International Traffic in Arms Regulations/ Export Administration Regulations Nadcap ITAR/EAR Training for Auditors : International Traffic in Arms Regulations/ Export Administration Regulations Nadcap ITAR/EAR Training for Auditors
Required Training for All Nadcap Auditors : Required Training for All Nadcap Auditors The following presentation is required reading for all Nadcap Auditors. This information is provided here to keep you abreast of Federal regulations that may impact your audits. It is essential that you be aware of this law to assure compliance.
Please review the following information, print out the training affirmation page of the presentation and sign and return to PRI.
Following review of this information, should you have additional questions, contact your Staff Engineer.
What is ITAR & EAR? : What is ITAR & EAR? International Traffic in Arms Regulations
Code of Federal Regulations Parts 120 – 130
EAR
Export Administration Regulations
Full text of the Federal Law available at
(http://pmdtc.org/reference.htm)
“I am an Auditor -- Not an Arms Trafficker!” : “I am an Auditor -- Not an Arms Trafficker!” How Does this Impact Me?
Job audits and your ability to review blueprints, specifications, or other documentation may be impacted by this law.
U.S. Citizens, Registered Aliens, and valid Licensees are allowed to review this information, but then incur some responsibility under this law. These individuals are unrestricted.
Non-U.S. Citizens (not qualified by above) are not allowed to review material covered by this law and are considered restricted.
All auditors shall follow the requirements in
NIP 7-07.
What is the Impact to Me? : What is the Impact to Me? Many Nadcap participating prime contractors, are bound by this law and are required to assure control and relevant education.
As you audit their parts, you must be aware of the requirements of this law should you encounter any ITAR/EAR hardware.
The law provides for penalties including fines, jail, and civil penalties under U.S. criminal statutes.
Technical Data is an Exportable Commodity : Technical Data is an Exportable Commodity Technical data is included as an export under the ITAR regulations (http://pmdtc.org/reference.htm)
Information 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, process specifications, photographs, plans, instructions, and documentation.
Export : Export The definition of Export includes
Disclosing (including oral or visual disclosure) or transferring technical data to a foreign person whether in the U.S. or abroad or
Performing a defense service on behalf of, or for the benefit of, a foreign person, whether in the U.S., or abroad
Nadcap Internal Procedure 7-07 : Nadcap Internal Procedure 7-07 NIP 7-07 has been issued to address Nadcap requirements with regard to ITAR and EAR.
As defined in NIP 7-07, it is the Supplier’s responsibility to identify any auditable material that is restricted under ITAR and EAR.
The Auditor shall not be held liable for any unauthorized transfer of Restricted Data, unless such Auditor knew or should have known of the restricted nature of the data.
Nadcap Auditor Responsibilities : Nadcap Auditor Responsibilities Nadcap Auditors shall be thoroughly familiar with the requirements of NIP 7-07.
Nadcap Auditors shall comply with the requirements NIP 7-07.
Nadcap Auditors shall to aware of the ITAR/EAR regulations and understand the impact of these regulations.
Nadcap Auditors shall know their status as restricted or unrestricted and the roles and responsibilities of that status.
Nadcap Auditor Responsibilities (Continued) : Nadcap Auditor Responsibilities (Continued) Auditable material restricted by ITAR/EAR shall not be posted on eAuditNet or removed from the supplier facility by the Auditor. Contact the Staff Engineer for direction if objective evidence is necessary to support audit.
Recognizing ITAR/EAR Material : Recognizing ITAR/EAR Material May be identified as
ITAR/EAR Control
Export Control
Identification may be on:
Face of drawing
First sheet of specification or embedded in text
Purchase Order
May not be identified as such, but is on
the covered Munitions List
Applicable at Non-U.S. Suppliers : Applicable at Non-U.S. Suppliers Suppliers located outside of the U.S. may be licensed under this legislation and may be processing ITAR/EAR material
As Auditors for PRI and Nadcap, Restricted Auditors must be especially vigilant to comply with this U.S. law and avoid review of any ITAR/EAR material.
Overview of ITAR/EAR : Overview of ITAR/EAR An overview of the ITAR/EAR Law follows. This overview was originally presented at the NASA Export Control Program website at
http://www.hq.nasa.gov/office/codei/nasaecp/
and has been modified for purposes of relation to Nadcap. While the examples given relate to NASA activities, all items on the U.S. Munitions List are covered by this law.
