Briefing on Export Control Regulations

Briefing on Export Briefing on Export Control RegulationsControl Regulations

Wayne State UniversityWayne State University

Office of the Vice President for ResearchOffice of the Vice President for Research

What are Export Controls?What are Export Controls?

• Federal regulations that control the conditions Federal regulations that control the conditions under which certain information, technologies, under which certain information, technologies, and commodities can be transmitted overseas and commodities can be transmitted overseas to anyone, including U.S. citizens, to anyone, including U.S. citizens, or to a or to a foreign national on U.S. soil.foreign national on U.S. soil.  

• Export control laws apply to a broad range of Export control laws apply to a broad range of University activities and may have a University activities and may have a substantial impact on WSUsubstantial impact on WSU’’s academic and s academic and research programsresearch programs

Regulatory AgenciesRegulatory Agencies

Department of CommerceDepartment of Commerce Export Administration Regulations (EAR)Export Administration Regulations (EAR)

Department of StateDepartment of State International Traffic in Arms Regulations International Traffic in Arms Regulations

(ITAR)(ITAR)

Department of TreasuryDepartment of Treasury Office of Foreign Assets Control (OFAC)Office of Foreign Assets Control (OFAC)

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

ResearchResearch Engineering, medicine, Engineering, medicine,

nursing, pharmacology, nursing, pharmacology, sciences, et al. sciences, et al.

Education and TrainingEducation and Training Computing and Computing and

Information TechnologyInformation Technology Technology/Material Technology/Material

TransferTransfer Grants and contractsGrants and contracts Visiting Scientist and Visiting Scientist and

ScholarsScholars

International TravelInternational Travel International Study International Study

ProgramsPrograms PurchasingPurchasing Shipping Shipping Environmental Environmental

Health and SafetyHealth and Safety International International

collaborationscollaborations

Other areas of vulnerability?

Key TermsKey Terms

Foreign NationalForeign National Deemed ExportsDeemed Exports UseUse Dual UseDual Use Fundamental Research Fundamental Research

Exemptions/ExclusionsExemptions/Exclusions

Foreign NationalForeign National

Any person who is not a lawful permanent Any person who is not a lawful permanent resident of the U.S. (a U.S. citizen, a legal resident of the U.S. (a U.S. citizen, a legal permanent resident [green card holder] or permanent resident [green card holder] or under U.S. asylum protection) under U.S. asylum protection)

Any foreign corporation or other entity or Any foreign corporation or other entity or group that is not incorporated or group that is not incorporated or organized to do business in the U.S.organized to do business in the U.S.

Any foreign governmentAny foreign government

Deemed ExportDeemed Export The transfer of goods, technology or The transfer of goods, technology or

source code source code withinwithin the United States to a the United States to a Foreign NationalForeign National

Includes oral, visual or written disclosure Includes oral, visual or written disclosure (i.e. laboratory tours, websites, emails, (i.e. laboratory tours, websites, emails, research collaboration and oral exchanges research collaboration and oral exchanges of information)of information)

Applies to disclosures to research Applies to disclosures to research assistants, students, visiting foreign assistants, students, visiting foreign researchers, and U.S. citizens visiting a researchers, and U.S. citizens visiting a foreign countryforeign country

UseUse

Equipment operation, installation, Equipment operation, installation, maintenance, repair, overhaul, maintenance, repair, overhaul, refurbishingrefurbishing

If all 6 activities are present then If all 6 activities are present then some foreign nationals may be some foreign nationals may be restricted with regard to restricted with regard to ““useuse”” of of equipmentequipment

Dual UseDual Use

Any technology or information that has both Any technology or information that has both a military and civilian usea military and civilian use

Examples include: computers, software Examples include: computers, software code, microorganisms and toxins, code, microorganisms and toxins, electronics, sensors, lasers, and electronics, sensors, lasers, and telecommunicationstelecommunications

Fundamental ResearchFundamental Research

““Basic and applied research in science and Basic and applied research in science and engineering, the results of which ordinarily engineering, the results of which ordinarily are published and shared broadly within the are published and shared broadly within the scientific community as distinguished from scientific community as distinguished from proprietary research and from industrial proprietary research and from industrial development, design, production and development, design, production and product utilization, the results of which product utilization, the results of which ordinarily are restricted for proprietary or ordinarily are restricted for proprietary or national security reasonsnational security reasons””. (NSDD-189). (NSDD-189)

*May not apply to ITAR-controlled items*May not apply to ITAR-controlled items

Components of Components of Fundamental ResearchFundamental Research

Information that is generally accessible to the Information that is generally accessible to the interested public:interested public:

• Periodicals, books, print, electronic and other Periodicals, books, print, electronic and other media formsmedia forms

• LibrariesLibraries• Open conferencesOpen conferences• Released by instruction in catalog coursesReleased by instruction in catalog courses• Associated teaching laboratories of academic Associated teaching laboratories of academic

institutionsinstitutions• Public information available on a patent Public information available on a patent

applicationapplication

Fundamental ResearchFundamental ResearchExclusionExclusion

The Export Control Regulations The Export Control Regulations do notdo not apply to apply to Fundamental ResearchFundamental Research• Approximately 90% of all research falls under the Approximately 90% of all research falls under the

Fundamental Research exclusionFundamental Research exclusion..

