Export Controls

1
Export Controls US Sanctions Faculty Awareness
Sessions Making It Relevant
Erica Kropp Director, Research Administration
Advancement University of Maryland Center for
Environmental Science Donald Deyo,
Esq. Director, Corporate Contracts, Office of
Research Services University of
Pennsylvania NCURA Region II Meeting April
2006

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What are Export Control Laws

• US laws that regulate the distribution to
  foreign nationals and foreign countries of
  technical products, services and information
  which are controlled for reasons of foreign
  policy and national security.
• Export control laws apply to all activities not
  just sponsored projects

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What is an Export?

• Export is defined very broadly to include an
  oral or written disclosure of information, visual
  inspection, or actual shipment outside the U.S.
  of technology, software/code or equipment to a
  foreign person (not a US citizen or permanent
  resident)
• Any method of disclosure may apply email,
  telephone, websites, tours training sessions

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And What is a Deemed Export?

• Deemed Export is probably of greatest concern
  to Universities. It is the release of controlled
  technologies to a foreign national in the U.S.
• So any of the methods of disclosure on your
  own campus to a foreign national is an export and
  all the rules and regulations apply, even though
  much more difficult to address.

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US Export Controls and Responsible Agencies

• State Department Inherently military
  technologies--International Traffic in Arms
  Regulations (ITAR)
• Examples usually clearly Military
• -Firearms and Armaments
• -Military Training Equipment
• -Protective Personnel Equipment
• -Tanks and Military Vehicles
• But also spacecrafts/satellites related
  equipment

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US Export Controls and Responsible Agencies

• Commerce Department Dual-Use technologies
  (primary civil use) -- Export Administration
  Regulations (EAR)
• Examples not as clearly subject to controls
• Computers
• Marine
• Materials, Chemicals, Micro-Organisms, Toxins
• Sensors and Lasers
• Nuclear Materials

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US Export Controls and Responsible Agencies

• Treasury Department, Office of Foreign Assets
  Control (OFAC) Prohibits transactions with
  countries subject to boycotts, trade sanctions,
  embargoes
• Examples
• Iran
• N. Korea
• Cuba
• Burma

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Export Controls or Sanctions

• Export controls are placed based on technologies
  (EAR/ITAR)
• Sanction programs are country specific and
  controls may cover any and all technologies and
  activities (OFAC)

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Why Do We Need to Educate?

• Law of land
• Mitigate risks
• Help identify issues/problems
• Government attention and expectations
• Element of compliance plan/program
• Required if accept controlled information

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Why Do We Need to Educate?

• Other Considerations
• Universities understand that the need to have
  comprehensive compliance programs
• However, Export Control compliance has elements
  which are alien to the open and inclusive nature
  of University research (cant work with certain
  people or freely share information on my
  research?!)
• Faculty and staff need to rethink the nature of
  University research post 9/11

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Implications of Export Laws

• No effect on most of university research as
  qualifies for Fundamental Research exclusion per
  the following
• Basic or applied research in science or
  engineering
• at an accredited institution of higher learning
  in the U.S.
• resulting information is ordinarily published and
  shared broadly in the scientific community
• No access or dissemination controls accepted

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Implications of Export Laws

• But potential impact on
• Ability of foreign students to participate in
  research involving a controlled technology
  (mostly under ITAR)
• Ability to provide services (including training
  in the use of controlled equipment) to foreign
  nationals or in foreign nations (ITAR, EAR, OFAC)
• Ability to send controlled equipment to foreign
  countries (ITAR, EAR, and OFAC)
• Faculty in generally as they are personally
  liable for their actions and subject to fines and
  sanctions, including loss of federal funding

13
Implications of Export Laws

• Factor to be considered if/when project
  restrictions are accepted
• Factor to be considered when accepting another
  parties information
• Likely to require some internal review processes
• Time and resources can effect project schedules

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Whats in a Name?

• Administrators Dont Train Faculty
• Call it something else -
• Seminar
• Awareness Sessions
• Information Meeting
• Discussion Groups

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Not a One Size Fits All

• Not all need to hear or see the same presentation
• Research Administrators - more detailed training
  including internal process
• Faculty - broader view with focus on effects on
  research, whom to contact for assistance and, of
  course, penalties for violations
• Suggest you get the Dean or Chair to call the
  meeting to increase faculty attendance
• Some cases a power point presentation is
  appropriate others the slides as a handout to
  be used to guide the discussion. Keep it as
  simple as possible!

