Briefing on Export Control Regulations

1
Briefing on Export Control Regulations

• Wayne State University
• Office of the Vice President for Research

2
What are Export Controls?

• Federal regulations that control the conditions
  under which certain information, technologies,
  and commodities can be transmitted overseas to
  anyone, including U.S. citizens, or to a foreign
  national on U.S. soil. 
• Export control laws apply to a broad range of
  University activities and may have a substantial
  impact on WSUs academic and research programs

3
Regulatory Agencies

• Department of Commerce
• Export Administration Regulations (EAR)
• Department of State
• International Traffic in Arms Regulations (ITAR)
• Department of Treasury
• Office of Foreign Assets Control (OFAC)

4
What Areas of Universities are Affected by Export
Control Regulations?

• Research
• Engineering, medicine, nursing, pharmacology,
  sciences, et al.
• Education and Training
• Computing and Information Technology
• Technology/Material Transfer
• Grants and contracts
• Visiting Scientist and Scholars

• International Travel
• International Study Programs
• Purchasing
• Shipping
• Environmental Health and Safety
• International collaborations

Other areas of vulnerability?
5
Key Terms

• Foreign National
• Deemed Exports
• Use
• Dual Use
• Fundamental Research Exemptions/Exclusions

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Foreign National

• Any person who is not a lawful permanent resident
  of the U.S. (a U.S. citizen, a legal permanent
  resident green card holder or under U.S. asylum
  protection)
• Any foreign corporation or other entity or group
  that is not incorporated or organized to do
  business in the U.S.
• Any foreign government

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Deemed Export

• The transfer of goods, technology or source code
  within the United States to a Foreign National
• Includes oral, visual or written disclosure (i.e.
  laboratory tours, websites, emails, research
  collaboration and oral exchanges of information)
• Applies to disclosures to research assistants,
  students, visiting foreign researchers, and U.S.
  citizens visiting a foreign country

8
Use

• Equipment operation, installation, maintenance,
  repair, overhaul, refurbishing
• If all 6 activities are present then some foreign
  nationals may be restricted with regard to use
  of equipment

9
Dual Use

• Any technology or information that has both a
  military and civilian use
• Examples include computers, software code,
  microorganisms and toxins, electronics, sensors,
  lasers, and
• telecommunications

10
Fundamental Research

• Basic and applied research in science and
  engineering, the results of which ordinarily are
  published and shared broadly within the
  scientific community as distinguished from
  proprietary research and from industrial
  development, design, production and product
  utilization, the results of which ordinarily are
  restricted for proprietary or national security
  reasons. (NSDD-189)
• May not apply to ITAR-controlled items

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Components of Fundamental Research

• Information that is generally accessible to the
  interested public
• Periodicals, books, print, electronic and other
  media forms
• Libraries
• Open conferences
• Released by instruction in catalog courses
• Associated teaching laboratories of academic
  institutions
• Public information available on a patent
  application

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Fundamental ResearchExclusion

• The Export Control Regulations do not apply to
  Fundamental Research
• Approximately 90 of all research falls under the
  Fundamental Research exclusion.
• HOWEVER
• Export Controls do apply if the University
  accepts any contract that
• Requires the exclusion of Foreign Nationals from
  participation (i.e. a license may be required)
• Restricts publication or disclosure of research
  results more than 90 days (e.g. for sponsor
  review)
• Approval differs from review

13
Employment Exclusion

• No license is required in order to share
  controlled technical information with a foreign
  person who
• Is a full-time, bona fide university employee
• AND
• Has a permanent address in the US while employed,
  provided that person
• Is not a national of a country to which exports
  are prohibited, and
• Is advised in writing not to share controlled
  information with other foreign persons.
• ITAR only

14
Education Exclusion

• No license is required to share with foreign
  persons information concerning general
  scientific, mathematical or engineering
  principles commonly taught in universities or
  information in the public domain.

