July 2009 Presentation By James Shaw of Export Experts LLC True False
  46. 46. <ul><li>Question #2 </li></ul><ul><li>Once a license is obtained for exporting certain equipment, and all of the equipment on the license has been exported, there is no need to obtain additional licensing authority to export the same equipment in the future. True or False? </li></ul><ul><li>True </li></ul><ul><li>False </li></ul>July 2009 Presentation By James Shaw of Export Experts LLC
  47. 47. <ul><li>Answer for Question #2 </li></ul><ul><li>Each situation must be reviewed by the Department of Commerce or the Department of State licensing authority even if you intend to export the same equipment in the future. </li></ul><ul><li>False </li></ul>July 2009 Presentation By James Shaw of Export Experts LLC
  48. 48. <ul><li>Question #3 </li></ul><ul><li>You teach a graduate course on solid-state lasers which is listed in the course catalog. Materials on such lasers is available at the Library. Many of the students are foreign persons. You need to obtain a license from the Department of State for each such person before this information is disclosed to these foreign students? </li></ul><ul><li>True </li></ul><ul><li>False </li></ul>July 2009 Presentation By James Shaw of Export Experts LLC
  49. 49. <ul><li>Answer for Question #3 </li></ul><ul><li>Release of information by instruction in catalog courses and course laboratories of academic institutions, and in the Library, is not subject to EAR so no export license is (generally) required, </li></ul><ul><li>True </li></ul><ul><li>False </li></ul>July 2009 Presentation By James Shaw of Export Experts LLC
  50. 50. <ul><li>Question #4 </li></ul><ul><li>You are traveling abroad to Germany as part of a Government Grant activity. Since the trip abroad is not to an embargoed country there are no restrictions on your travel. </li></ul><ul><li>True </li></ul><ul><li>False </li></ul>July 2009 Presentation By James Shaw of Export Experts LLC
  51. 51. <ul><li>Answer for Question #4 </li></ul><ul><li>All personnel, faculty, staff and students traveling abroad must ensure by actual inspection and confirmation that no encrypted software exists on your laptop, PDA or cell phone and that these items are used as tools of the trade only. </li></ul><ul><li>True </li></ul><ul><li>False </li></ul>July 2009 Presentation By James Shaw of Export Experts LLC
  52. 52. Conclusion Statement… <ul><li>There are persons within the United States that are on a “Denied Persons List”, and organizations (e.g. Banks, Corporations, Educational Institutions) that are also on a prohibition list….. </li></ul><ul><li>So be aware and be careful that you do not violate the laws and regulations of the United States Government. </li></ul>July 2009 Presentation By James Shaw of Export Experts LLC
  53. 53. Questions? Now is the time to ask? <ul><li>This presentation was intended as a primary orientation and not an in-depth course on the scope of all of the controls promulgated by the United States Government. </li></ul><ul><li>WHEN IN DOUBT, CHECK IT OUT FIRST! </li></ul><ul><li>Contact http://www.Export Experts LLC.com </li></ul>July 2009 Presentation By James Shaw of Export Experts LLC

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