Following review of this information and NIP 7-07 at the end of this presentation please print out the following page, sign and return via fax to the Auditor Staffing & Training Dept., +1 724/772-1699.
Slide14 : Definitions
Unrestricted Auditors – Citizens of the USA, Registered Aliens (Green Card Holders) and valid licenses issued to non-US citizens who are permitted access to information restricted under ITAR and EAR Guidelines.
Restricted Auditors – Non-US citizens who are not qualified to have access to information restricted under ITAR and EAR Guidelines.
Affirmation of ITAR/EAR Training : Affirmation of ITAR/EAR Training Name:___________________________
I have read the ITAR/EAR Overview and NIP 7-07 and I understand my role and responsibilities under this law. I understand that I am considered a
Restricted or Unrestricted Auditor
Circle the Appropriate
and will act in accordance with the requirements.
I understand that penalties for violation include fines, jail, civil penalties under U.S. criminal statutes.
If, during the course of a Nadcap Audit, I should knowingly come into contact with ITAR/EAR material, I shall act in accordance with NIP 7-07.
Signature______________________________________________
Date:_________________________________________________
Please fax to +1 724/772-1699 – Auditor Staffing & Training Dept.
U.S. EXPORT CONTROL LAWS AND REGULATIONS : U.S. EXPORT CONTROL LAWS AND REGULATIONS
This material is intended only as an overview tool and does not provide all substantive information needed to make a responsible export decision. Please contact your Center Export Administrator or Counsel for assistance in interpreting and applying U.S. export control laws and regulations to your specific export or import requirement.
Bob Tucker
Director, Assessments and Technology Division,
Office of External Relations
and NASA Export Administrator
INTRODUCTION : INTRODUCTION Just What Is An Export Anyway?
A Simplified Definition
The transfer of anything to a “FOREIGN PERSON” by any means, anywhere, anytime, or the knowledge that what you are transferring to a “U.S. PERSON”, will be further transferred to a “FOREIGN PERSON”.
U.S. Export Laws and Regulations : U.S. Export Laws and Regulations AECA and ITAR (USML) - 22 CFR 120
covers items such as Space Launch Vehicles (e.g., the Space Shuttle), rocket engines, certain spacecraft (including all remote sensing satellite systems), missile tracking systems, etc. (both the hardware and the technology)
EAA and EAR (CCL) - 15 CFR 730
covers what is commonly referred to as “dual-use” items, including the Space Station (the hardware and certain technology)
U.S. GOVERNMENT PLAYERS : U.S. GOVERNMENT PLAYERS STATE
COMMERCE
Bureau of Export Affairs
DEFENSE
Defense Threat Reduction
Joint Chiefs of Staff (JCS)
Others
Arms Control & Disarmament Agency
TREASURY
Customs
Office of Foreign Assets Control WHITE HOUSE
Office of Science & Technology Policy
National Security Council
U.S. Trade Representative
IC
TRANSPORTATION
Federal Aviation Administration
JUSTICE
Federal Bureau of Investigation
ENERGY
U.S. Export Laws and Regulations : U.S. Export Laws and Regulations Examples of Other U.S. Government Players, Laws & Regulations
Drug Enforcement Administration (21 CFR 1311)
Food and Drug Administration (21 USC 301)
Department of Interior (50 CFR 17.21,22,31,32)
Department of Treasury (31 CFR 500)
Department of Energy (10 CFR 205.300, 10 CFR 110 & 810)
Others
Reasons Certain Exports are Controlled : Reasons Certain Exports are Controlled National Security (NS)
Foreign Policy (FP)
Proliferation (MT, NP, CB)
Short Supply (SS)
Anti-Terrorism (AT)
Crime Control (CC)
High Performance Computer (XP)
Regional Stability (RS)
UN Sanctions (UN)
The International Traffic in Arms Regulations (ITAR) : The International Traffic in Arms Regulations (ITAR) 22 CFR 120-130
Administered by the Department of State (Office of Defense Trade Controls)
The United States Munitions List (USML)
21 categories of “Defense Articles/Services”
If an item is listed, it is subject to the ITAR
Example: Category IV - Launch Vehicles, Guided Missiles, Ballistic Missiles, Rockets, Torpedoes, Bombs and Mines
Example: Category XV - Spacecraft and Associated Equipment
The United States Munitions List (USML) : The United States Munitions List (USML) I - Firearms
II - Artillery Projectors
III - Ammunition
*IV - Launch Vehicles, etc.
