The following items are useful for addressing deemed export issues.

Transcription

1 DEEMED EXPORTS AND RE-EXPORTS STARTER KIT The following items are useful for addressing deemed export issues. McGrath Law Group, L.L.C. Attachment 1 Deemed Export Awareness Summary Attachment 2 Key Terms and Policies Attachment 3 Resources Attachment 4 Sample Policy for Marking Technical Data Attachment 5 Sample Technology Control Plan Attachment 6 ITAR Non-Disclosure Agreement Sample

2 ATTACHMENT 1 [Company] DEEMED EXPORTS AND RE-EXPORTS LICENSING REQUIREMENTS FOR FOREIGN EMPLOYEES AND VISITORS In its day-to-day operations, each [Company] business unit must ensure compliance with U.S. export control laws. One issue that occurs with increasing frequency as business becomes globalized is the need to obtain export licenses for any foreign visitors or company employees that will have access to technical data that is controlled by the U.S. export agencies. [Company] may recruit and hire technically qualified individuals from other countries. [Company] also may employ school-year or summer interns who are foreign nationals participating in undergraduate and graduate degree programs at U.S. universities. Other programs may require that [Company] employees disclose, release or transfer controlled technology to foreign engineers visiting the U.S. Obviously, the same situation arises with any vendors or customers, whether in the U.S. or abroad, who may have employees from many countries.. Certain items being used or manufactured by the company may be subject to export control requirements under the Export Administration Regulations (EAR) (15 C.F.R. Pts ) and/or the International Traffic in Arms Regulations (ITAR) (22 C.F.R. Pts ). These regulations restrict the disclosure, release or transfer of controlled technology to foreign nationals overseas or in the United States, including foreign nationals working for U.S. companies as permanent employees, interns, and temporary workers. There may be other regulations or government contract terms restricting access to data by foreign persons, including security regulations for classified information, embargo rules, etc. that come into play, as well. These restrictions and related authorization requirements apply to all foreign nationals (i.e., non- U.S. citizens) unless they have permanent resident alien status or are otherwise "protected individuals" under refugee and asylum provisions of U.S. immigration law. Foreign nationals with student or work visas still fall within these restrictions and authorization requirements. If the technology is controlled under the EAR or ITAR, a specific authorization from the Commerce Department or State Department respectively, and a tailored non-disclosure agreement from the foreign national, must be obtained before controlled technology may be disclosed, released or otherwise transferred to that person. This is true EVEN IF THE RELEASE OF DATA OCCURS IN THE UNITED STATES. It is very important to contact the export control administrator as early as possible to seek approval for the foreign visitor or employee. The country (or countries) of nationality of the person (and their employer) can make a difference in this analysis, and the rules governing nationality are complex. In cases where a license is needed, the application process can take many weeks. Failure to properly obtain and manage deemed export licenses may result in civil or criminal fines, the loss of the company's export privileges, or suspension or debarment from government contracting.

3 DEEMED EXPORTS AND RE-EXPORTS KEY TERMS AND CONCEPTS ATTACHMENT 2 Dual National: A dual national is a foreign national that has more than one nationality, when applying the nationality rules used by BIS or DDTC. In the licensing context, for ITAR purposes, a dual national employee is one who is a national of the country of his employer and also of another country outside the United States. Establishing Nationality EAR: BIS bases licensing requirements for a foreign national on his or her most recently established country of citizenship or permanent residency. ITAR: DDTC bases licensing requirements for a foreign national on all current and former foreign countries of nationality and/or residency. Note: When establishing nationality, not only should the nationality/residency of the foreign national be considered, the nationality of a foreign person s employer should be considered as well. Export EAR: (15 CFR 734.2(b)): (1) Definition of export. Export means 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 this section. See paragraph (b)(9) of this section for the definition that applies to exports of encryption source code and object code software subject to the EAR. (2) Export of technology or software. (See paragraph (b)(9) for provisions that apply to encryption source code and object code software.) Export of technology or software, excluding encryption software subject to EI controls, includes: (i) Any release of technology or software subject to the EAR in a foreign country; or (ii) Any release of technology or source code subject to the EAR to a foreign national. Such release is deemed to be an export to the home country or countries of the foreign national. This deemed export rule does not apply to persons lawfully admitted for permanent residence in the United States and does not apply to persons who are protected individuals under the Immigration and Naturalization Act (8 U.S.C.