HOWEVERHOWEVER Export Controls Export Controls do applydo apply if the University accepts if the University accepts

any contract thatany contract that• Requires the exclusion of Foreign Nationals from Requires the exclusion of Foreign Nationals from

participation (i.e. a license may be required)participation (i.e. a license may be required)• Restricts publication or disclosure of research results Restricts publication or disclosure of research results

more than 90 days (e.g. for sponsor review)more than 90 days (e.g. for sponsor review)• Approval differs from reviewApproval differs from review

Employment ExclusionEmployment Exclusion

No license is requiredNo license is required in order to share controlled in order to share controlled technical information with a foreign person who:technical information with a foreign person who:

Is a full-time, Is a full-time, bona fidebona fide university employee university employee

ANDAND Has a permanent address in the US while employed, Has a permanent address in the US while employed,

provided that personprovided that person Is not a national of a country to which exports are Is not a national of a country to which exports are

prohibited, and prohibited, and Is advised in writing not to share controlled Is advised in writing not to share controlled

information with other foreign persons.information with other foreign persons.

* ITAR only* ITAR only

Education ExclusionEducation Exclusion

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

Sanctions and PenaltiesSanctions and Penalties

Individual and institutionalIndividual and institutional• CriminalCriminal

Up to $1 million for a universityUp to $1 million for a university Up to $1 million for individuals per violation Up to $1 million for individuals per violation Up to 20 years imprisonment - EARUp to 20 years imprisonment - EAR Up to 10 years imprisonment - ITARUp to 10 years imprisonment - ITAR

CivilCivil Seizure and forfeiture of controlled item(s)Seizure and forfeiture of controlled item(s) Up to $500,000 fine per violationUp to $500,000 fine per violation Revocation of exporting privilegesRevocation of exporting privileges

Do These Regulations Really Applyto University Activities?

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.

Department of Commerce Department of Commerce (EAR)(EAR) Examples of Restrictions*Examples of Restrictions*

TechnologyTechnology (specific information (specific information necessary for necessary for development, production or development, production or use of a productuse of a product))

Technical Data Technical Data (i.e. blueprints, diagrams, (i.e. blueprints, diagrams, formulae, manuals and instructions etc.)formulae, manuals and instructions etc.)

UseUse (operation, installation, maintenance, (operation, installation, maintenance, repair, overhaul repair, overhaul andand refurbishing) refurbishing)

advanced materials, telecommunications, advanced materials, telecommunications, microelectronics, encryption, optoelectronics, microelectronics, encryption, optoelectronics, biotechnology, computingbiotechnology, computing

* Lists are subject to change

Department of CommerceDepartment of Commerce (EAR) (EAR) Additional RestrictionsAdditional Restrictions

Country Country • Control of items based on technical parameters and Control of items based on technical parameters and

country of ultimate destination.country of ultimate destination.

Denied Persons Denied Persons • Persons denied export privileges, in whole or in part. Persons denied export privileges, in whole or in part.

Denied Entity Denied Entity • Organizations identified as engaging in activities related Organizations identified as engaging in activities related

to the proliferation of weapons of mass destruction. to the proliferation of weapons of mass destruction. • Depending on the item, a license may be required to Depending on the item, a license may be required to

export to an organization on the Entity List export to an organization on the Entity List even if one is even if one is not otherwise required. not otherwise required.

Examples of Restricted CountriesExamples of Restricted Countries Terrorism concernsTerrorism concerns

• Cuba, Iran, North Korea, Syria and Cuba, Iran, North Korea, Syria and SudanSudan

Trade sanctions against transactions of Trade sanctions against transactions of value* value* • Cuba, Balkans, Iran, Iraq, Libya, North Cuba, Balkans, Iran, Iraq, Libya, North

Korea, Burma, Liberia, Sudan, Syria, Korea, Burma, Liberia, Sudan, Syria, Zimbabwe*Zimbabwe*

Includes provision of services (i.e. surveys and Includes provision of services (i.e. surveys and interviews; training; marketing and business interviews; training; marketing and business services).services).

Sanctioned countries are subject to change. Sanctioned countries are subject to change.

How Is the University Affected by How Is the University Affected by Export Control Restrictions?Export Control Restrictions?

The University may be required to obtain prior The University may be required to obtain prior approval from State, Commerce, and/or OFAC for: approval from State, Commerce, and/or OFAC for: • Foreign nationals to participate in researchForeign nationals to participate in research• Collaborating with foreign nationals/entitiesCollaborating with foreign nationals/entities• International travelInternational travel• Sharing research (verbally or in writing) with Sharing research (verbally or in writing) with

Foreign Nationals Foreign Nationals • Before allowing material transfer to designated Before allowing material transfer to designated

persons or countriespersons or countries*if exception/exemption is not *if exception/exemption is not

applicableapplicable

Export Control ReformExport Control ReformIn 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 mostIncreasing 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

SummarySummary

Export Control Regulations have far-Export Control Regulations have far-reaching implications on everyday reaching implications on everyday University activitiesUniversity activities

Many units (administrative, academic, Many units (administrative, academic, research) of the University are affectedresearch) of the University are affected

Compliance with regulations requires a Compliance with regulations requires a university-wide oversight programuniversity-wide oversight program

Non-compliance with regulations places Non-compliance with regulations places the University and its personnel at risk of the University and its personnel at risk of fines and/or imprisonmentfines and/or imprisonment

Please visit our website for additional information at: Please visit our website for additional information at: http://www.research.wayne.edu/export-control/index.php

oror

Contact UsContact Us

Export Control & Regulatory Compliance OfficeExport Control & Regulatory Compliance OfficeOffice of the Vice President for ResearchOffice of the Vice President for Research5057 Woodward Ave, Suite 23175057 Woodward Ave, Suite 2317Detroit, MI 48202Detroit, MI 48202Phone: 313-577-9064Phone: 313-577-9064

Email: Email: [email protected]