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Which Faculty First?

• Which departments or faculty? Pick the projects
  where you think your greatest risks
• Look to where your federal funding is from -
  DoD, NSA, DHS, NASA
• Projects with commercial sponsors
• Engineering/ Computer Science
• International projects
• Biological Research in Toxins, Vaccines
• Certain PIs we all have them
• Look to your projects with red flag items

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Red Flag Items

• Shipping equipment to a foreign country?
• Collaborating with foreign colleagues in foreign
  countries?
• Working with a country subject to a US boycott?
• Training foreign nationals in using equipment?
• Using another parties proprietary information?
• Sponsor approval rights over publications?
• Shipping toxic biological materials?
• Sponsor approval for foreign national
  participation?

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Methods and Formats

• Use several and/or all-
• Scheduled sessions
• Less formal meeting discussions
• One-on-one/ small groups
• On-line/CD material
• Invite in to attend/ go out to departments
• Provide information, guidance and plan on website

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Some Topics to Cover

• What is an export
• Regulating agencies
• Implications of Regulations
• Embargoes/Sanctions
• Deemed exports
• Exemptions/Exclusions
• How to protect exclusions
• What destroys the use of exclusions
• Fundamental Research
• Shipping outside the US

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More Topics to Cover

• Providing Services
• Acceptance and use of export controlled
  information
• License process/timing issues
• Red flag items
• Institution policy procedures
• Penalties for violations
• Whom to call/contact with questions
• Who your Empowered Official is
• Examples

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Make It Relevant

• Review list of technologies and use examples for
  the field -
• Anthropologist or environmentalist - issues with
  GPS or other equipment abroad maybe sanctioned
  country
• Software use and development foreign national
  one of the creators and now want to
  commercialize
• Faculty may be the only person able to properly
  classify technology. Get their help!
• Use situations they have
• Need to use equipment with proprietary manuals

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Make It Relevant

• Do the faculty you are addressing
• Have Foreign visitors to labs?
• Travel abroad and take laptop?
• Foreign collaborators?
• Materials to be shipped outside US?
• Post data and results on Websites open the
  public?

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Make It Relevant

• Developing software?
• Impact if held proprietary
• Need to make source code available
• Use software in classroom?
• Use or create secured websites?
• Signing non-disclosure agreements?
• MOUs that you might not see?

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Acknowledge Pending Issues

• Item of concern pending with Commerce Department
  in regard to use of equipment
• There are no clear exclusions or safe harbors
  from the requirement to obtain a license for
  foreign nationals to use controlled equipment,
  however universities,
• Rely on the Fundamental Research Exclusion on the
  ground that use of equipment is part and parcel
  of conducting fundamental research, and.
  contd.

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Equipment Use Exclusions?

• Maintain that the Education Exclusion applies
  when the program of instruction requires use of
  equipment.
• However, there are no exclusions that allow
  foreign persons to use controlled equipment which
  requires use of manufacturers proprietary
  information marked export controlled.

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Now You Get Questions

• May not always have clear answers
• May need further assessment
• Usually requires you to ask questions in return
• May need to ask agencies (but careful what you
  ask)
• Involve legal counsel (are they by your side?)

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Now You Get Questions

• Ask colleagues at other institutions
• Check out companies that can quickly screen
  government lists
• Faculty need to want to come to you for help
• If a mistake has been made, come clean
• What you need to demonstrate is an effort to
  comply!

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How much is enough?

• Education is part of a Compliance Plan not to
  be confused with a Technology Control Plan which
  is required if one seeks a license or handles
  controlled information
• Remember, faculty should know
• Who to call if topic comes up
• Situations that might call for review
• The basic principles/concepts that allow them to
  operate, for the most part, with business as
  usual
• Personal responsibilities and liabilities

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Others Who Need Sessions

• Deans Chairs
• Research administrators (central and department)
• Tech Transfer
• Procurement/shipping
• Research Committees/Councils

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And Others

• Continuing Education
• Library (DD2345? May house controlled
  information)
• Travel Office
• International Programs

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Dont Reinvent the Wheel!

• Most of us are quite willing to share what is
  already done
• (www.umresearch.umd.edu/ORAA/ecg)
• (www.upenn.edu/researchservices/exportcontrols)
• Look more than once things evolve
• Cut paste - Modify to your own culture
• But get started!