4 1324b(a)(3)). Note that the release of any item to any party with knowledge a violation is about to occur is prohibited by 736.2(b)(10) of the EAR. (3) Definition of release of technology or software. Technology or software is released for export through: (i) Visual inspection by foreign nationals of U.S.-origin equipment and facilities; (ii) Oral exchanges of information in the United States or abroad; or (iii) The application to situations abroad of personal knowledge or technical experience acquired in the United States. (Emphasis added) ITAR: (22 CFR ): (1) 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; or (2) 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; or (3) 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 (4) Disclosing (including oral or visual disclosure) or transferring technical data to a foreign person, whether in the United States or abroad; or (5) Performing a defense service on behalf of, or for the benefit of, a foreign person, whether in the United States or abroad. (Emphasis added) ITAR: 22 CFR (1) Information, other than software as defined in (a)(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 or documentation. (2) Classified information relating to defense articles and defense services; (3) Information covered by an invention secrecy order; (4) Software as defined in 121.8(f) of this subchapter directly related to defense articles; (5) 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 It also does not

5 include basic marketing information on function or purpose or general system descriptions of defense articles. Export License Requirements for Technology under the Deemed Export Rule EAR: If the controls imposed per the Export Control Classification Number (ECCN) applicable to the technology result in licensing requirements to a particular country of destination (per the Commerce Country Chart), and no license exception is available, a license from the Bureau of Industry and Security (BIS) must be obtained. U.S. entities must apply for an export license under the deemed export rule when both of the following conditions are met: (1) they intend to transfer controlled technologies to foreign nationals in the U.S. and (2) transfer of the same technology to the foreign national's home country would require an export license. ITAR: Unless an exemption is available, a DDTC license will be required for a deemed export or re-export. (For definition of controlled technical data, see definition of technical data.) Foreign Nationals Not Subject to the Deemed Export Rule Any foreign national is subject to the deemed export rule except a foreign national who: (1) is a permanent resident (i.e., green card holder); (2) is granted U.S. citizenship; or (3) is a protected person (i.e., political refugees and political asylum holders) under 8 U.S.C. 1324b(a)(3). Re-Export/Re-Transfer EAR: An actual shipment or transmission of items subject to the EAR from one foreign country to another foreign country; or release of technology or software subject to the EAR to a foreign national outside the United States. 15 CFR 734.2(b)(4). ITAR: The transfer of defense articles or defense services to an end-use, end-user, or destination not previously authorized by license, written approval, or exemption pursuant to [the ITAR]. 22 CFR Re-Export of Technology or Software ( Deemed Re-Export ) EAR: Any release of technology or source code subject to the EAR to a foreign national of another country is a deemed re-export to the home country or countries of the foreign national. 15 CFR 734.2(b)(5). For example, after a licensed export of data to another country (e.g., France) a national of a third country (e.g., Germany) observes the data while still in that country (France). This would be a deemed re-export to Germany. TCP: Technology Control Plan. Technology/Technical Data EAR: Specific information necessary for the development, production, or use of a product. 15 CFR According to the General Technology Note to Commerce Control List (CCL), the export of technology is controlled according to the provisions of each Category and... technology required for the development, production, or use of a controlled