*V - Explosives, 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
X - Protective Personnel Equipment
XI - Military Electronics
*XII - Fire Control, Range Finder, Optical and Guidance and Control Equipment *XIII - Auxilary Military Equipment
XIV - Toxicological Agents and Equipment and Radiological Equipment
*XV - Spacecraft Systems and Associated Equipment
XVI - Nuclear Weapons Design and Related Equipment
XVII - Classified Articles, Technical Data and Defense Services Not Otherwise Enumerated
XVIII - Reserved
XIX - Reserved
XX - Submersible Vessels, Oceanographic and Associated Equipment
XXI - Miscellaneous Articles
ITAR DEFINITIONS- Defense Article : ITAR DEFINITIONS- Defense Article Important ITAR Definitions
“Defense Article” - any item on the USML, including “technical data”.
ITAR DEFINITIONS - Public Domain : ITAR DEFINITIONS - Public Domain Important ITAR Definitions
Public Domain - information which is published and which is generally accessible or available to the public:
through sales at news stands and bookstores;
through subscriptions which are available without restriction to any individual who desires to obtain or purchase the published information;
through second class mailing privileges granted by the U.S. government
ITAR DEFINITIONS - Public Domain : ITAR DEFINITIONS - Public Domain Important ITAR Definitions
Public Domain (cont’d)
at libraries open to the public or from which the public can obtain documents;
through patents available at any patent office
through unlimited distribution at a conference, meeting, seminar, trade show or exhibition,, generally accessible to the public, in the United States;
ITAR DEFINITIONS - Public Domain : ITAR DEFINITIONS - Public Domain Important ITAR Definitions
Public Domain (cont’d)
through 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.
through fundamental research in science and engineering at accredited institutions of higher learning in the U.S. where the resulting information is ordinarily published and shared broadly in the scientific community.
ITAR DEFINITIONS - Public Domain : ITAR DEFINITIONS - Public Domain Important ITAR Definitions
Public Domain (cont’d)
Fundamental research is defined to mean basic and applied research in science and engineering where the resulting information is ordinarily published and shared broadly within the scientific community, as distinguished from research the results of which are restricted for proprietary reasons or specific U.S. government access and dissemination controls.
ITAR DEFINITIONS - Public Domain : ITAR DEFINITIONS - Public Domain Important ITAR Definitions
Public Domain (cont’d)
University research will not be considered “fundamental research” if:
the University or its researchers accept other restrictions on publication of scientific and technical information resulting from the project or activity, or
the research is funded by the U.S. government and specific access and dissemination controls protecting information resulting from the research are applicable.
ITAR DEFINITIONS - Technical Data : ITAR DEFINITIONS - Technical Data Important ITAR Definitions
Technical Data - information which is required for the design, development, production, manufacture, assembly, operation, repair, testing, maintenance, or modification of “defense articles”; classified information related to “defense articles”; information covered by an invention secrecy order; software directly related to “defense articles”.
ITAR DEFINITIONS - Technical Data : ITAR DEFINITIONS - Technical Data Important ITAR Definitions
Technical Data (cont’d) - does not include information concerning general scientific, mathematical or engineering principles commonly taught in schools, colleges and universities or information in the “public domain”. It also does not include basic marketing information on function or purpose or general system descriptions of “defense articles”.
ITAR DEFINITIONS - U.S. Person : ITAR DEFINITIONS - U.S. Person Important ITAR Definitions
U.S. Person - a natural person who is a lawful permanent resident as defined in 8 U.S.C. 1101(a)(20) or who is a protected individual as defined by 8 U.S.C. 1324b(a)(3). 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 U.S. It also includes any governmental (federal, state or local), entity.
ITAR DEFINITIONS - Foreign Person, Export : ITAR DEFINITIONS - Foreign Person, Export Important ITAR Definitions
Foreign Person - opposite of U.S. Person.
Export - sending or taking a “defense article” out of the U.S. in any manner, except by mere travel outside of the U.S. by a person whose personal knowledge includes “technical data”; or transferring registration, control, or ownership to a “foreign person” of any aircraft, vessel, or satellite covered by the USML, whether in the U.S. or abroad; or
ITAR DEFINITIONS - Export : ITAR DEFINITIONS - Export Export (cont’d) - 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); or disclosing (including oral or visual disclosure) or transferring “technical data” to a “foreign person”, whether in the U.S. or abroad; or performing a “defense service” on behalf of, or for the benefit of, a “foreign person”, whether in the U.S. or abroad. Particular note for Nadcap
ITAR PROSCRIBED COUNTRIES : ITAR PROSCRIBED COUNTRIES Proscribed Countries - 22 CFR 126.1
If a country appears on this list, it is (generally) U.S. policy to deny licenses, or other approvals, associated with exports and imports of defense articles and defense services, destined for or originating in that country.