15
Sanctions and Penalties

• Individual and institutional
• Criminal
• Up to 1 million for a university
• Up to 1 million for individuals per violation
• Up to 20 years imprisonment - EAR
• Up to 10 years imprisonment - ITAR
• Civil
• Seizure and forfeiture of controlled item(s)
• Up to 500,000 fine per violation
• Revocation of exporting privileges

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Do These Regulations Really Apply to University A
ctivities?
Former University of Tennessee Professor John
Reece Roth begins serving a 4 year prison
sentence for sharing military research
data. Posted Tuesday, February 1, 2012
Department of Justice U.S. Attorney William C.
Killian, Eastern District of Tennessee As a UT
professor, Dr. J. Reece Roth obtained an U.S. Air
Force (USAF) contract to develop plasma
actuators. During the course of that contract he
allowed two foreign national students access to
exported controlled data and equipment which
violated the Arms Export Control Act (AECA). In
September 2008, Dr. J. Reece Roth was convicted
of conspiracy, wire fraud, and 15 counts of
exporting defense articles and services without
a license. On January 18, 2012 all of his
appeals were denied and he is currently serving
time in a federal prison.

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Department of Commerce (EAR) Examples of
Restrictions

• Technology (specific information necessary for
  development, production or use of a product)
• Technical Data (i.e. blueprints, diagrams,
  formulae, manuals and instructions etc.)
• Use (operation, installation, maintenance,
  repair, overhaul and refurbishing)
• advanced materials, telecommunications,
  microelectronics, encryption, optoelectronics,
  biotechnology, computing

Lists are subject to change
18
Department of Commerce (EAR) Additional
Restrictions

• Country
• Control of items based on technical parameters
  and country of ultimate destination.
• Denied Persons
• Persons denied export privileges, in whole or in
  part.
• Denied Entity
• Organizations identified as engaging in
  activities related to the proliferation of
  weapons of mass destruction.
• Depending on the item, a license may be required
  to export to an organization on the Entity List
  even if one is not otherwise required.

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Examples of Restricted Countries

• Terrorism concerns
• Cuba, Iran, North Korea, Syria and Sudan
• Trade sanctions against transactions of value
• Cuba, Balkans, Iran, Iraq, Libya, North Korea,
  Burma, Liberia, Sudan, Syria, Zimbabwe

• Includes provision of services (i.e. surveys and
  interviews training marketing and business
  services).
• Sanctioned countries are subject to change.

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How Is the University Affected by Export Control
Restrictions?

• The University may be required to obtain prior
  approval from State, Commerce, and/or OFAC for
• Foreign nationals to participate in research
• Collaborating with foreign nationals/entities
• International travel
• Sharing research (verbally or in writing) with
  Foreign Nationals
• Before allowing material transfer to designated
  persons or countries
• if exception/exemption is not applicable

21
Export Control Reform

• In August 2009 the President initiated an
  interagency review of the U.S. export control
  system, which calls for fundamental reform of the
  current system in order to enhance U.S. national
  security and strengthen our ability to counter
  threats by
• Focusing on the threats that matter most
• Increasing business with our Allies
• Strengthening the U.S. defense industry by
  reducing current incentives to foreign
  manufacturers who typically seek alternative
  designs to avoid purchasing U.S. parts and
  components regulated by U.S. export controls.
• The Administration is implementing the reform in
  three phases
• Phases I and II reconcile various definitions,
  regulations, and policies for export controls,
  all the while building toward Phase III.
• Phase III will create a single control list,
  single licensing agency, unified information
  technology system, and enforcement coordination
  center.
• On April 16, 2013, a major milestone in Export
  Control Reform was reached as the first pair of
  rules implementing Export Control Reform were
  published.
• http//export.gov/ecr/eg_main_047329.asp

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Summary

• Export Control Regulations have far-reaching
  implications on everyday University activities
• Many units (administrative, academic, research)
  of the University are affected
• Compliance with regulations requires a
  university-wide oversight program
• Non-compliance with regulations places the
  University and its personnel at risk of fines
  and/or imprisonment

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• Please visit our website for additional
  information at http//www.research.wayne.edu/expo
  rt-control/index.php
• or
• Contact Us
• Export Control Regulatory Compliance
  OfficeOffice of the Vice President for
  Research5057 Woodward Ave, Suite 2317Detroit,
  MI 48202Phone [phone]
• Email exportcontrol_at_wayne.edu