6 product remains controlled even when applicable to a product controlled at a lower level. 15 CFR Pt. 774, Supp. 2. For definitions of required, development, production, and use, see 15 CFR Third Country National A third country national is a foreign national from a country other than the country for which an approval has been granted. This might arise any time a new or additional country comes into play in a licensing scenario. It may be because a new person with another nationality needs to be added to a license. It may be that a dual national s second nationality was not covered in the license. It may be that the (single) nationality of a foreign employee is different than the foreign company obtaining the export license. U.S. Person: EAR: (1) Any individual who is a citizen of the United States, a permanent resident alien of the United States, or a protected individual as defined by 8 U.S.C. 1324b(a)(3); (2) Any juridical person organized under the laws of the United States or any jurisdiction within the United States, including foreign branches; and (3) Any person in the United States. 15 CFR ITAR: A person... who is a lawful permanent resident as defined by 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 United States. It also includes any governmental (federal, state or local) entity. It does not include any foreign person CFR

7 ATTACHMENT 3 DEEMED EXPORTS AND RE-EXPORTS RESOURCES BIS Deemed Export FAQ s: BIS Questions and Answers to Supplement Clarification of Deemed Export Related Regulatory Requirements: BIS Guidelines for Preparing Export License Applications Involving Foreign Nationals Fact Sheet Regarding Revised I-9 Form Certification of Compliance with Export Controls Regarding the Release of Technology or Technical Data to Foreign Person Beneficiaries: BIS Qs & As for Proposed Rule Establishing License Exception Intra-Company Transfer (ICT): DDTC Guidance on Licensing of Foreign Persons Employed by a U.S. Person: DDTC Guidelines for Preparing Electronic Agreements: lectronic%20agreements%20revision%203%20(2).pdf EAR License Exception TSR: : &idno=15 EAR License Exception STA:

8 5: &idno=15 ITAR Intra-Company License Exception : &idno=22

9 DEEMED EXPORTS AND RE-EXPORTS POLICY FOR MARKING AND IDENTIFYING TECHNICAL DATA [Company] Marking Technical Data ATTACHMENT 4 To a certain extent, the ITAR and the EAR set forth statements/legends to be included on shipping/invoice documentation that identifies that a commodity is subject to the export controls pursuant to a particular statute and the implementing regulations. However, note that neither the ITAR nor the EAR contain any provisions regarding the marking of technical data with an export control legend, but it is understood to be a best practice. ITAR 123.9(b) sets forth a statement that should be included on a bill of lading and invoice whenever ITAR-controlled articles are exported. Further, when ITAR-controlled articles are exported via the U.S. Postal Service, ITAR sets forth statements for marking the package being exported. EAR sets forth a destination control statement that should be included on a bill of lading, invoice or other export control document for exports of items on the CCL that are not classified under EAR99. Provided below is a suggested statement that can be used for marking the technical data, and supplemented statements that can be included on the export control documents (e.g., bill of lading, invoice). ITAR Statements: data: Legend to be included (on 1st page and/or every page) on ITAR-controlled technical NOTICE - This document contains technical data that is subject to export controls under the Arms Export Control Act (22 U.S.C et seq.) and the International Traffic in Arms Regulations (22 C.F.R. 120, et seq.). This data may not be re-exported/transferred/disclosed by any means to any other foreign person without the prior approval of the U.S. Department of State, Directorate of Defense Trade Controls (DDTC). Legend to be included on documents (e.g., bill of lading, invoice, ) transmitting/accompanying technical data being exported:

10 EAR Statements: McGrath Law Group, L.L.C. This technical data is being exported under [indicate DDTC License No. or license exemption] and is subject to the Arms Export Control Act (22 U.S.C et seq.) and the International Traffic in Arms Regulations (22 C.F.R. 120, et seq.). This technical data is authorized by the U.S. Government for export only to [country of destination] for use by [foreign end-user]. This technical data may not be transferred or otherwise be disposed of in any other country, either in their original form or after being incorporated into other end items, without the prior written approval of the U.S. Department of State. Legend to be included (on 1st page and/or every page) on EAR-controlled technical data: NOTICE - This document contains technical data that is subject to export controls under the Export Administration Act of 1979 (EAA) (50 U.S.C. app ) and the Export Administration Regulations (EAR) (15 C.F.R. Pts ). Approval from the U.S. Department of Commerce, Bureau of Industry and Security (BIS) may be required for the export, re-export, transfer or disclosure to a foreign person, whether in the United States or abroad. Basic destination control statement to be included on documents (e.g., bill of lading, invoice, ) transmitting/accompanying technical data being provided domestically and being exported: This is being exported from the United States in accordance with the Export Administration Regulations. Diversion contrary to U.S. law prohibited. Alternative: This technology is subject to export control requirements under the Export Administration Regulations of the U.S. Commerce Department, and fall within [Commerce Control List ECCN [number] or EAR99]. The recipient of this technology is responsible for determining if an export license is required from the Bureau of Industry and Security, U.S. Commerce Department, prior to export from the United States or re-export from a foreign country.