ITAR License Exemptions are trumped if a “foreign person” from any of these counties is involved; i.e., a license must be applied for.
ITAR - PROSCRIBED COUNTRIES LIST (22 CFR 126.1) : ITAR - PROSCRIBED COUNTRIES LIST (22 CFR 126.1) AFGHANISTAN
ANGOLA
ARMENIA
AZERBAIJAN
BELARUS
BURMA
CHINA (PRC)
CYPRUS
CUBA
HAITI
INDIA
IRAN
IRAQ
LIBERIA LIBYA
NIGERIA
NORTH KOREA
PAKISTAN
RWANDA
SOMALIA
SUDAN
SYRIA
TAJIKISTAN
VIETNAM
YEMAN
FEDERAL REPUBLIC OF YUGOSLAVIA
SERBIA
MONTENEGO
ZAIRE
The Export Administration Regulations (EAR) : The Export Administration Regulations (EAR) Administered by the Department of Commerce (Bureau of Export Administration)
The Commerce Control List (CCL)
Divided into ten (10) categories (0 to 9)
Complete listing of items controlled by the EAR
Example: Category 9- Propulsion Systems, Space Vehicles and Related Equipment
The (New) Export Administration Regulations (EAR) : The (New) Export Administration Regulations (EAR) 15 CFR 730-774
Category 0 - Nuclear Materials, Facilities and Equipment and Misc.
Category 1 - Materials, Chemicals, Microorganisms and Toxins
Category 2 - Materials Processing
Category 3 - Electronics
Category 4 - Computers
Category 5 - Communications, telecommunications
Category 6 - Optics, Cameras, Lasers, radar
Category 7 - Guidance, navigation, altimeters, avionics
Category 8 - Submersible systems, scuba, marine equipment
Category 9 - Propulsion Systems, space vehicles,
EAR DEFINITIONS - Export : EAR DEFINITIONS - Export Important EAR Definitions
Export - 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 U.S.
EAR DEFINITIONS - Controlled Technology : EAR DEFINITIONS - Controlled Technology Important EAR Definitions
Controlled Technology - specific information required for the “development”, “production”, or “use” of a product which is itself “controlled”. The information takes the form of “technical data” or “technical assistance”.
EAR DEFINITIONS - Technical Data : EAR DEFINITIONS - Technical Data Important EAR Definitions
Technical Data - 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.
Technical Assistance - may involve transfer of “technical data”
EAR DEFINITIONS - Reexport, Publicaly Available Information : EAR DEFINITIONS - Reexport, Publicaly Available Information Important EAR Definitions
Reexport - shipment from one foreign country to another foreign country
Publicly Available Information - information that is generally accessible to the interested public in any form and, therefore, not subject to the EAR
EAR DEFINITIONS - Publicly Available Technology and Software : EAR DEFINITIONS - Publicly Available Technology and Software Important EAR Definitions
Publicly Available Technology and Software - that technology and software that are already published or will be published; arise during, or result from fundamental research; are educational; or are included in certain patent applications (see 15 CFR 734)
EAR DEFINITIONS - Items subject to the EAR : EAR DEFINITIONS - Items subject to the EAR Important EAR Definitions
Items Subject to the EAR - items listed on the Commerce Control List (CCL) and those items designated as EAR 99
EAR EXPORT CONTROL CLASSIFICATION NUMBER : EAR EXPORT CONTROL CLASSIFICATION NUMBER Export Control Classification Number (ECCN) - a five character, Alpha-numeric symbol; e.g., 9A004
First Character (Digit)- identifies CCL category; e.g., 9 is Propulsion Systems, Space Vehicles and Related Equipment
Second Character (Letter)- identifies which of five “groups” the item is associated with; e.g., A is Equipment, Assemblies and Components
EAR EXPORT CONTROL CLASSIFICATION NUMBER : EAR EXPORT CONTROL CLASSIFICATION NUMBER Export Control Classification Number (ECCN) - a five character, alpha-numeric symbol; e.g., 9A004
Third through Fifth Characters (Digits)- identifies the type of control(s)
EAR CLASSIFICATION REQUESTS : EAR CLASSIFICATION REQUESTS Classification Requests
If an exporter is unable or uncomfortable in determining the “classification” of the item to be exported, a “classification” can be requested from BXA. BXA is obliged to “classify” an item or advise an exporter that an item is not subject to the EAR (and may be subject to the jurisdiction of another agency).