11 ATTACHMENT 5 [COMPANY] TECHNOLOGY CONTROL PLAN (TCP) I. OVERVIEW The U.S. Department of Commerce regulates certain dual-use technologies, materials, and items by the Export Administration Regulations (EAR) and the U.S. Department of State controls the export of defense articles, defense services and defense-related technical data through the International Traffic in Arms Regulation (ITAR). Disclosure of classified information is governed by the National Industrial Security Program Operating Manual (NISPOM) Each employee is personally responsible for safeguarding export-controlled data/information, i.e. Controlled Technical Data, as required by the above federal agencies from disclosure to foreign persons without prior approval. An export license from the U.S. government is required before a foreign national may be given access to hardware or technology controlled by either the U. S. Department of Commerce or the U. S. Department of State. No release of classified information (i.e. confidential, secret, top secret) is permitted to any person without the proper security level clearance and a documented need to know for that specific information. II. SCOPE [Company] designs, manufactures, integrates, and operates systems and products in technologies relating to [describe product] and, and in the course of its technical and related business activities, may employ Foreign Nationals or have Foreign Nationals visit the Company facilities. This procedure applies to all elements of the Company. Disclosure of controlled information to Foreign Nationals in the course of employment or during visits is considered a deemed export and is subject to a Department of Commerce OR Department of State license or exception. Further, classified information is subject the National Industrial Security Manual (NISPOM). III. PURPOSE All controlled hardware, software, technical documentation, data, intellectual property, and know-how transfers out of the U.S. (or to any Foreign Nationals in the U.S.) must have the authorization of the supervisor and be in accordance with any applicable export licenses. All Company employees working on any program containing controlled technology must ensure that controlled hardware, software, documentation/data, and/or know-how or intellectual property is not improperly released to any Foreign Nationals.

12 The purpose of this TCP is to identify the controls necessary to prevent unauthorized transfer of technology or software to Foreign Nationals beyond that which is approved by the Department of Commerce, Bureau of Industry and Security (BIS), the Department of State, Directorate of Defense Trade Controls (DDTC), or any other applicable government agency (e.g., Department of Defense). IV. DEFINITIONS See Attachment C for definitions of terms used in this TCP. V. ACCESS TO TECHNOLOGY Controlled technology may be accessed by Foreign Nationals to the extent necessary to fulfill their designated duties in accordance with the job description submitted to the cognizant Government agency for the individual. Access to such data will be controlled by the supervisor to whom the Foreign Person reports. A. CLASSIFIED TECHNICAL DATA Under the provisions of the Industrial Security Manual, Limited Access Authorization to classified information is not provided to foreign persons, except under extraordinary circumstances. Foreign Persons, therefore, are normally prohibited access to facilities, documentation and records: and design development and test areas where classified work is in process. Employee badges will be marked to prohibit such access. Foreign visitors and employees can have access to classified information when the company has a license or agreement for the release of the technology and an assurance from the foreign government advising the employee or visitor has been approved for access to classified programs. B. UNCLASSIFIED TECHNICAL DATA 1. Unclassified data may be accessed by foreign persons to the extent necessary to fulfill their designated duties in accordance with the job description submitted with the Department of State License Application Form DSP-5 for the individual. Access to such data will be controlled by the supervisor to whom the foreign national reports. 2. Foreign Persons are not authorized access to any advanced technology materials under U.S. government contracts; nor to any advanced technology material on the U.S. Munitions List not under U.S. Government contract unless approved under a specific export license. VI. TRAINING OF FOREIGN PERSON EMPLOYEES A. Foreign Nationals hired by Company will be informed that an export license will be required from the U.S. Government before they have access to hardware or technical data concerning controlled technology. Further, Foreign Nationals will be informed as to their

13 responsibility to treat all technical information obtained during their employment in accordance with Company s corporate procedures for the protection of sensitive data. B. All Foreign Nationals will be briefed in those areas of export control and export licensing, as set forth in the guidelines provided by the BIS, DDTC and other U.S. agencies, which are pertinent to their activities. All authorized Foreign Nationals working for Company on its programs will be provided refresher briefings every six months and will have their actions reviewed by the supervisor semi-annually to ensure compliance with this TCP for the duration of the program. The semi-annual briefings will specifically detail the hardware, technology, knowhow, data, drawings, software, and information that may be or may not be exported. The supervisor will report semi-annually to the appropriate export official to ensure compliance with this TCP. If required, more frequent briefings will be provided for especially sensitive programs. In all cases, new personnel will be briefed before they enter the program. C. Foreign Nationals will be made responsible for adherence to facility security rules, policies and procedures relating to in-plant regulations for personnel. Foreign Nationals will be advised that issues relating to access to controlled technology will be reviewed by Company supervisory and export compliance personnel. All Foreign Nationals will be notified of the sanctions imposed by Company for deliberate violations of export control laws. VII. OVERSIGHT OF FOREIGN VISITORS A. No Foreign National will be given access to controlled material on any project which involves the disclosure of technology as defined in the EAR or ITAR until that individual s license authority has been approved by the cognizant Government agency. B. Employees of Company who have supervisory responsibility for Foreign Visitors must be briefed in those areas of export control and export licensing, and the guidelines provided by the BIS, DDTC and other U.S. agencies, which are pertinent to their activities. In addition, applicable supervisory personnel and employees will be apprised of the content of this procedure so they will be fully aware of their responsibilities regarding possible technology transfer. C. Company will hold briefings in advance of meetings or technical discussions with foreign visitor(s). The supervisor will provide a briefing for all meeting participants and other company personnel charged with escorting the foreign visitor(s). The following information, as a minimum, will be specifically addressed in these briefings: Authorized data exportable under the approved export license. Requirements and limitations imposed by the license. The areas and activities of the facility to which the visitors will be given access. Visitor escort requirements.

14 All other requirements of this TCP, especially as they relate to the prior approval of technology proposed for export. VIII. NONDISCLOSURE STATEMENT AND ACKNOWLEDGEMENT All Foreign Nationals to whom technology will be disclosed under license by BIS, or DDTC will be required to sign the Nondisclosure Agreement (see attachment A). The briefing form (Attachment B) will be signed by each Foreign National and the briefer. IX. ESCORTS All foreign visitors will be issued escort-only badges. The badge will indicate that the person is foreign national, for which disclosure of export controlled information may require an export license or can be disclosed pursuant to an export license exemption/exception. In some instances, Company will set up a controlled area, designated as a controlled location, where technical discussions can occur without the possibility of releasing unauthorized information or inadvertent access of information due to physical proximity. Upon entry to Company, the Foreign Nationals will receive an escort-only badge and then be escorted to the controlled area. Only information that is releasable will be provided or moved to the controlled area for review. The supervisor will monitor usage of controlled information by any Foreign Nationals. X. COMPUTER ACCESS Foreign Nationals access to Company s computer system databases will be limited to that segment of the computer database containing only releasable information. No other access will be authorized. Shared databases will not be utilized unless permitted by license or exception. Information entered into the computer system used by the Foreign Nationals will be screened by the supervisor and export control manager or their designee. Once entered, information within the database will be considered transferred technology. XI. TERMINATION Upon employment termination, the Foreign National will be required to execute a statement regarding Company s equipment and written material. This statement will certify that the Foreign National has not given or disclosed to any unauthorized person any documents, reports, or other data which is considered to be controlled technology or sensitive information. XII. GENERAL A. No employee or other person acting on behalf of Company will, without prior approval, ship, mail, hand carry or transmit controlled technology out of the U.S. or within the U.S. with the knowledge or intent that the data will be shipped or transmitted from the U.S. to a