Typically takes 10 working days from receipt at BXA
EAR LICENSE EXCEPTIONS : EAR LICENSE EXCEPTIONS License Exceptions - 15 CFR 740
Examples
TMP (use for certain temporary exports up to one year)
GOV (U.S. gov’t official use and use by gov’t agencies of cooperating countries in their national territory)
BAG (your right to take your personal belongings out of the country on a trip)
CAUTION - Use exceptions with care and read all conditions/provisions.
ENHANCED PROLIFERATION CONTROL INITIATIVE (EPCI) : ENHANCED PROLIFERATION CONTROL INITIATIVE (EPCI) Scope
Foreign Policy controls requiring individual validated license (IVL) if U.S. exporter knows or is informed that Commodity is destined to a missile activity
Origin
Executive order 12735, Nov 16, 1990
Interim rule announced, Aug 15, 1991
Nadcap Procedure NIP 7-07 : Nadcap Procedure NIP 7-07
Nadcap Procedure NIP 7-07 Cont’d. : Nadcap Procedure NIP 7-07 Cont’d. 5.0 Guidelines for Restrictions
5.1 Suppliers Responsibility
Prior to and at the beginning of the audit, the Supplier shall identify specifications, processes, and drawings (referred to as “auditable material”) which are restricted under the ITAR and EAR. The Supplier shall contact the owner of any information for clarification when unsure about whether information is export controlled under ITAR or EAR.
The Auditor should remind the Supplier of this obligation. The Auditor shall not be held liable for any unauthorized transfer of Restricted Data, unless such Auditor knew or should have known of the restricted nature of the data.
In the event auditable material is under the ITAR and EAR, the supplier can either:
Request an Unrestricted Auditor, or
Work with PRI Staff (Unrestricted Staff per 2.0) to provide and discuss appropriate auditable material, so that the PRI staff can provide appropriate direction to Restricted Auditors or
Limit the audit to auditable material not restricted under the ITAR and EAR.
Nadcap Procedure NIP 7-07 Cont’d. : Nadcap Procedure NIP 7-07 Cont’d. 5.2 PRI/Nadcap Responsibility
Appropriate guidelines and documentation is essential for conformance to the ITAR and EAR. Therefore, the following items shall be included in the business operations:
a. Supplier agreements notifying applicants of ITAR and EAR requirements/concerns shall be signed when scheduling an audit.
b. The supplier shall be notified by the Scheduling Staff when the auditor is assigned whether their scheduled auditor is Restricted or Unrestricted.
c. No auditable material, restricted by the ITAR and EAR shall be posted on eAuditNet.
d. Auditable material, identified as export controlled and/or otherwise restricted by the ITAR and EAR, shall not be removed from the supplier’s property.
e. Auditors shall be provided appropriate counseling as to the ITAR and EAR regulations.
f. Staff will be provided training as to the intent of these regulations. Training will be listed on h-frm-02 “PRI New Nadcap Employee Checklist”, or the Affirmation of ITAR/EAR Training sheet, as applicable.
g. In the event that information covered under the ITAR or EAR are inadvertently witnessed by a Restricted Auditor, the auditor shall note this event in their Cover Letter in eAuditNet and inform the Supplier. This event shall also be formally reported to PRI via telephone call to the appropriate Staff Engineer within 1 calendar week following the close of the audit.
Nadcap Procedure NIP 7-07 Cont’d. : Nadcap Procedure NIP 7-07 Cont’d. 5.2 PRI/Nadcap Responsibility Continued –
h. NMC/Task Groups members who are Restricted per Section 2.0 shall not review auditable material restricted by the ITAR and EAR.
i. Any exceptions, deviation or non-compliance to these guidelines shall be duly noted in an incident report (i-frm-37) initiated by the appropriate Staff Engineer. The Prime Members of the Task Group shall be notified and consulted to determine any additional actions required. (i.e. Notification of Appropriate Personnel, Organizations, etc.)
Nadcap Procedure NIP 7-07 Cont’d : Nadcap Procedure NIP 7-07 Cont’d 6.0 REFERENCE DOCUMENTS
Quality Manual
7.0 DOCUMENT REVISION HISTORY