15 foreign destination. No Company employee may transfer controlled technology to a Foreign National within the United States without a license or other government approval. B. Sufficient control and supervision must be exercised over all Company s employees, including those with foreign national status, with regard to technology transfer or release of technical experience. It is Company s intent to retain technology and/or experience sensitive to its business operations. Procedures regarding the protection of sensitive data serve as an additional safeguard, ensuring against inadvertent or intentional exportation of such information. C. All supervisors will ensure that employees within their respective areas of responsibility are properly instructed in the handling of controlled technology, and will further ensure that such information is disclosed only to persons for persons for whom a strict need to know has been established. D. A company official(s) with telephone number will be identified as the point of contact for this technology control plan. XIII. DEVIATION Any deviation or waiver from or exception to this procedure requires the prior approval of the Import/Export Manager.

16 ATTACHMENT A NON-DISCLOSURE AGREEMENT I have read and understand the [Company] Corporation Technology Transfer Control Plan (TTCP) for the [Product] Program and I will comply with the entire plan without exception. I acknowledge and understand that any controlled technology to which I have access or which is disclosed to me by Company, Inc., is subject to export control under the [Export Administration Regulations (Title 15, Code of Federal Regulations, Parts )] [International Traffic in Arms Regulations (Title `5, Code of Federal Regulations, Parts )]. I hereby certify that such data will not be further disclosed, exported, or transferred in any manner to any foreign national or any foreign country without prior written approval of the [Bureau of Industry and Security, Department of Commerce] [Directorate of Defense Trade Controls, Department of State]. Particularly, I will not re-transfer this data to a national of a country listed in Country Group D:1 or E:1 (as found in 15 CFR Pt. 740, Supp. 1). I understand that I can be subject to a fine or imprisonment if I am convicted of willful violation of any provision of any willful violation of U.S. laws and regulations relating to export controls. Employee Signature Employee Typed Name Dated

17 ATTACHMENT B TCP BRIEFING This is to acknowledge that I, , have read Company, Inc. s Technology Control Plan, have discussed the procedure with , and that I understand the procedures and agree to comply with its requirements. SIGNATURE: REPRESENTATIVE: DATE: DATE:

18 ATTACHMENT C Definitions Controlled technical data, (which includes materials and equipment) are defined as follows: 1. Information (i.e. technology), other than software as defined below, material and equipment which is required for the design, development, production, manufacture, assembly, operation, repair, testing, maintenance or modification of defense articles or included in the U.S. Munitions Lists (USML). Information may be in the form of blueprints, drawings, photographs, plans, instructions, and documentation. Information, material or equipment falling within the above categories also includes that which is still in the working or developmental stage, regardless of in process or deliverable status. The release of such information, materials, and equipment via any means (e.g. shipping) or media (e.g. spoken, or written) is not permitted without prime sponsor approval. 2. U.S. Government classified information relating to defense articles and defense services; classified information shall include all documents/information marked by any U.S. federal agency as Noforn (No Foreign Dissemination), Confidential, Secret and Top Secret. 3. Information covered by an invention secrecy order; 4. Software, as defined below, directly related to defense articles; Controlled Technical Data does not include information or software concerning general scientific, mathematical or engineering principles currently in the public domain. It also does not include basic marketing information on function or purpose or general system descriptions of defense articles. ITAR (22 CFR ) (reference c) NOTE: For security assistance and government contracting purposes, the Security Assistance Management Manual (SAMM para B) and the DEARS (Section (18) define "technical data" differently. Deemed export means: the transfer of export controlled items in the U.S. to a foreign national; the use by a foreign national of export controlled technologies in the U.S. Defense Articles/Services, for the purpose of the TCP, are articles and/or services that are controlled under either the Arms Export Control Act (AECA), Pub. L (1976), (22 USC 2751) for national defense, or the Export Administration Act of 1979, (EAA), Pub. L , (50

19 USC ) as amended for dual use, non-military applications. The term defense article under 22 CRF is defined to include both items and technical data. Empowered official (EO) is the administrative contact to assist researchers and administrators in the identification and management assessment of export control matters. The EO generally serves as the official university contact for governmental agencies with regard to export control matters. As required by U.S. Department of State International Traffic in Arms Regulations (ITAR), the EO is authorized to sign license applications or other export control-related requests for governmental approval on behalf of the university. Export, under the ITAR (22 CFR ) is defined as: 1. Sending or taking a defense article out of the U.S. in any manner, except by mere travel outside the U.S. by a person whose personal knowledge includes technical data; or 2. Transferring registration or control to a foreign person of any aircraft, vessel, or satellite covered by the US. Munitions List, whether in the U.S. or abroad; or 3. Disclosing (including oral or visual disclosure) or transferring in the U.S. any defense article to an embassy, any agency or subdivision of a foreign government (e.g. diplomatic mission); or 4. Disclosing (including oral or visual disclosure) or transferring controlled technical data to a foreign person, whether in the U.S. or abroad; or 5. Performing a defense service on behalf of, or for the benefit of, a foreign person, whether in the U.S. or abroad. Foreign national, under the ITAR, is any person who is not a citizen or national of the U.S. unless that person has been lawfully admitted for permanent residence, (i.e., is under immigrantvisa status, or individuals referred to as "immigrant aliens" under previous laws), in the U.S. under the Immigration and Naturalization Act (8 U.S.C 1101, section l0l (a) 20, 60 State. 163). The definition includes foreign corporations, i.e., corporations that are not incorporated in the U.S., international organizations, foreign governments and any agency or subdivision of foreign governments (e.g. diplomatic missions). The National Industrial Security Program Operating Manual (1995 version) distinguishes between a "foreign national" and an "immigrant alien," the latter defined as "any person lawfully admitted into the U.S. under an immigration visa for permanent residence" (i.e. one who possesses permanent resident, or immigrant-visa status). Foreign students that are on nonimmigrant status are therefore considered foreign nationals. Fundamental research: basic or applied research in science or engineering at an accredited institution of higher learning in the U.S. where the resulting information is not restricted in the form or content of its release to the public and is ordinarily published and shared broadly in the

20 scientific community. For EAR, published information is information that has been, is about to be, or is ordinarily published. The ITAR requirement is that the information has been published. Proprietary Information is information belonging to the Company or provided to the Company by another party which is identified in writing as "confidential" or "proprietary" and that: 1. Is not generally known or in the public domain, 2. Was not in a party's possession or was not known to it prior to its receipt from a disclosing party under a nondisclosure agreement, 3. Is not available on an unrestricted basis to a third party from the disclosing party or from someone acting under its control, 4. Is not required to be released by a court of competent jurisdiction, or otherwise required by law. Public Domain is all information that is currently published, generally accessible, or available to the public. For example: 1. Through sales at newsstands and bookstores; 2. Through subscriptions which are available without restriction to any individual who desires to obtain or purchase the published information; or 3. At libraries open to the public or from which the public can obtain documents; 4. Through issued patents; 5. Research in science and engineering at accredited institutions of higher learning where the resulting information can be published and shared broadly within the scientific community. Such research is termed fundamental research and is not subject to security classification or export control procedures. However, sponsored research conducted by a university is not considered fundamental if: a. The University or its researchers accept sponsor s restrictions on publication of scientific and technical information resulting from the project if the sponsor has indicated such action is required as a result of U.S. classified or export license control procedures; or, b. The research is funded by the U.S. Government and specific access and dissemination controls protecting information resulting from the research are applicable, e.g., ITAR (22 CFR ). Software includes, but is not limited to, the system functional design, logic flow, algorithms, application programs, operating systems and support software for design, implementation, test, operation, diagnosis and repair.

21 Technical Information (Technology) is information, i.e. technology, including scientific information, which relates to research, development, engineering, test, evaluation, production, operation, use, and maintenance of munitions and other military supplies and equipment. (DoD Directive ). U.S. person, under the ITAR, means a person (as defined in section of the ITAR) who is a lawful permanent resident as defined by 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 United States. It also includes any governmental (federal, state or local) entity. It does not include any foreign person as defined in section of the ITAR. U. S. Citizens: Includes those individuals whether by birth, or naturalization, and legal aliens with Green-Card status, i.e., permanent resident aliens.

22 ATTACHMENT 6 DEEMED EXPORTS AND RE-EXPORTS ITAR NON-DISCLOSURE AGREEMENT FOR FOREIGN NATIONAL EMPLOYEES (As Found in DDTC s Guidance on Licensing of Foreign Persons Employed by a U.S. Person) Non-Disclosure Agreement Access to ITAR-Controlled Defense Articles by Foreign Person Employees I, [name of foreign person], acknowledge and understand that any technical data related to a defense article covered by the U.S. Munitions List to which I have access per authorization by the U.S. Department of State, Directorate of Defense Trade Controls (DDTC) under [state relevant export license/authorization number**] and disclosed to me in my employment by [name of U.S. person] is subject to the export controls of the International Traffic in Arms Regulations (ITAR) (Title 22, Code of Federal Regulations, Parts ), particularly the 22 CFR clauses. 1. This authorization shall not enter into force, and shall not be amended or extended, without the prior written approval of the Department of State of the U.S. Government. 2. This authorization is subject to all United States laws and regulations relating to exports and to all administrative acts of the U.S. Government pursuant to such laws and regulations. 3. The parties to this authorization agree that the obligations contained in this authorization shall not affect the performance of any obligations created by prior contracts or subcontracts which the parties may have individually or collectively with the U.S. Government. 4. No liability will be incurred by or attributed to the U.S. Government in connection with any possible infringement or privately owned patent or proprietary rights, either domestic or foreign, by reason of the U.S. Government s approval of this authorization. 5. The technical data or defense services exported from the United States in furtherance of this authorization and any defense article which may be produced or manufactured from such technical data or defense service may not be transferred to a person in a third country or to a national of a third country except as specifically authorized in this authorization unless the prior written approval of the Department of State has been obtained. 6. All provisions in this authorization which refer to the United States Government and the Department of State will remain binding on the parties after the termination of the authorization.

23 During my employment with [name of U.S. person], I am authorized to interact and participate in discussions with other U.S. and foreign person, and disclose technical data as necessary, while performing my job duties covered under DDTC [case number]. It will be the responsibility of my employer, [name of U.S. person], to notify other U.S. and foreign persons of my status as a foreign national employee prior to my interaction. I also acknowledge and understand that should I inadvertently receive technical data or defense articles for which I have not been granted access authorization by DDTC, or if I inadvertently export technical data or defense articles received during my employment to an unauthorized recipient, I will report such unauthorized transfer and acknowledge the transfer to be a violation of U.S. Government regulations. In furtherance of the above, I hereby certify that all defense articles, including related technical data, to which I have access will not be used for any purpose other than that authorized by DDTC and will not be further exported, transferred, disclosed via any means (e.g., oral disclosure, electronic, visual access, facsimile message, telephone) whether in its original form, modified, or incorporated in any other form, to any other foreign person or any foreign country without the prior written approval of DDTC. Signature Foreign Person (Employee) Date Signature U.S Person (Employer) Date **Please leave sufficient space to enter the DDTC case number once approval is received.**